New York State Court of Claims

New York State Court of Claims

CAREY v. THE STATE OF NEW YORK, #2000-017-606, Claim No. 95949, Motion No. M-61285


Defendant found liable for injuries sustained by claimant when a tree limb fell onto her automobile while she was driving on a State highway. Defendant had notice of the dangerous condition created by the unhealthy tree.

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):

Claimant's attorney:
Tendy & Cantorby: Jonathan Katz, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: Michael Rosas, Esq., AAG
Third-party defendant's attorney:

Signature date:
September 29, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks an award of damages against the State of New York for injuries she sustained when a tree limb fell on her automobile as she was driving on State Route 115 (also known as Salt Point Turnpike) in the Town of Poughkeepsie, Dutchess County, on July 19, 1996. She alleges that the incident was the result of the State's negligent failure to properly maintain the highway for safe travel. The trial was bifurcated and only the issue of liability will be addressed herein. Claimant testified that the incident in question occurred as she was driving her 1989 Buick Skyhawk on Route 115, alone in the car, at about 5 p.m. She stated that it was a very hot and sunny day and that traffic was moving slowly. In claimant's words:
I was moving slow in traffic, and my car came to a dead stop with an enormous – enormous sound, a boom and my windows exploded and I was full of glass. And I didn't know what happened. I remember – I remember there being dirt and glass all over the place. I crouched down in my car *** once I realized what had happened, that a tree fell on my car, I was directly underneath the tree. (Vol. I, 7-8).
Claimant stated that five to seven men removed the limb from her car before she was able to leave it and she remained at the scene until her then fiancée arrived, after which they retrieved a camera from their apartment, which was nearby, and returned to the accident scene and took photographs, within about an hour of the accident, some of which clearly show the limb that had fallen on her car as well as the tree whence it came. They returned to the scene about a week later, on July 27, 1996, and took additional photographs.

Anthony Antenucci was a Town of Poughkeepsie police officer who was advised by radio call as well as by passing motorists of the claimant's accident. Although the limb was still partially on the car when he arrived, he was advised that it had already been moved. The officer testified first that the offending tree "never really stood out" to him (id., 62); later stated that he "may have" noticed it but could not recall (id., 74); and finally acknowledged that "I know I've gone by that and noticed the tree -- parts of that tree dead, but I've never *** called it in" (id.,79). He observed that "some of that tree was dead, but that actual limb probably wasn't completely dead *** it had some vegetation on the outsides, but it appeared that where it had broken off, it had begun to deteriorate" (id., 67). He agreed with claimant's recollection that the weather was sunny and dry and that there was some traffic congestion at the time.

Joseph Kennedy, an arborist, or tree surgeon, testified as an expert witness on behalf of the claimant. Mr. Kennedy, who has been involved in the field for 23 years and is a member of the International Society of Arboriculture, has owned his own business since 1990 and, additionally, is retained by the Village of Millbrook and the Town of Washington, both in Dutchess County, to patrol their roads and look for hazardous trees. In preparation for this testimony at this trial, Mr. Kennedy reviewed the photographs that were taken on the day of the incident in question and a week later, and he visited the site, accompanied by a Department of Transportation (D.O.T.) employee, shortly prior to the trial.

Kennedy described the tree in question as a double-leader willow tree:
still alive, but the part over the road is completely dead and some places are missing limbs. The only greenery on the upper part of the limb [sic] is an ivy – Boston ivy vine growing off the side of the tree. It's been completely dead for some time, judging from the deterioration. There's no bark on the limbs on the tree and on the branches. (Vol. II, 101).
He explained that while there was some greenery on the back side of the tree (the side farthest from the road) that was probably due to the presence of a stream there. He advised that willow trees are one of the weakest types of trees, with "no structural integrity" (id,, 102), that they are notorious for being intolerant to salt, and that the classic sign of salt damage - caused by the insides of the tree rotting - is deterioration working its way down from the crown of the tree (see Exhibits 12, 13 and 15).

