Parmerter v. State

OPINION OF THE COURT

Defendant has moved for summary judgment dismissing each of the above claims.^[1] Claimants have cross-moved for summary judgment. On consideration, the motion and cross motion will be denied.

The above claims arise from the deaths of Shannon Parmerter and John H. Mattia on the early morning of May 1, 2004, after socializing together at several bars or clubs.^[2] It is alleged that the decedents died after they traveled northbound^[3] on Fuhrmann Boulevard in the City of Buffalo in Mr. Mattia’s vehicle,

The claims against the State relate to the reconstruction of Fuhrmann Boulevard in the area of the Union Ship Canal between 1988 and 1992. Claimants contend that defendant’s Department of Transportation (DOT) was negligent in its design, construction, maintenance and/or inspection of Fuhrmann Boulevard on its approach to the canal, and its intersection with Commerce Street, such that there was a dangerous curve adjoining the canal that was not adequately shielded with guide rails or other barriers. Other allegations of negligence include inadequate sight distances, lighting, signage, speed regulation and traffic control devices, as well as the claimed failure of the DOT to review and reevaluate its traffic plan and roadway design in light of its actual operation and accident history, and to properly maintain its signage and barriers following the initial construction.

The State now moves for summary judgment dismissing the claims on the ground that it does not own or maintain the area of Fuhrmann Boulevard in question, and has not been responsible for that site since it accepted the reconstructed roadway in April of 1992. In addition, defendant contends that its initial

According to David R. Christopher, who presently serves as the resident engineer for the DOT’s North Erie County Residency^[5] (see affidavit in support of Richard B. Friedfertig, sworn to Aug. 29, 2011 [Friedfertig affidavit], exhibit R [affidavit of David R. Christopher, sworn to Aug. 28, 2011, with attachments]),^[6] Fuhrmann Boulevard in the area in question was reconstructed between 1988 and 1992 under contract No. D500769 as a state-administered contract for a roadway owned by the City of Buffalo pursuant to Highway Law §§ 349-c and 349-e. As part of the project the State initially declared the site to be a restricted highway in and about 1988. According to Mr. Christopher that restricted status, and with it the State’s control of the site, would have ended no later than April 3, 1992, when the State formally accepted the completed contract. Based upon his review of the record plans for the reconstruction project, and his duties as the resident engineer for the area in question, Mr. Christopher opined to a reasonable degree of engineering certainty that the section of Fuhrmann Boulevard within the City of Buffalo wherein the accident reportedly occurred was owned by the City, and not the State. He also averred, again with engineering certainty, that following the State’s acceptance of the project it was the City of Buffalo, and not the State, that possessed maintenance responsibility for that roadway in the area involved. The resident engineer further observed that, by reason of its ownership and maintenance responsibilities, the City was free to review and implement both signage and/or design changes as it deemed appropriate over the 12 years that transpired between the project’s acceptance and the Parmerter/Mattia accident.

Mr. Christopher also made note of records memorializing that representatives of the City of Buffalo participated in a final inspection of the project on December 17, 1991, and that two of the City’s sewer and lighting representatives then accepted the

In further support of its contention that the City of Buffalo possessed exclusive maintenance responsibility for Fuhrmann Boulevard after the project was completed defendant has tendered various deposition excerpts, including those of Donald Joseph Foleto, an assistant engineer within the City of Buffalo’s Department of Public Works (see Friedfertig affidavit, exhibit W [excerpts of examination before trial of Donald Joseph Poleto]).^[7] While acknowledging a lack of knowledge with respect to the reconstruction project in question, Mr. Poleto did report that upon the completion of such a contract a city engineer would inspect the work site to determine compliance with the contract, before acceptance. He also acknowledged that in 1995 or 1998 he was directly involved in the City’s installation of certain chevron signs in the Fuhrmann Boulevard area, to replace signs that had become missing in the years that followed the initial reconstruction. Similarly, deposition excerpts from John D. Bidell, also employed by the City of Buffalo’s Department of Public Works (see Friedfertig affidavit, exhibit Y [excerpts of examination before trial of John D. Bidell]),^[8] support that at the time of the incident the section of Fuhrmann Boulevard in question was maintained exclusively by the City of Buffalo, with those functions including all roadway surfaces, lighting, striping, signage, landscaping and drainage (id. at 56).

In addition to alleging a lack of ownership and maintenance responsibilities the State has urged that the initial manner of signage placement, advisory speed and line striping all fell

The State also urges that even in the absence of formal agreement, the informal acceptance of maintenance and repair responsibilities by the City has relieved it from any duty in that regard.

