Lattanzi v. State , 74 A.D.2d 378 ( 1980 )

OPINION OF THE COURT

Sweeney, J. P.

This claim arose out of a single-car accident which occurred on January 3, 1974 on the Southern State Parkway (Parkway) on Long Island. Claimant’s vehicle skidded on the icy highway, veered off the shoulder, struck a wooden guardrail which splintered and penetrated the vehicle causing severe personal injuries to claimant. After a trial the court found defendants negligent and claimant free from contributory negligence. The court awarded claimant $450,000, and, for loss of services, his wife was awarded $25,000. This appeal ensued.

Basically, claimant contends that the wooden barrier which splintered and caused his injuries was not properly designed or adequately tested prior to its installation.

Initially, we reject defendants’ contention that the Jones Beach State Parkway Authority (Authority) had exclusive jurisdiction over that portion of the Parkway where the accident happened. While we did not conclusively decide that issue on an earlier appeal (Littanzi v State of New York, 54 AD2d 1043), as contended by claimant, we are of the opinion that defendants are joint tort-feasors with the Authority. Former section 672-a of the former Conservation Law granted full jurisdiction over the Parkway to the Long Island State Park and Recreation Commission (LISP). Merely a portion of this jurisdiction was divested when a modicum of LISP’s power was granted to the Authority (Public Authorities Law, § 153-b, subd 2).

Defendants had the obligation to provide adequate and proper barriers (Zalewski v State of New York, 53 AD2d 781). The record clearly demonstrates that defendants had real concern as to the efficacy of wooden guardrails. A memorandum written two years prior to the accident by the Director of Engineering Research and Development for the New York State Department of Transportation stated, "[w]e would be fearful of wood sections penetrating the passenger compartment of an impacting car”. This concern is precisely what happened in the instant case. In our view, there is ample proof in the record to support the conclusion of the Court of Claims that the State did not properly design and test the guardrail system and that the inferior capabilities of the guardrail were the proximate cause of the injuries resulting to claimant. Defendants’ argument that the circumstances surrounding claimant’s collision with the guardrail were not foreseeable is without merit.

We also reject defendants’ contention that claimant was guilty of contributory negligence. This issue presented questions of fact and credibility which the trial court resolved in claimant’s favor. The uncontested testimony is that claimant was driving between 30 and 35 miles per hour on this six-lane highway when he applied his brakes, skidded on the icy highway and veered off and struck the guardrail. The slight damage to his vehicle except for that caused by the penetrating wooden guardrail, as demonstrated by the photographic exhibits, supports claimant’s contention that he was driving at a reasonable rate of speed. We conclude that the court’s determination on the issue of claimant’s contributory negligence is not against the weight of the credible evidence or contrary to the law and, therefore, it should not be disturbed (Rolando v Department of Transp. of State of N. Y., 58 AD2d 694; Schoonmaker v State of New York, 32 AD2d 1005). Considering the record in its entirety, there should be an affirmance.

The judgment should be affirmed, with costs.