# Alexander v. Eldred > Appellate Division of the Supreme Court of the State of New York · March 8, 1984 · 100 A.D.2d 666 URL: https://www.frixlaw.com/law-library/cases/9786638 ## Case - **Full name:** Scott L. Alexander, Appellant-Respondent, v. Frank D. Eldred Et Al., Respondents-Appellants - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** March 8, 1984 - **Citations:** 100 A.D.2d 666; 473 N.Y.S.2d 864; 1984 N.Y. App. Div. LEXIS 17655 - **Precedential status:** Published - **Opinion:** Concurring in part by Casey - **Judges:** Mahoney, Casey - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9786638 ## Opinion text Casey, J. (concurring in part and dissenting in part). While in agreement with the majority insofar as the amount of the verdict is concerned, I cannot agree with the conclusion that a reasonable view of the evidence permits the imposition of liability for negligence on the part of defendant City of Ithaca. The majority relies upon the opinion testimony of plaintiff’s expert that a stop sign should have been installed at the intersection and evidence that other signs had been installed elsewhere by the city. As a general rule, the decision as to whether to install a traffic control device is a discretionary governmental function not resulting in liability on the city’s part (Cimino v City of New York, 54 AD2d 843, 844 , affd 43 NY2d 966 ), involving, as it does, the city’s judgment as how best to allocate its limited resources for the benefit of the public. “In the area of highway safety, at least, it has long been the settled view, and an eminently justifiable one, that courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits; something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public” (Weiss v Fote, 7 NY2d 579, 588 ). Such evidence is lacking here. 11 In any event, even if it could be said that in failing to erect a stop sign or warning sign the city breached a duty owed to plaintiff, there is no evidence from which the jury could reasonably conclude that such a breach was a proximate cause of the accident. Both drivers were familiar with the intersection of Stewart Avenue and Edgecliff Place, plaintiff having regularly traveled Stewart Avenue and defendant cab driver having delivered several fares to the fraternity house located on Edgecliff Place. Plaintiff testified that he slowed to 15 or 20 miles per hour as he approached the intersection, but did not see the taxi cab until just before impact. Defendant cab driver testified that he stopped at the intersection momentarily, looked both ways and proceeded into the intersection, without observing plaintiff’s motorcycle until the moment of impact. Plaintiff initially expressed the opinion that the cab never stopped before entering the intersection, but thereafter conceded that he had no actual knowledge as to whether the cab stopped momentarily, as defendant cab driver testified. There were no other witnesses to the accident. H Given this undisputed evidence, the only conclusion reasonably to be drawn therefrom is that the accident was attributable solely to the inattention of the drivers (Tomassi v Town of Union, 46 NY2d 91, 97-98 ), and the jury having found plaintiff free of contributory fault, the sole proximate cause of the accident was defendant cab driver’s failure to observe plaintiff’s motorcycle and failure to yield the right of way. * Since failure to observe the rules of the road was the cause of the accident, the city’s installation of the signs recommended by plaintiff’s expert would have served no useful purpose (Tomassi v Town of Union, supra). Indeed, only pure speculation could lead to a conclusion that the existence of such signs would have caused either driver, particularly defendant cab driver, to act so differently as to avoid the accident. Accordingly, in addition to modifying Trial Term’s order as to the amount of plaintiff’s damages, I would set aside so much of the verdict as imposes liability against defendant city. Inasmuch as the evidence conclusively establishes that the cause of the accident was defendant cab driver’s failure to observe plaintiff’s motorcycle and failure to yield the right of way, whether he actually stopped before proceeding into the intersection is irrelevant. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9786638. Public record. Not legal advice.