The Third Department determined summary judgment was properly awarded to county in case alleging negligent highway design. Plaintiff’s vehicle left the roadway and went down an embankment, incurring traumatic brain injury resulting in amnesia re: the accident. The complaint alleged there should have been a guide rail where plaintiff’s vehicle left the road. However, there was a twenty-foot wide flat area between the edge of the road and the embankment. The court noted that the plaintiff’s amnesia did not excuse her from submitting proof of proximate cause:
“Municipalities owe a nondelegable duty to the public to construct and maintain their roads in a reasonably safe condition” … . While this duty includes providing adequate warning signs and guide rails or other barriers in appropriate circumstances, a municipality will not be held liable for a breach of duty unless the breach proximately caused the accident … . Accordingly, to establish a cause of action for negligent highway design, plaintiffs were required to provide evidentiary facts that could support a finding that defendant breached its duty to maintain the road in a reasonably safe condition, and that this breach was a proximate cause of the accident. * * *
Plaintiff’s amnesia as to the cause of the accident does not excuse her from submitting prima facie proof of proximate cause. In a proper case, an amnesiac plaintiff may be held to a lesser burden of proof as to proximate cause than a party who is able to provide an account of events … . However, that doctrine is inapplicable where, as here, the defendant has no greater access to the underlying facts than the amnesiac plaintiff … . Moreover, even when the doctrine applies, the burden remains on the amnesiac plaintiff to present prima facie proof of the defendant’s negligence to permit a jury to base its verdict on evidence rather than speculation … . This burden may not be satisfied by “inferences as to causation which are based solely upon speculation” … . As plaintiffs neither made an evidentiary showing that defendant breached its duty to construct and maintain the road in a safe condition nor that such a breach proximately caused the accident, summary judgment was properly granted to defendant on the ground that plaintiffs failed to establish a cause of action for negligent highway design. Lindquist v County of Schoharie, 2015 NY Slip Op 01852, 3rd Dept 3-5-15