| Fan Guan v State of New York |
| 2008 NY Slip Op 08089 [55 AD3d 782] |
| October 21, 2008 |
| Appellate Division, Second Department |
| Fan Guan, Appellant, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Denise A. Hartman and Michael S.Buskus of counsel), for respondent.
In a claim to recover damages for wrongful death, the claimant appeals from a judgment of theCourt of Claims (Marin, J.), dated June 26, 2007, which, upon a decision of the same court dated May24, 2007, made after a nonjury trial on the issue of liability, dismissed the claim.
Ordered that the judgment is affirmed, with costs.
On November 10, 2000 the claimant's decedent was killed when his car veered off the NorthernState Parkway (hereinafter the parkway) in Suffolk County and struck a tree that was roughly 24 feetfrom the edge of the roadway and measured almost 20 inches in diameter. Although there were nowitnesses to the accident, responding police officers and accident reconstruction experts opined at trialthat the decedent's car hydroplaned and then slid sideways into the tree after traveling through a puddlethat was 161 feet long, 15 feet wide, and 8 inches deep, stretching the entire width of the eastbound leftlane of traffic. The claimant argued, inter alia, that the State of New York was required to expand the"clear zone" at the accident site to 30 feet in order to comply with modern highway design standardsestablished after the parkway's initial construction. A clear zone is an area without fixed objects that isadjacent to a highway and intended to provide safe passage and a recovery area for vehicles that veeroff the roadway. After a nonjury trial, the Court of Claims dismissed the claim, determining, amongother things, that the State was entitled to qualified immunity and was not required to comply with themodern highway design standards [*2]established after the constructionof the parkway. We affirm.
"[A] municipality owes to the public the absolute duty of keeping its streets in a reasonably safecondition" (Friedman v State of New York, 67 NY2d 271, 283 [1986] [internal quotationmarks omitted]). However, "in the field of traffic design engineering, the State is accorded a qualifiedimmunity from liability arising out of a highway planning decision" (id.). Under the qualifiedimmunity doctrine, liability may arise where there is proof that the State's traffic design plan "evolvedwithout adequate study or lacked reasonable basis" (Weiss v Fote, 7 NY2d 579, 589 [1960]).
At the trial, testimony and documentary evidence indicated that the State conducted an extensiveassessment of the parkway system including, inter alia, lane widths, grades, ditch selections, curbs,shoulders, medians, and recovery areas. After the assessment, the State adopted a policy whichprovided for the establishment of 30-foot clear zones for new or major reconstruction of existingparkways and 20-foot clear zones for rehabilitation and minor upgrading. In adopting the policy, theState recognized that expanding the clear zone to 30 feet on existing parkways could result in thewholesale removal of bordering trees, the preservation of which was important to the design of theoriginal parkways. Upon reviewing, among other things, accident records and the input of interestedcitizens, the State weighed the risks in maintaining a 20-foot clear zone with the benefits of roadsidetrees in adopting the policy. Under these circumstances, it cannot be said that the State's policy ofmaintaining a 20-foot clear zone on the parkways "evolved without adequate study or lackedreasonable basis" (id.; see Kissinger v State of New York, 126 AD2d 139 [1987]).
Testimony and documentary evidence adduced at trial also indicated that in 1985 the Statereplaced the parkway's wooden median with a concrete barrier and in 1994 repaved the road andimproved the drainage system. The claimant argued that this work on the parkway constituted suchsignificant repair and reconstruction that the State should have also expanded the clear zone adjacent tothe roadway to 30 feet (in order to comply with modern highway design standards) by removing allfixed objects within that area, including the tree which the decedent's car struck. The claimant arguedthat if such a clear zone was not practical, the State should have erected a guide rail.
"[C]ompliance with design standards adopted after the construction of a highway is not requiredunless the municipality undertakes significant repair or reconstruction that would provide an opportunityfor compliance with the new standards" (Guzov v State of New York, 48 AD3d 751, 752 [2008], quoting Cave v Town of Galen, 23 AD3d1108, 1108-1109 [2005]; see Preston vState of New York, 6 AD3d 835 [2004]). Additionally, "[a]s a general rule, the State is notrequired to undertake expensive reconstruction of highways simply because the design standards forhighways have been upgraded since the time of the original construction" (Vizzini v State of NewYork, 278 AD2d 562, 563 [2000]). The replacement of the median, the repaving of the roadsurface, and the improvements made to the drainage system did not materially alter the roadway itselfand did not constitute significant repair or reconstruction such that compliance with modern highwaydesign standards was required (see Vizzini v State of New York, 278 AD2d 562 [2000];Benjamin v State of New York, 203 AD2d 629, 630 [1994]; cf. Guzov v State of NewYork, 48 AD3d at 752).
Additionally, the State was not on constructive notice of a dangerous condition as the evidenceproduced at trial indicated that the daily traffic volume at the site of the accident was roughly 65,000 to70,000 vehicles per day, and there were only 11 collisions with trees within the vicinity of the accidentsite from the years 1991 to 2000 (seeRacalbuto v Redmond, 46 AD3d 1051, [*3]1052 [2007];Trautman v State of New York, 179 AD2d 635, 636 [1992]; Rittenhouse v State of NewYork, 134 AD2d 774, 776 [1987]; Van De Bogart v State of New York, 133 AD2d974 [1987]).
The claimant's remaining contentions either are without merit or have been rendered academic.Rivera, J.P., Spolzino, Florio and Leventhal, JJ., concur. [See 16 Misc 3d 1103(A), 2007 NYSlip Op 51241(U).]