New York State Court of Claims

New York State Court of Claims

ASNIP v. THE STATE OF NEW YORK, #2001-010-060, Claim No. 97281


Synopsis


Tree fell across roadway; defendant not liable, however, due to lack of notice

Case Information

UID:
2001-010-060
Claimant(s):
PATRICIA ASNIP, as Executrix of the Estate of WILLIAM ASNIP, Deceased
Claimant short name:
ASNIP
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97281
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
JOHN F. DECHIARO, ESQ.MARY BETH MULLINS, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Michael Rosas, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 19, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2001-010-061


Decision


These two claims, which were joined for trial, arise out of an accident that occurred on December 6, 1996 when a tree, measuring 120 feet tall and 26 inches in diameter, fell across the three southbound lanes of the Sprain Brook Parkway (the "Sprain"), approximately four tenths of a mile north of Jackson Avenue near milemarker 1074. The base of the tree had been growing near the edge of a group of trees in a location 82 feet from the roadway and 75 to 100 feet north of a culvert maintained by DOT. The width of the roadway measured approximately 36 feet. Due to the snowy, wet conditions around the grassy terrain at the base of the tree, the tree's shallow root system failed. As a result of the fall, William Asnip, who was driving in the right lane, was killed and a vehicle owned by Croton Hardware, Inc. sustained property damage. Claimants contend that, while the tree showed no signs of decay, it posed an obvious danger of falling on the roadway due to its size, asymmetrical canopy, shallow root system, and location. Defendant maintains that the tree did not pose an obvious danger and that a closer inspection of the tree would not have indicated any likelihood of it falling. Specifically, defendant argues that a shallow root system was typical of trees in that area and that there was no evidence of an unbalanced canopy of any significant weight. The trial of these claims was bifurcated and this Decision pertains solely to the issue of liability.

John Clark, a civil engineer and contract administrator employed by the New York State Department of Transportation ("DOT"), testified that in 1996, he obtained information from the local residency regarding a tree removal contract for the Sprain. The initial project request was generated in March 1996. Clark explained that, when such contracts are let, only the tree size and quantity are detailed for bidding purposes. After the contract is awarded, a DOT inspector and the contractor meet on location and the specific trees are identified. The tree lists were prepared prior to September 20, 1996, but the contract was for work to be performed in the spring of 1997.

Keith O'Connor, a DOT Highway Maintenance Supervisor I, testified that in the summer of 1996 he was advised that DOT was preparing to let a contract for the removal of trees along the Sprain. He was directed to do a drive-by inspection for trees that were dead or leaning. During his inspection, O'Connor observed 80 to 120 foot trees leaning over the roadway (T:132-35).[1] In selecting the trees, O'Connor did not leave his car to conduct a closer inspection (T:136). Based upon his observations, O'Connor prepared a handwritten list for his supervisor. All of the trees slated for removal were live and, as O'Connor explained, were chosen because they were leaning toward the road. The list was rewritten, grouping trees by size, and then typed and formatted by location in a memorandum dated September 20, 1996 (Exs. 17, 18). The memorandum noted:

[a]ll trees on this list are not dead. Some are diseased; some are potentially dangerous. The possibility of them falling on the roadways is fairly good


(Ex. 17).

Four trees were identified on the southbound Sprain, at milemarker 1074, one quarter mile north of Jackson Avenue, "at blacktop shoulder leaning-3 more near this" (Ex. 17). O'Connor identified the blacktop shoulder as depicted in DOT photologs 68 and 70 (Ex. E). O'Connor, who had been at the accident site on December 6, 1996, recalled that the tree in issue was not near the blacktop shoulder, but rather was near a cable guiderail depicted in photologs 61 and 62 (Ex. E). The distance between the two locations was 500 feet. Additionally, the trees at milemarker 1074 were not described as located 80 feet from the road.

