ETHER v. STATE (1997)

Appeals from two judgments of the Court of Claims (Benza, J.), entered June 21, 1995, upon a decision of the court in favor of the State.

These claims arise out of a June 27, 1986 automobile accident that took place near the intersection of U.S. Route 9 and Philo Road in the Town of Stockport, Columbia County.   Between 9:00 P.M. and 9:30 P.M. on a dark rainy evening, a southbound automobile driven by claimant Stephen D. Ether failed to negotiate a right-hand curve on Route 9 and instead drove straight, off Route 9 and down Philo Road, which intersected at a shallow angle from the left at the beginning of the curve.   A steep drop-off from the super-elevated east side of Route 9 caused the vehicle to become airborne, ultimately striking a tree and coming to rest on an embankment on the side of Philo Road. Ether and the front-seat passenger, claimant Dondi Moore, sustained personal injuries in the accident.   Claimants' theory of liability is that the State was negligent in allowing the double yellow center lines on Route 9 to become extremely faded, causing Ether to mistakenly perceive the highway as continuing straight instead of curving to the right.   At the conclusion of a joint trial on the issue of liability only, the Court of Claims found that the State's negligence was not a proximate cause of the accident and separate judgments were entered dismissing the claims.   Claimants now appeal.

 We affirm.   Initially, we are not persuaded by claimants' argument that the Court of Claims erred in requiring claimants to prove that the State's negligence was the sole cause of the accident, rather than merely requiring them to show that the State's negligence contributed to the accident in a substantial way (see, Gutelle v. City of New York, 55 N.Y.2d 794, 796, 447 N.Y.S.2d 422, 432 N.E.2d 124) or was a substantial causative factor in the sequence of events leading to the accident (see, Nallan v. Helmsley-Spear Inc., 50 N.Y.2d 507, 520, 429 N.Y.S.2d 606, 407 N.E.2d 451).   To the contrary, the Court of Claims correctly characterized the issue as whether “the accident was a ‘natural and probable consequence of the State's negligence’ ” (quoting Schichler v. State of New York, 110 A.D.2d 959, 961, 487 N.Y.S.2d 885, affd 66 N.Y.2d 954, 498 N.Y.S.2d 798, 489 N.E.2d 767) and its analysis quite properly focused on claimants' inability to come forward with evidence tending to establish any particular cause for the accident.

Significantly, Ether testified that he had no recollection of the accident, and the two eyewitnesses to the accident established only that Ether drove off Route 9 at a speed of approximately 40 miles per hour and never applied his brakes, turned the steering wheel or engaged in any other corrective or evasive maneuvers.   Although this evidence lends some support to the theory that the juxtaposition of the roadways and the absence of adequate road markings caused Ether to believe that the correct path lay straight ahead, it appears just as likely that the error in judgment was caused by a combination of poor visibility, excessive speed for the weather conditions and Ether's inexperience, fatigue and inattentiveness.   We note in that connection that at the time of the accident Ether was only 17 years old, that he was traveling home from playing in an American Legion baseball game, following which he had nothing to eat or drink, and that curve warning and speed advisory signs gave notice of the upcoming curve to the right.   As correctly observed by the Court of Claims, “[t]o argue * * * that the asserted negligence of the State was a substantial factor in bringing about this event * * * is only to invite impermissible speculation” (Murray v. State of New York, 38 N.Y.2d 782, 784, 381 N.Y.S.2d 866, 345 N.E.2d 338;  see, Pontello v. County of Onondaga, 94 A.D.2d 427, 430, 464 N.Y.S.2d 891, lv. dismissed 60 N.Y.2d 560, 471 N.Y.S.2d 1028, 459 N.E.2d 196).

 Claimants' remaining contentions require little discussion.   We conclude that there was no basis for permitting the relaxed burden of persuasion enunciated in Noseworthy v. City of New York (298 N.Y. 76, 80 N.E.2d 744), first, because claimants and the State were “similarly situated insofar as accessibility to the facts of the [accident] is concerned” (Wright v. New York City Hous. Auth., 208 A.D.2d 327, 332, 624 N.Y.S.2d 144) and, second, because there was no medical evidence to support Ether's claim of amnesia (see, Menekou v. Crean, 222 A.D.2d 418, 419, 634 N.Y.S.2d 532).   Finally, the Court of Claims did not err in receiving evidence concerning the volume of traffic that had negotiated the subject curve without accident (see, Niles v. State of New York, 201 A.D.2d 774, 776, 607 N.Y.S.2d 480).

ORDERED that the judgments are affirmed, without costs.

MERCURE, Justice.

CARDONA, P.J., and CASEY, SPAIN and CARPINELLO, JJ., concur.