                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 5, 2015                     519071
________________________________

TABETHA A. LINDQUIST et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

COUNTY OF SCHOHARIE,
                    Respondent.
________________________________


Calendar Date:   January 14, 2015

Before:   Peters, P.J., McCarthy, Garry and Rose, JJ.

                             __________


      Tabner, Ryan & Keniry, LLP, Albany (Brian M. Quinn of
counsel), for appellants.

      Murphy, Burns, Barber & Murphy, LLP, Albany (James J. Burns
of counsel), for respondent.

                             __________


Garry, J.

      Appeal from an order of the Supreme Court (Devine, J.),
entered February 25, 2014 in Schoharie County, which granted
defendant's motion for summary judgment dismissing the complaint.

      Plaintiff Tabetha A. Lindquist (hereinafter plaintiff) was
seriously injured while driving on North Harpersfield Road in the
Town of Jefferson, Schoharie County, when her vehicle left the
road on a curve, traveled down an embankment, and struck a tree.
Plaintiff and her husband, derivatively, filed a timely notice of
claim alleging that the accident was caused by defendant's
negligence in maintaining, repairing and designing the road.
Thereafter, they commenced this negligence action. Following
discovery and the filing of a note of issue, defendant moved for
summary judgment dismissing the complaint. Supreme Court granted
                              -2-                519071

the motion, finding that plaintiffs had abandoned their claim for
negligent maintenance and repair and had failed to plead a cause
of action for negligent highway design in the complaint or to
amend the complaint to include such a claim. Plaintiffs appeal,
contending that Supreme Court improperly dismissed the negligent
highway design claim, and asserting that it was properly pleaded
in their complaint.1

      The complaint contains a single negligence cause of action
that, in addition to allegations pertaining to negligent
maintenance and repair, claims that defendant "caused, created
and maintained" a defective and unsafe condition on the road.
Plaintiffs assert that this language is sufficient to provide
adequate notice of their negligent highway design claim, and that
their notice of claim and bill of particulars provide additional
notice by specifying that defendant, among other things, failed
to provide adequate signs and warning devices, a guide rail or
other barrier, and a sufficiently wide shoulder. Regardless of
the merit of these claims, they are premised on standards
applicable to motions to dismiss pursuant to CPLR 3211 (a) (7).
Here, a different analysis is required, as defendant moved for
summary judgment pursuant to CPLR 3212 on the ground that
plaintiffs' complaint failed to state a cause of action for
negligent highway design. This application by its nature is not
addressed solely to the pleadings, and to treat it as such is in
error. Upon a motion premised upon this provision, "failure to
state a . . . cause of action in pleadings would not be
sufficient to permit unconditional summary judgment in favor of
[a] defendant, as a matter of law, if [the] plaintiff's
submissions provided evidentiary facts making out a cause of
action" (Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 280
[1978]; see Reiser, Inc. v Roberts Real Estate, 292 AD2d 726, 727
[2002]; Mega Group v Halton, 290 AD2d 673, 675 [2002]; Canonico v
Hayes, 127 AD2d 911, 913 [1987]).


    1
        Plaintiffs have abandoned any issues related to the
dismissal of their negligent maintenance claim, as their brief
includes no arguments on such issues (see Antich v McPartland,
293 AD2d 953, 953 n 1 [2002]).
                               -3-                519071

      In this unusual procedural setting, defendant was not
required to meet the customary burden of establishing a prima
facie right to judgment as a matter of law on the substantive
merits of the negligent highway design claim. Defendant met its
burden on its procedural claim, which was addressed to the
pleadings and not to the merits, by identifying a defect in
plaintiffs' complaint, and in this manner triggered plaintiffs'
obligation to reveal an evidentiary basis in its submissions that
was sufficient to "present[] facts curing the defect or supplying
the deficiency" (Weinstein-Korn-Miller, NY Civ Prac ¶ 3212.10 [2d
ed 2014]). In this case, plaintiffs were thus required to
establish a factual basis upon which a jury could find in their
favor on a claim for negligent highway design.

