Upon a review of the log photos, taken over a 16-year period, one can readily see that the subject guide rail has sustained physical damage. As explained, it is not unusual for the wing blade of a state owned snowplow to come into contact with the box beam rail or with one or more of the support posts. Furthermore, snow and salt plowed against the guide rail system contribute to corrosion of the metal guide rail system. The photo taken in August 1979 clearly depicts that a post and its angle bracket have separated from the box beam rail and are angled downward. The witness testified that very near this damaged post was the weld which he believed failed as a result of improper fabrication. In photos taken in May 1984, according to him, the height of the box beam rail has changed. From the weld towards the eastern terminus it appears to be lifted upward somewhat. Further, in these photos, the post that appeared to be angled downward in the 1979 photo is down on the ground, and the post immediately to the west of this downed post is separated from the box beam rail and is angled downward. He also noted that there appears to be rust on the face of the box beam near the weld. DWI was involved.
Credibility is a critical issue in any claim before the court. Weighing evidence and assessing veracity of conflicting testimony is a task for which there is no precise or flawless test. There are no juries in the Court of Claims and therefore the court’s responsibilities include deciding witness credibility and resolving factual disputes. This task is placed in sharper focus when the court is presented with expert testimony; testimony which is intended to aid the factfinder by helping to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror. The court, however, is not required to accept an expert’s opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination. The court may reject an expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion. Put another way, the court when faced with conflicting expert testimony is entitled to accept the theory that, in its view, best explains the point in issue and is supported by the evidence.
Considering all of the testimony, the photographic evidence as well as the demonstrative evidence offered by the experts, this court accepts that portion of the claimant’s expert’s opinion concerning the state’s construction of the subject guide rail contrary to the specific design specifications, as well as its failure to maintain the subject guide rail pursuant to the Department of Transportation’s own Highway Maintenance Guidelines. The court finds that the point of impact between the claimant decedent’s vehicle and the box beam guide rail was at the location of the much referred to weld, and that said weld was faultily applied thereby allowing invasive and corrosive rust to weaken the rail system. Furthermore, as is evidenced by the several photo log photographs, the subject box beam guide rail was left in disrepair for many years leading up to this accident as evidenced by the downed and disconnected support posts, missing support posts and the elevation of the box beam rail above its intended height. Although there was no evidence of any prior reported motor vehicle accident having occurred at the subject location, clearly there was some source of trauma to this guide rail system that went unreported.
It is well established that the state is under a nondelegatory duty to maintain its roadways in a reasonably safe condition for motorists who obey the rules of the road. The state is required to build a reasonably safe roadway consistent with the standards applicable at the time of design and construction. Yet, there is generally no obligation by the state to upgrade the structure which was originally built in compliance with applicable law solely because of changes in design specifications and standards. Where appropriate, it must erect and maintain guide rails. The state is not an insurer of the safety of motorists, and negligence cannot be inferred from the mere happening of an accident.
In claims based upon negligent design, the state is entitled to qualified immunity for claims arising out of its highway planning decisions, unless its study was plainly inadequate or lacked a reasonable basis. There are “[s]trong policy considerations” behind this doctrine, and it should therefore not be “lightly discounted”
To prevail, a claimant must prove that the injuries he or she sustained were proximately caused by the state’s negligence. Generally, liability will not attach unless the state had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition. The court finds that the defendant had both actual and constructive notice of the dangerous and defective condition that existed on State Route 44/55 where this accident occurred. The court further finds that defendant’s negligent construction and maintenance of the subject guide rail was a proximate cause of the claimant’s decedent’s accident.
Having found that both the defendant State of New York and the claimant’s decedent were negligent and that their negligence was a proximate cause of the happening of this accident, it is for the court further to decide what percentage of the whole each party was responsible. While this court recognizes that operating a motor vehicle while in an intoxicated state is indisputably a serious violation of the law, this would preclude recovery by the claimant only if there were no other proximate cause to the happening of the accident. “The fact that decedent’s ability to drive was impaired does not exonerate the State from liability on the ground that its negligence was not one of the proximate causes of the accident”. As in a case, the claimant’s decedent’s criminal act of driving while intoxicated was not the only cause of his accident. Undoubtedly, his reflexes were slowed, his judgment impaired, which combined with the state’s negligent construction and maintenance of its guide rail system, caused his death.
Accordingly, the court apportions liability 20% attributable to defendant and 80% attributable to claimant and will set the matter down for a trial on the issue of damages as soon as practicable.