James Camurro, a DOT Highway Maintenance Supervisor II for DOT, testified that he conducted drive-by inspections of trees along the Sprain and looked for trees that were either dead or leaning. On July 13, 1996, Camurro was part of a crew that cleared debris from three trees that had fallen on the Sprain approximately one half mile north of Jackson Avenue (Ex. 7). Camurro's job duties also included maintaining the culverts. He noted that there was a culvert near the accident site.

John Hickey, a certified arborist, provided expert testimony on behalf of claimant. He noted that the fallen tree had been growing on the edge of a forest. There was a steep slope behind the tree and the east side of the tree grew more rapidly toward the sunlight because of the clearing on that side. Hickey described the tree as an edge-like tree which grew vigorously up and out toward the sunlight, resulting in a full canopy on the east side of the tree.

Hickey conceded that, prior to the accident, the tree was alive and showed no signs of decay (T:408, 413). He attributed the tree's failure to the wet weather which saturated the ground around the tree's shallow root system, the slope of the land to the west, the asymmetrical canopy[2] with most of its weight to the east and the combination of wind and the snow caused the tree to topple.

In Hickey's view, drive-by inspections were "probably not" adequate because they do not assess the general terrain around the tree, i.e., its proximity to a rock ledge, the culvert, and the road; nor does it include an evaluation of the tree's trunk and root system (T:357). Hickey maintained that closer inspections should be performed at least once a year and more often where there is a history of fallen trees. He also stated that all trees of a height that could fall on the roadway should be inspected (T:413). Hickey opined that a closer inspection of the tree would have revealed the weight and mass as a potential for it falling on the roadway.

Hickey conceded that an inspection of the tree prior to the accident would not have revealed any rot or decay and that not all leaning trees or trees of a height which would reach the roadway in the event of a fall should be removed (T:413-4). In his opinion, however, pruning the canopy was not a viable option to the danger posed by the tree. Rather, the only appropriate corrective action was removal of the tree before it uprooted.

Louis Bloch, a certified arborist, provided expert testimony on behalf of defendant. He testified that the tree appeared healthy and that its fall was unpredictable. He noted that the photographs showed no signs of decay or rot and that "the roots sticking up in the air had the appearance of healthy roots" (T:442). He continued, "[t]here would have been no reason to have this tree removed" prior to the accident (T:443). He maintained that the tree's fall was due to its shallow root system in light of the saturated soil and the weight of the sleet and snow on the tree's limbs. He further stated that the shallow root system found in the subject tree is "typical of other trees found in that general location" (T:499). There was no particular anomaly to this tree. Block opined:

if somebody was to make an additional inspection of that tree, they would not have considered this tree to be a dangerous tree. So *** I think the accident would have happened anyway


(T:473-74). Bloch stated:

my opinion is that you can't control storm damage. When there's storms, there's going to be damage. Trees are going to go over in storms. There's no such thing as a tree that's safe.


(T:471-72).

He maintained that drive-by inspections are standard procedure and that a closer inspection is warranted only upon observation of apparent decay. He further stated that it was unreasonable to perform walk throughs on thousands of miles of highway.

Bloch disagreed with Hickey's opinion that the tree's location at the edge of the woods was a contributing factor to its failure and that an unstable canopy contributed to the tree's fall (T:444). Bloch noted that there was no proof of the existence of an unbalanced canopy and that, in any event, the canopy, the top one third of the tree, was not of an excessive weight given the thickness of the tree's trunk, the bottom two thirds of the tree (T:447, 481-82). He also noted that the tree was "straight" and "solid" and "did not taper much," meaning its diameter was the same nearly half way up the tree, toward the top (T:479, 485). He stated that the canopy was "[t]he lightest part of this tree" (T:461). Bloch also testified that, contrary to Hickey's opinion, "the shallow roots have nothing to do with the rock ledge" (T:457). Bloch explained:

[t]he water would tend to make a tree a shallow root system. As Mr. Hickey pointed out, as a general rule of thumb, 90 percent of the roots of a tree are in the top 18 inches anyway. All trees have a shallow root system, but because they need oxygen, and when there's water there, they stay near the top


(T:458). He further explained that the presence of water in the area caused the tree to maintain a shallow root system, not unlike other trees in that area (T:459).