According to Mr. Kennedy, as the result of there being virtually no grain to the wood of a willow tree, limbs from perfectly healthy trees are prone to snap off for no other reason, and the risk of such an occurrence is even greater in an unhealthy tree. Looking at a close-up photo of the tree taken on the date of the incident in question (Exhibit 6), Kennedy identified two spots on the tree whence limbs had broken off, one a few months prior and one landing on the roof of claimant's vehicle. Looking next at a photo of the fallen limb (Exhibit 7), Kennedy estimated that it was rotted approximately 80% through, a condition that would take two to three years to develop.

Mr. Kennedy was asked about a bridge construction project in 1992 that involved the sinking of concrete footings into the ground near the tree (see Exhibit 49A, showing excavation at the base of the tree). He stated that the footings were seven to eight feet from the tree, and he opined that their installation at that location necessarily involved severing the tree's root system. It was this root damage, according to Mr. Kennedy, along with the likelihood of salt damage resulting from the tree being adjacent to a highway, that likely resulted in the rot that was evidenced in the various photographs, although it was clear that he viewed the root damage resulting from the installation of the bridge footings as being the major problem.

Mr. Kennedy advised that, in connection with his municipal employment, he drives around looking for trees that might be hazardous, as might be shown by dead and dying branches, trees that aren't fully leafed, weak crotches, weak forks, and, most obviously, those with branches or limbs hanging over the road. Based upon his view of the photographic evidence, he offered that he would have advised that the leader that was closer to the road be removed. He estimated that such would be a three and one-half to four hour job that would cost between $400 and $440.

William Peckham, a D.O.T. landscape architect responsible for the seven-county Region 8, from New York City to Albany, who testified on behalf of the defendant, described his activities putting together a tree-removal contract in Dutchess County in 1996. Characterizing the planning that was involved in the formulation of the contract that is reflected in the 563-page contract file (Exhibit A), Peckham testified:
In order to maximize the amount of work that we could get for the money we had to deal with, we were prioritizing the trees that we're looking at based on the size of the trees, the difficulty to remove the trees. We didn't deal with, particularly, smaller trees. We tried to concentrate on large, more hazardous, and dangerous trees, trees that were in power lines or wet areas. We tried to concentrate on trees that were basically stone dead or potentially dangerous. Some live trees that were particularly hazardous to the road. Complaints that we had from homeowners and various residencies. Clearing for ditches and guiderail deflections. Those kind of problems. Some herbiciding was included. That's essentially it. (Vol. III, 210-211, see Exhibit A, 434).
Peckham stated that the initial proposal was put together in consultation with the D.O.T. maintenance group, who had compiled, over a period of years, lists of problem trees resulting from what they call "windshield surveys," which is their term for driving around and looking for problem trees. Pages 436 through 471 constitutes a list sent from John Clark of the Transpostation Maintenance bureau to Ted Stadler of the Planning and Program Management bureau, dated May 30, 1996, which begins: "Attached are the remainder of the proposed tree removal candidates mentioned in my May 22, 1996 memorandum. They were submitted by the resident engineers for inclusion in the subject project" (id., 436). The list contains a reference to the tree that is the subject of this lawsuit: "Route 115: Willow tree 200' north of Fallkill Ave. 2' across" (id., 448). Peckham explained that not all trees submitted by the maintenance people ended up included in the removal project and that the tree in question was one of those that failed to make the final cut, so to speak. He stated that they only had so much money and they had to "prioritize" (Vol III, 216). Looking at his notes made on the memo, Peckham advised that by August of 1996, he had examined all the trees on the list and decided which ones would be added to the removal contract. Given the temporal parameters set forth in the exhibit and in the testimony – i.e., a list received by Planning and Program Management in early June, a limb that fell onto Route 115 on July 19th, and an inspection that was completed by some unspecified date in August, prior to the commencement of work – there is no way to know whether the inspection occurred before or after the limb fell. Peckham had no actual memory of conducting a visual inspection of the area in question.