In my view, defendant’s opinion evidence regarding the State’s lack of responsibility for the area of the accident must yield to the provisions of article XII-B, and the case authority interpreting those provisions. That statute, originally enacted in 1944, created “a State-wide system for the use of State and Federal funds in the construction and modernization of State arterial highways” (Nowlin v City of New York, 81 NY2d 81 , 86 [1993]). State arterial highways are roadways running through localities that connect to state highways (Nowlin, 81 NY2d at 86 ; Albanese v City of New York, 5 NY3d 217 , 220 [2005]). In addressing those highways the statute distinguishes between the City of New York and other cities in a number of respects. Significantly, “although the State has the ultimate responsibility for maintenance of state arterial highways located in cities, New York City is the only city that retains ‘jurisdiction’ over those roads” (Matter of City of New York v State of New York, 98 NY2d 740 , 742 [2002], citing Highway Law § 349-c [3.4]). Thus, once the State has completed a construction or reconstruction project for an arterial highway within New York City, section 349-c (3.4) requires it to return jurisdiction to that city.^[10] Even then, however, Highway Law § 349-c (7)-(9) “contemplates that the State retains continuing maintenance responsibility for state arterial highways it has constructed or reconstructed” (Nowlin, 81 NY2d at 86-87 ; but compare Albanese, 5 NY3d at 220 [which indicates that the State possesses the discretion— i.e., “may” — retain such maintenance responsibilities upon transferring jurisdiction to the City of New York]). In contrast, article XII-B makes no express provision for the State to return “jurisdiction” of constructed or reconstructed arterial highways to other affected cities. Rather, the statute recites a different

Having reviewed article XII-B I cannot hold, as a matter of law, that the State would have been relieved from liability arising from the initial design and reconstruction or subsequent maintenance and repair of the area, irrespective of whether the City of Buffalo had accepted the completed project in late 1991 or the spring of 1992. My denial of relief is based in part on the lack of any evidence of a maintenance agreement with the City for the reconstructed Fuhrmann Boulevard,^[11] and in part upon the ongoing control that the Commissioner of Transportation exerts over state arterial projects outside of the City of New York under article XII-B. Again, that statute at least arguably supports that the State would continue to be bound under traditional concepts of nondelegable duty of reasonable care for its role in the initial reconstruction of Fuhrmann Boulevard (see Friedman v State of New York, 67 NY2d 271 , 283 [1986]), and in keeping that roadway in a reasonably safe condition in the years that followed (see id., citing Weiss v Fote, 7 NY2d 579 , 584 [1960], rearg denied 8 NY2d 934 [I960]).

Defendant’s second ground for summary judgment, that its manner of design and construction of the highway between 1988 and 1992 complied with the MUTCD, certain AASHTO provisions, and the Highway Design Manual, and otherwise conformed with sound engineering principles, must similarly fail for several reasons. In that regard, I once again note that a question of fact exists as to whether the DOT would have continued to be responsible for the maintenance and repair of Fuhrmann Boulevard beyond April of 1992, in light of the apparent lack of a maintenance agreement with the City of Buffalo for the reconstructed highway, and the potential for retained responsibility for the roadway under article XII-B. That arguable duty for maintenance and repair is not only significant in its own right, but also in assessing whether the qualified immunity that might otherwise have attached to the State’s initial highway design determinations under Weiss v Fote ( 7 NY2d at

Based upon Ms. Thompson’s affidavit it appears that the State limited its purpose in the installation of guide rails along Commerce Street to the shielding of columns that supported an elevated roadway. The State’s expert offered opinions regarding the lack of practicality or sufficient distance to erect jersey barriers or other attenuators, and the lack of need for those devices in light of speed constraints, signage, and the location of the canal beyond the roadway’s clear zone, although all in a conclusory manner, and without any indication that some or all of those factors led to an affirmative judgment by the DOT not to erect barriers along the 90-degree intersections next to the canal, and instead to focus upon the shielding of support columns. In response, claimants’ expert, Richard N. Reisch, has opined, inter alia, that barrier devices with attenuators should have been constructed to help prevent vehicles from driving into the canal.^[12] In addition, claimants have presented proof of a similar one-car accident in March of 1991, while construction was ongoing, wherein another operator reportedly drowned after failing to negotiate a 90-degree turn from Fuhrmann Boulevard onto Commerce Street, and entered the canal (see

Irrespective of the above, the State has failed in its initial burden of establishing, as a matter of law, that the roadway otherwise had been maintained in a reasonably safe condition on the night of the incident, under the ongoing duty of maintenance and repair that arguably existed by reason of article XII-B. That failure itself compels denial of the motion.

Lastly, I cannot find as a matter of law that operator intoxication was the sole proximate cause of the accident. I understand that there is lay opinion evidence that both Ms. Parmerter and Mr. Mattia were drunk at a point shortly before the accident. I also understand that the forensic toxicology report for each decedent reflects the presence of alcohol, although at levels that vary. Conversely, defendant has failed to offer any evidence that establishes the significance of either decedent’s measures of alcohol in assessing impairment. Moreover, even assuming operator intoxication, that manner of vehicle operation cannot simply be deemed the sole proximate cause of the accident. “It is axiomatic that proximate cause ordinarily is a question to be determined by the finder of fact” (Decker v Forenta LP, 290 AD2d 925 , 926 [2002]; Derdiarian v Felix Contr. Corp., 51 NY2d 308 , 314-316 [1980]). Clearly, an analysis of whether liability can attach for injuries resulting from defects in the design or maintenance of roadside guide rails or abutments can occur separately from the circumstances of the initial accident that preceded the guide rail failure (see Gutelle v City of New York, 55 NY2d 794 [1981]; Lattanzi v State of New York,