      "Municipalities owe a nondelegable duty to the public to
construct and maintain their roads in a reasonably safe
condition" (Temple v Chenango County, 228 AD2d 938, 938 [1996]
[citations omitted]; accord Madden v Town of Greene, 64 AD3d
1117, 1119 [2009]). While this duty includes providing adequate
warning signs and guide rails or other barriers in appropriate
circumstances, a municipality will not be held liable for a
breach of duty unless the breach proximately caused the accident
(see Ferguson v Sheahan, 71 AD3d 1207, 1208 [2010]; Sherman v
County of Cortland, 18 AD3d 908, 910 [2005], lv denied 5 NY3d 713
[2005]). Accordingly, to establish a cause of action for
negligent highway design, plaintiffs were required to provide
evidentiary facts that could support a finding that defendant
breached its duty to maintain the road in a reasonably safe
condition, and that this breach was a proximate cause of the
accident.

      Plaintiff, who suffered a traumatic brain injury, has no
memory of the accident and does not know why her car left the
road, other than her entirely speculative testimony that she
might have been "reaching around to check on my kids, you know,
when it was happening."2 Plaintiff's two children were the only


     2
        Plaintiff was driving with a learner's permit at the time
of the accident, although there was no supervising licensed
driver in the car (see Vehicle and Traffic Law § 501 [5] [a]
                              -4-                519071

passengers in the vehicle, and they likewise do not remember the
accident. There were no other witnesses. Plaintiffs therefore
rely primarily upon the affidavit of their expert, Michael D.
Reilly II, an engineering consultant specializing in highway and
traffic matters and accident reconstruction. Reilly, who based
his opinions on a site visit and document review, stated that
plaintiff was traveling around a curve to the left when, for
unknown reasons, her car departed from the road on the right
side, crossed an open shoulder or clear zone that was
approximately 18.5 feet wide and then traveled over the edge of
an embankment beyond the clear zone, coming to rest against a
tree. Reilly opined that the posted speed limit was too high for
the road, that signs warning motorists of the curve and advisory
signs indicating a lower speed should have been posted, that a
guide rail should have been installed to prevent vehicles that
left the roadway from traveling across the clear zone and over
the edge of the embankment, and that the clear zone itself was
too narrow. Finally, he opined that these alleged defects in the
design of the highway were a substantial factor in causing the
accident and/or aggravating the severity of plaintiff's injuries.

      As to the absence of a guide rail, Reilly opined that
"recognized standards" and "good and common engineering and road
design [principles]" required guide rails at the accident site to
redirect vehicles onto the roadway and shield them from the
embankment and from trees. He further opined that given the
steepness of the embankment, plaintiff's injuries would have been
less severe had such guide rails been in place. He did not
specify the particular standards on which he relied, nor did he
indicate when they became effective (see Donato v County of
Schenectady, 156 AD2d 859, 862 [1989]). Moreover, Reilly did not
address the fact that the embankment and trees were not located
directly beside the roadway, but were instead separated from the
edge of the road by an open, level clear zone measuring almost 20
feet wide, beyond stating in conclusory fashion that the clear
zone was "too narrow" (compare Ferguson v Sheahan, 71 AD3d at
1209-1210; Popolizio v County of Schenectady, 62 AD3d 1181, 1182


[ii]). She testified that she had never held a driver's license
or tried to obtain one.
                              -5-                519071

[2009]; Temple v Chenango County, 228 AD2d at 939-940). Notably,
a photograph of the scene taken shortly after the accident
appears to show plaintiff's tire tracks leading directly from the
road across the clear zone and over the embankment, with no
indication of any attempt to turn, brake or otherwise utilize the
clear zone. Reilly neither contended that plaintiff tried to
utilize the clear zone nor supported his opinion that the clear
zone was inadequate by referencing any applicable standards or
regulations. Further, he did not provide facts or data
pertaining to the nature of the curve or the dynamics of
plaintiff's accident indicating that the clear zone provided such
inadequate protection that a guide rail was required. He did not
opine that any standards requiring a wider clear zone were in
effect when the road was constructed or that any major
reconstruction project had taken place since its construction
that would require compliance with new standards (see Hay v State
of New York, 60 AD3d 1190, 1191-1192 [2009]; see also Madden v
Town of Greene, 64 AD3d at 1119-1120). Finally, although
Reilly's affidavit stated, upon information and belief, that
other accidents had occurred on the curve, plaintiffs failed to
support this claim with any evidentiary showing of previous
accidents that would have given notice of a dangerous condition.
Defendant asserted that no accidents had occurred on the curve in
the previous five years (see Hay v State of New York, 60 AD3d at
1193; Preston v State of New York, 6 AD3d 835, 836 [2004], lv
denied 3 NY3d 601 [2004]). Accordingly, plaintiffs neither made
an evidentiary showing that defendant breached a duty to supply a
guide rail or wider clear zone, nor showed that such failures
proximately caused the accident or plaintiff's injuries.

