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Will it Take a Class Action Lawsuit to Wake up NYSDOT?

Author: Dan Cadzow

Both Friedman versus New York State1 and Turturro versus City of New York2 held state and city municipalities liable for damages that resulted from their failures to calm traffic and improve safety on roadways known to be hazardous. The 2005 Expanded Project Proposal (EPP)1, which was authored by the City of Buffalo, New York State Department of Transportation(NYSDOT), and the Federal Highway Administration (FHA), documents the dangerous history of the Scajaquada Expressway.

At that time 25% of intersections and 50% of mainline on the Scajaquada had above average collision rates. The worst section centered on the Parkside Avenue intersection, accounting for about 30% of the total collisions. The EPP called for numerous short-term traffic calming measures including reducing the speed limit to 30 MPH. While the City was the primary author, it was the secondary author, NYSDOT, that built the expressway and assumed responsible for maintaining and updating the roadway, despite having never legally acquiring the land the expressway was built upon.

NYSDOT’s subcontractor, Bergmann Associates’, April 19, 2014 Accident Graphic2 also illustrated the numerous accidents with injuries and deaths along the length of the expressway. This includes three accidents involving vehicles crashing into Delaware Park where an ensuing fourth collision on May 30, 2015 took the life of Maksym Sugorovskiy and seriously injured his sister. It’s hard to ignore the fact that they intentionally obfuscated the symbols on the map key that distinguish crashes with injuries from those with deaths –including the three crashes that occurred where Maksym was later killed.

Despite knowledge of these dangers, and community support for traffic calming laid out in the 2005 EPP, NYSDOT stalwartly refused to implement any of them. Funding did not play a role in NYSDOT’s failure: the total projected cost for the traffic calming measures proposed in the 2005 EPP would have cost roughly $5 million. By the time Maksym Sugorovskiy was struck and killed, however, NYSDOT had spent roughly $4.5 million in studies beyond those of the EPP.

After the death of the then three-year-old boy, Governor Cuomo forced NYSDOT to lower the speed limit to 30 MPH. According to a recent communication from NYSDOT, collision rates along the 198 in the ensuing six months dropped by 80% when compared to the preceding three years. And that’s after the incredibly lethargic, piecemeal, and inept implementation of additional traffic calming measures and sporadic enforcement by the Buffalo Police.

Unfortunately, the statute of limitations for claims of liability like these is only three years*. That means NYSDOT is arbitrarily freed of all liability for collisions that occurred on their dangerous roadway prior to 2011. However, virtually nothing has been done to calm traffic east of Parkside Ave, which as you recall accounts for 30% of the total pre-2005 collisions on the entire roadway, or West of Grant Street. As such it’s very unlikely that these areas have enjoyed the 80% reduction in collisions experienced elsewhere. That means the statute of limitations for crashes that happened in these locations will extend six years beyond what ever date they actually make an earnest attempt to calm traffic. That includes the horrific crash the night of October 28, 2017 that woke my wife and me (lead image). The sound of the crash, the sight of the mangled vehicles, and the amount of time the ambulances spent at the scene made us shudder at the thought of the extent of the injuries and the reverberations that will be felt across the families, workplaces, and communities affected.

When you look at the extent of the crashes on Accident Graphic, the amount of financial liability for the medical expenses alone would be devastating to NYSDOT. Then if you factor in the property damage, lost income, etc…

Cities need SAFE, complete streets, freed of medians, capable of supporting public transportation, integrated with the surrounding street and park networks, with appropriate sized intersections, and on-street parking where appropriate (e.g., by the soccer fields in The Meadow). We’re not even asking for Vision Zero yet, we just want to be brought closer to the national averages for crashes, and hopefully a good deal below. If NYSDOT isn’t willing to accommodate that, for the entire roadway, then it’s extremely likely that they will be again be the defendants in the next legal precedent holding the engineers of danger accountable for the harms they cause.

It may be from a Law Office like William Mattar or Celino and Barnes that represents those hurt by these needless crashes. Or it may be from the insurance companies that absorb the financial losses. Or maybe from a class action lawsuit from all the needlessly injured. Or from all those that pay higher insurance premiums to cover the losses. One way or another, those who advocate for and design dangerous roadways will be held accountable for the damages that they cause.

1: www.casebriefs.com/blog/law/torts/torts-keyed-to-franklin/the-duty-requirement/friedman-v-state-of-new-york/

2: law.justia.com/cases/new-york/court-of-appeals/2016/196.html

3: www.dot.ny.gov/content/delivery/region5/projects/547022-home/547022-repository/NYRoute198ScajaquadaCorridorStudyJune2005NYSDOT547014BW.pdf

4: Attached

Post Script:

Regarding the current designs proposed in the FEIS that are opposed my every involved community organization: that the Federal Highway Administration was the third author on the 2005 EPP, makes NYSDOT Commissioner Matt Driscoll’s claims that the currentl plans are “as far as they the FHA will let them go” is plausible, but false.

*The statute of limitations for negligence claims is three years. But there’s a shorter 90-day limit to file claims against municipalities. That’s why the ad says “don’t wait, call 8!” Also, there may be several legal theories covering municipal liability for traffic injuries/fatalities. Negligence may be only one avenue toward liability. So, taken together: if you’re injured in an accident on the 198, it might be best to consult a lawyer and fast.

Written by BRo Guest Authors

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