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Road Injury Prevention & Litigation Journal
Copyright © 1997 by TranSafety, Inc.
February 1, 1997
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New York Court Finds That Defective Shoulder Caused Death in Automobile Accident

The Appellate Division of the New York Supreme Court recently reversed a lower court judgement and found that the state was negligent in failing to maintain the shoulder of a highway which was the proximate cause of the death of Kenneth Hanna.

The Court of Claims had heard the suit brought against the state by the widow of the deceased and entered judgement in favor of the state. Patricia Hanna then appealed the Court of Claims decision and the Supreme Court reversed that decision and found the state negligent.

Kenneth Hanna was killed on October 28, 1983 when he was in an accident while a passenger in a 1983 Nissan Sentra station wagon driven by Peter Borowski, who had owned the car for one and a half months.

The accident occurred at about 10:30 pm as Borowski proceeded north on State Route 17 near the village of Monticello in Sullivan County. Route 17 is a four-lane highway divided by a grass median at the accident site. At the time of the accident, the highway was dry and clear.

Hanna was in the front passenger seat and Borowski's son was in the back seat. At the time of the accident, the car was contending with extremely high winds and heavy traffic. In the course of maneuvering to avoid other traffic, the Nissan left the paved portion of the highway, flipped over several times and eventually landed in an upright position in the grassy median.

At some point during this flipping, Hanna was thrown from the vehicle. He was pronounced dead at the scene.

Patricia Hanna brought suit against the state claiming that her husband's death was proximately caused by the State's negligence in failing to maintain a portion of the shoulder of the highway. Specifically, Hanna argued that there was an excessive drop-off between the left travel lane and the surface of the shoulder. She alleged that the drop-off was nine inches deep from the paved lane to the unpaved shoulder.

At the trial, Hanna contended that after being hit by the severe winds, Borowski swerved to compensate for the winds and, in the process, the two left-side wheels left the pavement and dropped onto the shoulder. The attempt to return to the paved lane from the nine inch drop-off caused the car to flip over into the grassy median. This was the basis for Hanna's claim against the state.

For its part, the state argued that the Nissan began to turn over on the pavement before it reached the shoulder. Therefore, the alleged nine inch drop-off was not the proximate cause of the accident and death. This is the argument that the Court of Claims accepted when it dismissed the suit.

Borowski testified at trial that, as he attempted to bring the car back onto the pavement, he felt as if he were driving in a ditch and that the vehicle did not begin to flip until it had run off the paved lane. Two police officers who investigated the accident essentially corroborated Borowski's testimony. One of them, Deputy Sheriff Paul Pratti, observed and took measurements shortly after the accident. According to Pratti, the car left the paved lane at about a 45 degree angle and traveled 246 feet after it left the pavement, with two areas of ground disturbance visible in that space. Hanna's body was found 31 feet behind the spot where the Nissan came to rest. The second officer testified that there were scuff marks on the insides of the two left tires.

The state contradicted this testimony and offered the testimony of three eye-witnesses not involved in the accident. Basically, these witnesses testified that they saw the vehicle swerve and roll, but that they did not agree as to when the car began to roll. However, the testimony of the three persuaded the Court of Claims that the nine inch drop-off was not the proximate cause of the accident.

The appeals court, however, found that the physical facts weighed heavily in Hanna's favor. The court said that the absence of any scrapes and debris on the surface of the highway, along with the absence of any striations or scrapes on the surface of Borowski's car suggested that it did not overturn on the highway surface. In addition, the scuff marks on the insides of the left-side tires and the outer edge of the pavement at the drop-off supported Borowski's testimony that he tried to bring the car back to the paved surface out of the shoulder drop-off.

These facts, coupled with the experience of the investigating officers, led the high court to reverse the lower court and find in Hanna's favor and remand the suit to the Court of Claims for trial on the issue of damages.

[Hanna v. State 544 N.Y.S.2d 85 (A.D. 3 Dept. 1989)]

Copyright © 1997 by TranSafety, Inc.


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