      With regard to the speed limit, Reilly stated that he saw
no speed limit signs near the curve and therefore "presumed" that
the speed limit on North Harpersfield Road was 55 miles per hour
(hereinafter mph). Based upon standards of the American
Association of State Highway Transportation Officials, the Manual
on Uniform Traffic Control Devices, and unspecified rules and
regulations, he opined that the design speed for the road should
have been 40 mph and that an advisory sign should have been
posted indicating a lower safe speed of 30 mph for the curve.
Reilly's affidavit – dated more than three years after the
accident – did not state the date of his site visit or whether
                              -6-                519071

the conditions at the time of his visit were the same as at the
time of the accident (see Carpenter v J. Giardino, LLC, 81 AD3d
1231, 1233 [2011], lv denied 17 NY3d 710 [2011]).3 Further, as
defendant argues, Vehicle and Traffic Law § 1622 provides that,
upon the request of a county's superintendent of highways, the
Department of Transportation may establish the maximum speed
limit on a county road. In light of this provision, and in the
absence of evidence establishing the speed limit on this road and
how it was set, there was no showing of a breach of duty by
defendant.

      As for proximate cause, Reilly stated that the accident
"was of a type where speed is often a causal factor," but did not
opine that excessive speed caused plaintiff's vehicle to leave
the road, and did not offer any opinion as to the speed at which
she was attempting to navigate the curve. There was no other
evidence, such as a police report or accident reconstruction
report, suggesting that excessive speed was a factor. Plaintiff
testified that she was very familiar with the road at the site of
the accident, had driven on it daily before the accident
occurred, and had never before had any difficulty staying on the
road. Under these circumstances, nothing but speculation
supports the theory that the accident could have been prevented
by a lower posted speed limit on the roadway, an advisory sign
indicating a lower safe speed on the curve or warning signs
advising motorists of the curve (see Hubbard v County of Madison,
93 AD3d 939, 944 [2012], lv denied 19 NY3d 805 [2012]; Donato v
County of Schenectady, 156 AD2d at 861). Thus, even if
plaintiffs had shown that defendant had breached a duty with
regard to the speed limit or warning signs, there was no showing
that such a breach was a proximate cause of the accident.


    3
        Witness testimony and photographs in the record reveal
that a guide rail was installed on the curve at some point after
plaintiff's accident; photographs further reveal that the curve
is marked with chevron warning signs. Reilly did not state
whether the guide rail and chevron signs were in place at the
time of his site visit, whether the guide rail would have served
to prevent or mitigate plaintiff's accident, or whether other
changes were made at the site following the accident.
                              -7-                  519071

      Plaintiff's amnesia as to the cause of the accident does
not excuse her from submitting prima facie proof of proximate
cause. In a proper case, an amnesiac plaintiff may be held to a
lesser burden of proof as to proximate cause than a party who is
able to provide an account of events (see Cresci v City of New
York, 27 AD2d 277, 279 [1967], affd 21 NY2d 932 [1968]; see also
Noseworthy v City of New York, 298 NY 76, 78 [1948]). However,
that doctrine is inapplicable where, as here, the defendant has
no greater access to the underlying facts than the amnesiac
plaintiff (see Lynn v Lynn, 216 AD2d 194, 195 [1995]). Moreover,
even when the doctrine applies, the burden remains on the
amnesiac plaintiff to present prima facie proof of the
defendant's negligence to permit a jury to base its verdict on
evidence rather than speculation (see Smith v Stark, 67 NY2d 693,
694-695 [1986]; Schechter v Klanfer, 28 NY2d 228, 233 [1971]).
This burden may not be satisfied by "inferences as to causation
which are based solely upon speculation" (Lynn v Lynn, 216 AD2d
at 196; see Donato v County of Schenectady, 156 AD2d at 861-862).
As plaintiffs neither made an evidentiary showing that defendant
breached its duty to construct and maintain the road in a safe
condition nor that such a breach proximately caused the accident,
summary judgment was properly granted to defendant on the ground
that plaintiffs failed to establish a cause of action for
negligent highway design.

     Peters, P.J., McCarthy and Rose, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