On cross-examination, Mr. Peckham was shown two photographs (Exhibits 13 and 20[1]) and asked, with respect to the tree shown thereon, if he would recognize it as a tree that "poses a hazard that would have made it onto the list" (Vol 111, 233). He responded:
Yes, I probably – I would have probably added it to the list if I'd seen it *** if I'd seen this, this particularly large dead limb here which hangs over the road, yes, I would have – I would have added [it] to the list. (id., 234).
When he had been asked at his deposition about the lack of foliage on the leader of the tree that was closer to the road, particularly with reference that shows such lack of foliage visible from some distance down the roadway, Peckham testified "assuming I saw this tree I would have probably have added at least that limb that reaches out towards the road. I would have included that on the list" (id., 239). Nevertheless, it was clear, and Peckham so testified, that the timing of the events to which he testified was such that even had the tree in question been put on the list, it would not have been addressed in time to have prevented the limb from falling on the claimant's car on July 19, 1996.

In a separate line of questioning, Peckham acknowledged that the process by which D.O.T. retains an outside contractor to carry out a tree removal project is only one of two ways that a tree could be removed. The other is via regular D.O.T. tree-removal crews that go out and cut down hazardous trees or limbs on their own, without regard to the scheduling of major operations such as that reflected in Exhibit A. He agrees that if someone had determined that a tree, or a limb, should be removed, then such could be accomplished by D.O.T. personnel.

John Clark, a D.O.T. civil engineer who was employed in Region 8's Highway Maintenance bureau in 1996, testified on behalf of the defendant. He stated that, at the time, there were two D.O.T. tree crews of five employees each, one stationed on either side of the Hudson River. Mr. Clark explained that local personnel in the various residencies that comprised Region 8 could address trees up to eight inches in diameter on their own, but for trees greater in size, they would call in one of the two regional crews.

Although when he was asked to look a photo of the tree in question (Exhibit 9 - which shows the roadside leader without foliage, with the limb that fell on claimant's car already gone) he stated that such would not constitute an emergency situation requiring immediate attention, when he was asked to assume that the tree shown on the photo had a limb that extended over the roadway to any extent, and it looked as though the top of the tree were diseased, would that constitute an emergency, he replied that it "could" (Vol III, 210).

The defendant has made two motions that are currently before the court. At the commencement of trial, it moved for permission to amend its answer to assert a "qualified immunity" defense, and at the conclusion of proof, it moved to dismiss for failure to establish a prima facie case.

That the State's duty to provide travelers on its highways with a reasonably safe roadway on which to travel is beyond question (see, Harris v Village of East Hills, 41 NY2d 446; Fowle v State of New York, 187 AD2d 698; Rinaldi v State of New York, 49 AD2d 361). All of the judicial decisions cited by both parties acknowledge this duty. Where the outcomes of these cases differ is primarily based on the issue of notice, and that is of course a factual determination to be made in each instance. Notice may be either actual or constructive; i.e., a claimant may prove that the State actually knew of the allegedly hazardous condition and unreasonably failed to act to address it, or he or she may prove that the condition was so apparent, and existed for such a long period of time, that given all of the circumstances, including the burden involved in amelioration, the failure to act was unreasonable and constituted negligence (see ,e.g., Gillooly v County of Onondaga, 168 AD2d 921; Waddingham v State of New York, 90 AD2d 855; Rinaldi v State of New York, supra, 49 AD2d 361). Here, both actual and constructive notice are at issue.

