DRAKE v. COUNTY OF HERKIMER (2005)

 This appeal arises in two consolidated actions commenced by plaintiffs to recover for personal injuries sustained in a single-car accident occurring at an intersection on a highway owned by defendant.   It is well established that municipalities have a duty to maintain their roads in a reasonably safe condition for motorists and must guard against contemplated and foreseeable risks (see Friedman v. State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893;  Tomassi v. Town of Union, 46 N.Y.2d 91, 97, 412 N.Y.S.2d 842, 385 N.E.2d 581;  Lopes v. Rostad, 45 N.Y.2d 617, 623, 412 N.Y.S.2d 127, 384 N.E.2d 673).   Nevertheless, the duty is “measured by the courts with consideration given to the proper limits on intrusion into the municipality's planning and decision-making functions” (Friedman, 67 N.Y.2d at 283, 502 N.Y.S.2d 669, 493 N.E.2d 893).   Thus, in the field of traffic design engineering, the municipality is accorded a qualified immunity from liability arising out of a highway planning decision (see Friedman, 67 N.Y.2d at 283, 502 N.Y.S.2d 669, 493 N.E.2d 893;  Alexander v. Eldred, 63 N.Y.2d 460, 465-466, 483 N.Y.S.2d 168, 472 N.E.2d 996;  Weiss v. Fote, 7 N.Y.2d 579, 585-586, 200 N.Y.S.2d 409, 167 N.E.2d 63, rearg. denied 8 N.Y.2d 934, 204 N.Y.S.2d 1025, 168 N.E.2d 857).   Pursuant to that doctrine of qualified immunity, “liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked a reasonable basis” (Weiss, 7 N.Y.2d at 589, 200 N.Y.S.2d 409, 167 N.E.2d 63;  see Friedman, 67 N.Y.2d at 284, 502 N.Y.S.2d 669, 493 N.E.2d 893;  Alexander, 63 N.Y.2d at 466, 483 N.Y.S.2d 168, 472 N.E.2d 996).

 Applying the foregoing standards, we conclude that Supreme Court properly denied defendant's motion for summary judgment dismissing the complaints.   There is a triable issue of fact concerning whether defendant's choice of signage at the intersection and the absence of traffic signals was the product of adequate study and a reasonable planning decision on the part of defendant or was instead negligent (see Forsythe-Kane v. Town of Yorktown, 249 A.D.2d 505, 506, 672 N.Y.S.2d 355;  Appelbaum v. County of Sullivan, 222 A.D.2d 987, 989, 635 N.Y.S.2d 349;  see also Scheemaker v. State of New York, 70 N.Y.2d 985, 986, 526 N.Y.S.2d 420, 521 N.E.2d 427;  cf. Abrahams v. Town of Brookhaven, 220 A.D.2d 472, 631 N.Y.S.2d 934).   Further, there is a triable issue of fact concerning whether such alleged negligence was a proximate cause of the accident and injuries (see Ernest v. Red Creek Cent. School Dist., 93 N.Y.2d 664, 674-675, 695 N.Y.S.2d 531, 717 N.E.2d 690, rearg. denied 93 N.Y.2d 1042, 697 N.Y.S.2d 571, 719 N.E.2d 932;  Purves v. County of Erie, 12 A.D.3d 1112, 784 N.Y.S.2d 415).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: