New York State Court of Claims

New York State Court of Claims

RAGER/LEHNER v. THE STATE OF NEW YORK, #2000-001-516, Claim No. 98606


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Susan Phillips Read
Claimant's attorney:
William E. Montgomery, III, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Belinda A. Wagner, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 7, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

Claimants Denny G. Rager, II ("claimant Rager") and Wolfgang Lehner ("claimant Lehner") (collectively, "claimants") commenced separate actions seeking damages for the injuries sustained on July 11, 1996 when a car driven by Heather Donahue ("Donahue") in which they were passengers veered off the northbound travel lane of Route 9N in Warren County, scraped along the stone wall bordering the grounds of the Green Haven Motel, crossed the driveway leading into the Motel and crashed head-on into the stone wall at the driveway's northern edge. Claimants allege that this accident resulted from defendant State of New York ("defendant" or "the State")'s negligent failure to design, construct and maintain the roadway and adjacent shoulder properly. The claims were joined for a trial on liability and damages held February 14-16, 2000.

The Accident
During the summer of 1996, claimants were working as tennis professionals at the Lake George Club on Route 9N north of Lake George. On the evening of July 10, 1996, Donahue, a friend of claimant Rager's, drove her car to the club to pick up claimants and then proceeded south on Route 9N into the Village of Lake George. Donahue testified that she was generally familiar with the area of Route 9N near the Lake George Club, having driven there "quite a few times."[1]

Upon arrival in the Village of Lake George, Donahue and claimant Lehner spent several hours in a local nightspot called Neptune's. Claimant Rager left for awhile to visit with a friend at a neighboring restaurant, but subsequently returned to Neptune's and joined Donahue and claimant Lehner.

During the course of the evening, Donahue consumed two alcoholic beverages. She testified that she did not feel any effect from the alcohol. Claimants testified that Donahue did not appear intoxicated and her ability did not seem at all impaired as a result of having consumed the drinks.

Sometime after midnight, claimants and Donahue left Neptune's to return to the Lake George Club, with Donahue driving her car in a northerly direction on Route 9N. Claimant Rager sat in the front passenger seat and claimant Lehner in the back seat, where he promptly fell asleep. Claimant Rager characterized Donahue's driving immediately upon their departure from Neptune's as "OK."

Donahue estimated her speed at 40 miles per hour. She testified that after about 10 minutes of driving, she looked away from the road and down to the car's radio to change the station. When she looked back up, she sensed that her car was veering onto the right shoulder of the road and "down into the ditch." According to Donahue, she attempted to turn the steering wheel to the left and regain the driving lane. She further testified that claimant Rager yelled to her, then grabbed the steering wheel and turned it to the left. Donahue could not recall any further details, but assumed that she took her foot off the accelerator.

Claimant Rager's account of the accident corresponded with Donahue's. He stated that the car "veered off a little bit" as Donahue attempted to change the radio station and "got stuck in the culvert." He recalled yelling at Donahue and grabbing the steering wheel in an unsuccessful attempt to turn the vehicle to the left. The car scraped along the stone wall bordering the grounds of the Green Haven Motel, crossed the driveway leading into the Motel and crashed head-on into the stone wall at the driveway's northern edge.

Officer McGuirk's Testimony
Patrol Officer Christopher McGuirk ("Officer McGuirk") of the Warren County Sheriff's Department responded to the scene. Although Officer McGuirk could not testify as to the accident's cause, he saw no skid marks on the pavement when he inspected the area visually. Based upon markings along the stone wall, he estimated that Donahue's car left the travel lane about 30 to 50 feet south of the Motel's entrance.

Officer McGuirk interviewed Donahue briefly at the scene and later at Glens Falls Hospital. He testified that she exhibited signs of inebriation. The Police Accident Report that he prepared in connection with the accident notes "alcohol involvement" and "driver inattention" as apparent contributing factors (claimants' exh. 1; State's exh. O). Although McGuirk charged Donahue with driving while intoxicated, all charges against her for DWI or DWAI were ultimately dismissed.[2]

The Accident Site
The accident occurred in the proximity of Stations 52±50 on the northbound side of State Route 418, a 9.74-mile section of Route 9N, which runs along the west side of Lake George between the villages of Lake George and Bolton Landing. Route 418 was reconstructed from an existing road and incorporated into the State highway system in 1907. The roadway was not wholly reconstructed until after the accident; however, claimants introduced record plans from 1967 for a project involving "miscellaneous shoulder work" along a portion of State Route 418 including the accident location.

Although claimants' engineering expert, John A. Serth, Jr. ("Serth"), defined the project as one for resurfacing, DOT Design Supervisor Chester Burch ("Burch") acknowledged that the shoulders at the accident location were "rebuilt" as part of the project. In addition, the road has been resurfaced on a number of occasions: the Department of Transportation's photo logs dating from 1975, 1985, 1990 and 1995 (State's exhs. C, D, E, F, G, H, I and J) confirm that at least some of the resurfacing projects resulted in layers of asphalt extending only part of the way across the area between the white line marking the edge of the travel lane and the stone wall. Both these photo logs and photographs taken shortly after the accident (claimants' exh. 2, photographs 2a, 3b, 7a , 8a, 8b, 9a, 9b, 10a, 10b,11 and 12) show deterioration of the overall surface and, in particular, crumbling and cracking along the edges of the overlays. According to New York State's 1996 Highway Sufficiency Ratings (claimants' exh. 7), the pavement for the 3.38-mile stretch of State Route 418 including Station 52 received a surface rating score of 6, denoting "Fair" and "Distress is clearly visible," for the years 1992 to 1996; the "Dominant Distress" identified in the 1996 ratings was general alligator cracking.[3]

The property of the Green Haven Motel lies to the east of the highway and is bordered by a stone wall from its driveway to the next southerly intersection of Route 9N and Vandecar Lane.[4]
The motel itself sits below the level of the road. A culvert running under the driveway prevents water from the north, or uphill, side of the entrance from flowing down the driveway into the motel parking lot and building. Photographs of the area just to the south of the motel driveway reveal 20- to 22- inches of pavement sloping slightly away from the travel lane, then giving way to a paved depression which, in turn, abuts the stone wall. At its origin, the depression is approximately one foot deep and its bottom is aligned with the driveway culvert. As the roadway slopes downhill away from the driveway, the depression becomes shallower and ultimately flush with the shoulder. Claimants' theory is that the vehicle left the roadway and its right tire became wedged in the depression preventing Donahue and Rager from steering back onto the roadway.
No records were produced reflecting when or by whom the culvert and depression were constructed or whether they were installed with DOT's knowledge or permission. The first documentary evidence of the existence of the depression is a 1975 DOT photo log (State's exh. C). Although obscured by shadows, this photograph appears to show that (1) the depression had been paved as part of a continuous layer of asphalt extending from the travel lane to the stone wall; and (2) a second layer of asphalt was subsequently applied to the travel lane and part of the shoulder, but not to the depression. Although the DOT Road History suggests these applications took place no later than 1967, engineers on behalf of both parties agree that the Road History may be incomplete.

Claimants' Engineering Expert's Testimony
Serth, claimants' engineering expert, sought to establish that the entire distance from the travel lane to the stone wall at the site of the accident constituted the shoulder of the road and that the State was negligent in failing to maintain it as such. In determining the shoulder width, he relied in part upon 1967 record plans for a shoulder reconstruction project.[5]
He testified that those plans show shoulders varying in width between 2 feet and 8 feet along the entire length of the project (12-R1). Serth also referred to a Table of Stabilized Shoulders (9-R1), which denotes a shoulder width in the area between Station 51±00 and 59±00 of 4 to 8 feet. The title line of the Table of Stabilized Shoulders has been crossed out with an arrow drawn to the notation "SEE Book No. 6," which the State was never able to locate. Although the tables may indicate what was intended at the time the plans were drawn, the actual extent of the work completed would be ascertainable only by reference to Book No. 6 or by an examination of the site.
The Table of Stabilized Shoulders also indicates the existence of "ditches" in other locations but not near the accident site. A Table of Gutters in the same plan is crossed out in its entirety and marked with a reference to Book No. 6. No other records were produced indicating the existence or plans for construction of a ditch or gutter in the vicinity of the accident. Thus, without Book No. 6, the Court cannot determine whether a "ditch" or "gutter" existed or was constructed as part of the 1967 project.

Serth also relied upon 1959 record plans (claimants' exh. 5), which include a typical section drawing reflecting a shoulder width of 3 feet to 5 feet and a slope of 3/4" inch per foot, and the1996 New York State Highway Sufficiency Ratings denoting a shoulder width of 4 feet for a 3.38-mile stretch of SR 418 encompassing the accident site. Serth rejected Burch's explanation that the figure represents an average measurement, suggesting instead that 4 feet was the minimum shoulder width for that section of roadway. Based upon the record plans and the Highway Sufficiency Ratings, Serth concluded that the shoulder width in the area of the accident was 4 feet.

After reviewing photographs of the roadway in the proximity of the accident, Serth acknowledged that the distance between the travel lane and the stone wall near the intersection of Vandecar Lane was less than 2 feet and immediately to the south of the Green Haven Motel driveway was slightly less than 4 feet. He clarified that the measurements reflected in the record plans and Highway Sufficiency Ratings were the minimum except where an external condition, such as the stone wall, limited the space available to construct the shoulder.

Viewing the 1975 photo logs, Serth defined the shoulder as the entire area surfaced with the oldest visible layer of asphalt. He testified that although subsequent overlays stopped short of the wall, the width of the shoulder remained constant and the failure to surface the entire shoulder constituted improper maintenance on the part of the State. Serth also denied that the paved depression had been constructed by DOT. He opined that had that been the case, the depression would have conformed to the specifications for a ditch or gutter depicted in the typical section drawings of 1959 and 1967 record plans (claimants' exh 5, Sheet 2; claimants' exh 6, p 13-R1). He noted that the depression deviated significantly from those specifications with regard to its slope and distance from the travel lane and concluded it could not be considered a ditch or gutter.

Defendant's Witnesses' Testimony
Defendant relied upon the testimony of three DOT employees: Design Supervisor Burch,[6]
Warren County resident engineer Frank Komoroske ("Komoroske") and Highway Maintenance Supervisor Richard Hull ("Hull"). In reference to the photographs in evidence, the witnesses defined the "shoulder" as the pavement more or less level with the travel lane, as distinguished from the depression which they identified as a drainage area. They further testified that the wall, the culvert and the depression all appear to be within the DOT right-of-way; however, no DOT plans reflect the existence of the culvert or the depression. Burch and Komoroske explained that the construction of a driveway culvert is the responsibility of the property owner and today, at least "in theory," would require the permission of DOT. They acknowledged no records indicate such a permit had been issued.
Komoroske indicated he could not confirm whether DOT had constructed the depression. He estimated its slope at one on one and conceded that the slope did not conform to the typical section specifications for asphalt gutters set forth in the 1967 record plans. He nevertheless characterized the depression as a paved gutter and indicated it is maintained as such by DOT. He opined that the construction of the paved gutter at the level of the culvert conformed with sound engineering practices in that it allowed for necessary drainage within the space confined by the stone wall. Komoroske opined that even in the absence of a culvert, a gutter would be indicated to prevent the volume of water flowing downhill from spreading onto the pavement. In addition, Komoroske testified that he conducted a search of complaints regarding the highway in the proximity of Station 52 for a 10-year period and found none. He stated that his review of the accident history for the years 1993-1996 revealed "no overall safety problems."

Hull likewise indicated that he had received no complaints with regard to the area of the accident. He testified that during his tenure in the Warren County residency of DOT, he had performed all aspects of highway maintenance, including supervising a crew performing work on Route 9N. He expressed familiarity with the area of the accident and recalled that during rainstorms, water was effectively diverted through the culvert and the "paved drainage area."

Discussion and Findings
The State has a nondelegable duty to maintain its roads and highways in a reasonably safe condition (
see, Friedman v State of New York, 67 NY2d 271). This duty extends to conditions adjacent to the highway and once the State undertakes to provide a shoulder alongside the roadway, it must maintain that shoulder in a reasonably safe condition for foreseeable uses, including those uses resulting from a driver's negligence or an emergency (Stiuso v City of New York , 87 NY2d 889; Bottalico v State of New York, 59 NY2d 302, 305). On the other hand, where the paved road surface is "more than adequate for safe public passage," travel beyond those limits on unimproved land adjacent to the roadway is generally not contemplated or foreseeable and therefore the municipality is under no duty to maintain it for vehicular traffic (Tomassi v Town of Union, 46 NY2d 91).
In light of
Tomassi and its progeny, claimants endeavor to convince the Court that the paved depression falls within the "shoulder" of the road and therefore within the sphere of the State's duty. Whether constructed by the State or later adopted, the depression plainly was not intended for vehicular travel. Nevertheless, it is undisputedly within the DOT right-of-way and has been maintained by DOT as a paved drainage area. Moreover, unlike the unimproved land adjacent to the shoulder in Bottalico or the drainage ditch beyond the paved surface in Tomassi, the depression at issue in this case is contiguous with the shoulder and was paved by DOT. Notably, the Court of Appeals in Stiuso v City of New York (supra) reversed an Appellate Division order dismissing the complaint of a driver whose vehicle purportedly became caught in a "swale," defined as a paved concrete strip abutting the asphalt roadway. The Court held that the Appellate Division's reliance on Tomassi was misplaced, as the court could not have determined as a matter of law that the accident was caused by "a condition existing on unimproved land." Consequently, whether defined as part of the shoulder or as a paved gutter, it is neither extraordinary nor unforeseeable that a motorist using the shoulder in a contemplated manner could become stuck in the depressed area (see, Pollard v State of New York, Ct Cl, filed Aug. 18, 1991, Lyons, J., Claim No. 70119 [the State's duty with respect to "the shoulder and its immediate environs" includes paved gutter]). The Court cannot conclude, however, that the depression constitutes an unreasonably dangerous roadside hazard so as to require the State to take remedial action with respect to it.
The State is not an insurer of the safety of its roadways and its duty is fulfilled so long as a highway may be said to be reasonably safe for people who obey the rules of the road, taking into consideration such factors as the traffic conditions apprehended, the terrain encountered, fiscal practicality and a host of other criteria (
Tomassi v Town of Union, 46 NY2d 91, 97, supra). As the Court of Appeals recognized in Tomassi, certain risks are unavoidable. "Especially in rural locales, such objects as utility poles, drainage ditches, culverts, trees and shrubbery are often in close proximity to the traveled right of way" (id. [citation omitted]). Furthermore, the State is not obligated to undertake expensive reconstruction simply because standards have changed over the years (Holscher v State of New York, 59 AD2d 224, 227, affd 46 NY2d 792; Van de Bogart v State of New York, 133 AD2d 974). Absent a hazardous condition of which the State has notice, the State's duty is met when the highway comports to the standard applicable at the time of the construction or reconstruction (Cipriano v State of New York, 171 AD2d 169, lv denied 79 NY2d 756).
Claimants contend that the State's negligence is evidenced in part by the incomplete layers of asphalt and the inconsistent surface marked by reflective cracking, general alligator cracking and chunks of broken pavement. Although the partial repavings undoubtedly increased the elevation differential between the travel lane along which the left tire of Donahue's car purportedly traveled and the depression where the right tire traveled, claimants' expert was unable to quantify the extent of that differential. Moreover, the testimony of the witnesses does not support a conclusion that the increase in elevation or any general pavement distress was a substantial contributing cause of the accident: claimants' theory is that Donahue was unable to recover because her tire became lodged in the depression. Any conclusion that the accident resulted from the existence of ridges or deteriorated pavement would be purely speculative.

Claimants also assert that because of the existence of the depression, the shoulder at the accident site failed to comport with the minimum requirements set forth in the 1967 record plans.[7]
In support of the argument, Serth testified that the 1967 plans required a shoulder with a standard slope of 3/4" per foot measuring 2 feet to 8 feet in width along the length of the project and 4 feet to 8 feet in the area of the accident. He portrayed the Table of Stabilized Shoulders and the typical section drawings as a minimum standard to be applied without deviation in all areas of the highway.
Serth's characterization is unpersuasive. Even assuming the crossed-out Table of Stabilized Shoulders may be taken as evidence of the intent of the project planners, by Serth's own admission it does not reflect changes made as a result of conditions encountered in the field. Significantly, Serth acknowledged that the span between the travel lane and the stone wall at the site of the accident measured less than 4 feet and, at the intersection of Vandecar Lane, tapered to less than 2 feet. Moreover, although the 1967 plans include typical section drawings for the construction of a ditch and an asphalt gutter, nothing in the plans indicates an intent to construct either at the accident site. Absent a more specific reference to the accident location, the record plans are not convincing proof that the State recognized the existence of a hazard, planned to eliminate it and failed to conform to its own plan. Furthermore, even assuming that the 1967 project constituted a "reconstruction" sufficient to impose a duty upon the State to conform with then-current engineering standards, claimants did not come forth with proof of a minimum engineering standard in effect in 1967.

The Court is not persuaded that the drainage depression constituted a roadside hazard that the State was obligated to ameliorate. As demonstrated by the record in this case, the depression was necessarily placed in line with the driveway culvert to provide essential drainage away from the property of the Green Haven Motel and the pavement. Given the location of the stone wall, the depression was located as far away from the travel portion of the roadway as was practically possible. A functional, paved, relatively shallow drainage gutter on a rural road is the type of hazard that creates no unreasonable danger to careful drivers (
Tomassi v Town of Union, supra; cf. Skiff v State of New York, 125 Misc 2d 791, 794). Moreover, the absence of previous accidents at this location belies the suggestion that the depression constituted an unreasonably dangerous condition of which the State was aware (see, Hough v State of New York, 203 AD2d 736, 739; Sengit v State of New York, 148 AD2d 519, lv denied 75 NY2d 702). As the Tomassi Court recognized, "[a]ny public roadway, no matter how careful its design and construction, can be made safer." To impose liability upon the State under the circumstances presented here would effectively render the State of New York the insurer of the safety of motorists on its public highways.
In any event, the Court is not persuaded the existence of the depression was the proximate cause of the accident. By all accounts, Donahue's car left the travel lane of the highway because of her inattention, whether caused by inebriation, fatigue, distraction or some combination of such factors. In other words, nothing about the construction or maintenance of the highway was shown or even alleged to have caused Donahue to veer from the travel lane.

The Court credits the disinterested testimony of Officer McGuirk, who estimated that Donahue's car left the travel lane approximately 30 to 50 feet south of the entrance to the Green Haven Motel. According to Donahue, she was traveling at an approximate speed of 40 miles per hour, or 58.8 feet per second. Although the vehicle's contact with the stone wall may have slowed it, claimants presented no evidence to that effect. Donahue's testimony that she was able to react in the split second between the time her car came into contact with the wall and the time it reached the motel driveway is questionable; the further suggestion that claimant Rager had time to yell at Donahue, grab the steering wheel with both hands and turn it to the left virtually inconceivable. Serth, claimants' own expert, estimated that in order for the passengers to have had time to react, the vehicle would have to have been on the shoulder for 100 feet. Moreover, although claimants contend that the depression was flush to the shoulder where Donahue's car first left the travel lane and "became deeper and wider until it eventually reached a depth in excess of 12 inches at the culvert pipe" (claimants' Post-Trial Mem, at 4), they introduced no evidence establishing at what point and for what distance the depression is not traversable. The photographs in evidence suggest the depression becomes more or less level with the shoulder within a relatively short distance, making Donahue and claimant Rager's renditions all the more unlikely. Thus, on the evidence presented, the Court cannot conclude that but for the existence of the depression, Donahue would have been able to regain the travel lane prior to striking the stone wall.

Based upon the foregoing, the Court dismisses the claims for failure to establish a prima facie case of negligence. Any motions on which the Court previously reserved judgment or which were not previously decided are denied. The Clerk is directed to enter judgments accordingly.

December 7, 2000
Albany, New York

Judge of the Court of Claims

Unless otherwise indicated, all quotations are from the Court's trial notes or audiotapes of the trial.
According to Donahue's testimony, she pleaded guilty to a charge of driving on the shoulder.
"Alligator cracking" is defined as "interconnected cracks forming a series of small polygons resembling an alligator's hide" (claimants' exh. 7, at vii). The manual denotes a value of 20% as a cut-off to distinguish between isolated and general distress frequency.
The wall is not shown in the original plans for construction of the road and no documents were produced to indicate that it was constructed by or with the permission of DOT. The wall is noted in drawings drafted in 1932 for a project apparently never undertaken.
Record plans are those reflecting changes made to design criteria as a result of conditions encountered in the field. The sheets upon which revisions have been made are designated "R1."
By agreement of the parties, Burch was called on claimants' case in chief and was cross-examined by defense counsel. Although defense counsel indicated an intent to recall Burch, she ultimately declined to do so. Both parties relied in part upon Burch's testimony.
This argument assumes the depression existed in 1967. As noted previously, the earliest indication as to the existence of the depression is in photographs, commonly referred to as DOT photo logs, dating from 1975. The 1975 photo logs (State's exhs. C and D) further confirm the depression had been paved by that time. Inasmuch as the surfacing in the depression appears to be part of a continuous layer of asphalt extending across the shoulder, the paving can be fairly attributed to DOT. A second layer of asphalt is also depicted in the 1975 photo log, suggesting that some time had passed since the paving of the depression. Consequently, it is reasonable to infer that the depression existed by 1967.