The presence of the tree in question on the proposed removal list that was sent on May 30, 1996 (Exhibit A, 436, 448) indicates actual knowledge of the dangerous condition posed by the tree on the part of D.O.T. sometime prior to that date. The two factors giving rise to such notice were undoubtedly the leafless and indeed lifeless appearance of the roadside leader and the overhanging limb. Those factors, combined with the additional factor of the presence of the scar indicating the spot from which a limb had fallen earlier (a few months earlier by Mr. Kennedy's estimation) are also relevant on the question of constructive notice. The photographs of the tree (e.g., Exhibit 13) combined with Mr. Kennedy's unrefuted testimony compel the conclusion that the tree's appearance was the same throughout the 1996 growing season and, in all likelihood, not substantially different during the previous year. The court has little trouble concluding that any reasonable D.O.T. employee who traveled the highways on the lookout for dangerous conditions should have noticed the tree in question. During his "windshield inspections" such a reasonable employee should have appreciated the hazard posed by this dying tree, containing a limb directly over the way of travel, and should have taken steps to have the limb removed immediately. The defendant's argument to the contrary is supported by case law that, in every instance, is factually distinguishable[2]. When one considers claimant's evidence as to the cost and effort involved in removing the limb, the conclusion that the failure to have done so prior to July 19, 1996 was negligence becomes inescapable. Whether or not the tree was part of the 1996 region-wide project that was let to an outside contractor is irrelevant, as is the fact that inclusion of the tree in that project would not have led to its removal in time to prevent the subject occurrence. Defendant's employees were clear that removal of trees and limbs was part of the regular day-to-day maintenance operations conducted within the residencies. It was the failure to have removed the limb as part of such routine maintenance operations, not its removal from the major project, that constituted the breach of the State's duty, a breach that was the sole proximate cause of the limb falling on the claimant's vehicle.

Perhaps realizing that an analysis of the facts on basic principles of negligence law would not augur well for its case, defendant seeks to argue that a "qualified immunity" applies. The State's duty to keep its highways in reasonably safe condition "is measured by the courts with consideration given to the proper limits on intrusion into [its] planning and decision-making functions. Thus, in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision (Alexander v Eldred, 63 NY2d 460, 465-466; Weiss v Fote, 7 NY2d 579, 585-596, supra.)" (Friedman v State of New York, 67 NY2d 271, 283). This principle arises from the recognition that to allow a trial court to evaluate "the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and place in inexpert hands what the Legislature has seen fit to entrust to experts" (Weiss v Fote, supra.).

The Friedman/Weiss qualified immunity was applied in Trautman v State of New York, 179 AD2d 635, where the fiscal austerity that was imposed on the State by economic conditions in the early 1970's led to the limitation of a planned installation of guiderails along an 11.4-mile stretch of the Grand Central Parkway to include only a 4.5-mile segment. In addition to noting that the defendant's contention that the modified plan represented a "reasonable plan of governmental services," the appellate court pointed out the proof in the record of the legitimate financial concerns due to the "recessionary period which forced the DOT to reorganize its priorities" (id., 636). In contrast, in Gregorio v City of New York, 246 AD2d 275, involving the failure to replace an allegedly defective median barrier on the Bronx River Parkway, the qualified immunity defense was rejected, with the court observing that there was "a paucity of evidence as to any planning, ordering of priorities, or any limitation of available funding" (id., 281).

Putting aside, for a moment, the question of what evidence is required to sustain a qualified immunity defense, claimant argues that it has no relevance in any event to the failure to engage in such a basic maintenance task such as removal of a tree limb overhanging a highway, and cites Judge Rossetti's decision in Guido v State of New York, Ct Cl, unreported decision filed December 31, 1996, affd 248 AD2d 592):
We accordingly do not find this a case where State experts made a value judgment as to how scarce resources should be allocated. Rather, we find this a simple negligent failure to perform legally mandated duties. Hence, we do not deem such a would-be defense material to this case.
Although defendant correctly notes that the rejection of the qualified immunity defense was not specifically discussed in the Second Department's affirmance of Judge Rossetti's decision, it is clear that such was the result of either the State's abandonment of that defense on appeal or the appellate court's determination that it was not even worthy of explicit comment. The appellate decision merely recites the State's duty, the requirement of notice, and the support in the record for the findings of breach of duty and notice. Contrary to the defendant's contention that there is nothing in the appellate decision to indicate that qualified immunity does not apply to routine tree maintenance and removal, in fact the very affirmance itself necessarily means that Judge Rossetti's finding that there was no qualified immunity was accepted by the appellate court.

Moreover, examination of those cases where qualified immunity was held to be a bar to liability requires the conclusion that it is inapplicable here. The principle is based, ultimately, on the separation of powers among the various branches of governments that exist in a democracy. The legislature having determined that particular decisions should be made by a particular division of the executive branch, in this case the Department of Transportation, it is not within the province of a judge or jury to determine that another choice would have been better, assuming that the decision was the product of adequate study, that it had a reasonable basis, and that the duty of continuing review was met (Weiss v Fote, supra., 7 NY2d 579). In the highway context, such decisions involve planning, allocation of resources, construction and reconstruction, and other matters that require the considered deliberations of experts, such as installation of median barriers or traffic signals and signs. The reported decisions in the field of qualified immunity for highway planning decisions are all concerned with such matters, and the salient factor is that they all involve the role of engineers in evaluating all of the extant circumstances and coming to decisions, sometimes prioritizing needs while taking into account financial considerations. Here, the State's negligence consists not failing to include the tree on the final removal list (which may well have happened after the limb fell on claimant's vehicle, thus removing the exigency) but in failing to have removed the limb as part of the routine maintenance that is a part of the duties of each residency in the D.O.T. There is no indication that anyone made a decision with respect to this limb, that anyone considered it and determined that removal was not a priority because there were other situations in the residency that were more dangerous and there was not sufficient funding to attend to everything. The only conclusion that can be drawn from the record was that it was simply not done. Nobody noticed it, or nobody thought that it was worth spending the relatively few dollars and man-hours that would have been necessary to remove the hazard. There is no indication of any planning that would give rise to a qualified immunity.

This is not to say that the court is laying down a blanket rule that qualified immunity may never be afforded to any matter that falls within the rubric of "maintenance," but rather that the specific facts established herein provide no occasion for application of the principle. And, even were this such a case, the proof submitted falls woefully short of what would be required of a successful qualified immunity defense. Defendant's position seems to be that all that is required is intone the words "qualified immunity" and then the failure to have addressed a known problem will be excused. Here, there was no proof concerning what other things were attended to instead of trimming the limb from this willow tree and therefore no proof tending to show that such other projects were more important. Nor was there any evidence on the question of how much funding was available for such projects in the residency or any indication there was any "adequate study" of this tree or that there was a reasonable basis for a "prioritization." The cases, beginning with Weiss v Fote, would all seem to require such proof, a requirement that is not met by simply having a D.O.T. employee use the word "prioritize" in his testimony without providing the court with the factual basis for such alleged prioritization. Here, no proof upon which the court could base a finding of qualified immunity, even if such a defense was available, was presented.

Accordingly, the defendant's motion to add a qualified immunity defense to its answer is DENIED because there is no merit to such a defense. Defendant's motion to dismiss is also DENIED and, since the court further finds that claimant was free from comparative fault, the Chief Clerk is directed to enter interlocutory judgment in favor of the claimant. The damages trial will commence on November 22, 2000 at 10:00 a.m..

September 29, 2000
White Plains, New York

Judge of the Court of Claims

[1]Although the transcript refers to Exhibits 13 and 20, since Exhibit 20 is a photo of claimant's automobile, it is apparent that the witness was actually viewing Exhibit 13 and some other exhibit that shows the limb he refers to in his testimony.
[2]Harris v Village of East Hills, 41 NY2d 446, 450 ("the tree was not in such a patently defective condition as would or should have out a patrolman inspecting the roadway on notice of the potentially dangerous interior condition of the tree"); Leach v Town of Yorktown, 251 AD2d 630, 631 ("there is no evidence that the tree trunk showed any visible, outward signs of decay prior to the accident"); Fowle v State of New York, 187 AD2d 698, 699 (from the parkway, the tree appeared to be healthy"). The photographic evidence submitted herein could not possibly support any of these conclusions.