It is well settled that the State has a duty to maintain its roadways in a reasonably safe condition and that duty extends to trees adjacent to the roadway which could reasonably be expected to result in injury or damage to the users of the roadways (see, Harris v Village of East Hills, 41 NY2d 446; Guido v State of New York, 248 AD2d 592). The duty to "properly inspect and correct [the potential danger] by trimming or removal is essential to proper maintenance" of trees by the State (Edgett v State of New York, 7 AD2d 570, 574). Liability, however, does not attach unless the State had actual or constructive notice of the potentially dangerous condition and then failed to take reasonable measures to correct the condition (see, Leach v Town of Yorktown, 251 AD2d 630). "In order to constitute constructive notice, a ‘dangerous condition must have been visible and apparent and must have existed for a sufficient length of time prior to the accident to permit [the] defendant's employees to discover and remedy it'" (citation omitted)(Fowle v State of New York, supra, 187 AD2d 698, 699).

A municipality does not have constructive notice simply because a tree is leaning. A municipality is on notice to make a close inspection only when it is determined that a tree is "hanging precariously" over the roadway(Guido v State of New York, 248 AD2d 592, 670, NYS2d 524) or "leaning precariously toward the [roadway]" (Fowle v State of New York, 187 AD2d 698, 699, 590 NYS2d 280)


(Quog v Town of Brookhaven, 273 AD2d 287, 288).

In the instant case, there is no evidence indicating that the particular tree in issue posed any noticeable danger from the roadway, i.e., that it was leaning precariously over the Sprain.[3] O'Connor testified that during his drive-by inspection, he observed 80 to 120 foot trees leaning over the roadway (T:132-35). Trooper Bailey, who responded to the accident site, testified that "[a]ll trees in that area [the accident site] were pretty tall trees" (T:28). "They were all around *** near the same size as this [the fallen] tree" (T:28). While claimant's expert testified that this particular tree had an unbalanced canopy which contributed to the fall, he was unable to point to any proof to support this assertion. Indeed, defendant's expert effectively refuted the claims of claimant's expert. Significantly, defendant's expert pointed to the thickness of the bottom two thirds of the tree and noted that the tree's canopy, which comprised the top one third of the tree, was the "lightest part of the tree" (T:461). He also stated that the tree was "solid" and its trunk "did not taper much" (T:479, 485).

It is undisputed that the tree was alive and showed no signs of rot or decay (see, Berkshire Mut. Fire Ins. Co. v State of New York, 9 AD2d 555 [no evidence of actual or constructive notice where tree was alive and observation of tree would not have indicated it was a danger]). As in Harris v Village of East Hills, 41 NY2d 446, supra at 450, "[t]he evidence produced at trial indicated that the tree was not in such a patently defective condition as would or should have put [one] inspecting the roadway on notice of the potentially dangerous interior condition of the tree." Similarly, in Quog v Town of Brookhaven, supra, the Second Department held, "[w]here there is no evidence that the tree trunk showed any visible, outward signs of decay prior to the accident, it cannot be said that the municipality had constructive notice of a defect" (Id. At 289). Thus, this Court finds that defendant had neither actual nor constructive notice of the tree's potential danger of falling on the roadway.

In Fowle v State of New York, supra, a double-leader tree, located 28 feet from the edge of the Saw Mill River Parkway on an eight to ten foot embankment, was plainly visible from the roadway. The Second Department held that:

the trial evidence established that, from the parkway, the tree appeared to be healthy, notwithstanding its peculiar, although not unique, structure. Only a close inspection could have revealed that the core of the twin tulip tree was decayed, rotted, and infested with carpenter ants. However, the claimants failed to establish that the State's inspection procedures as to trees adjacent to the Saw Mill River Parkway – which included viewing the trees while driving past them, and looking for apparent defects (e.g., dead or decayed trees; trees leaning precariously toward the parkway; or storm-damaged or uprooted trees) – were unreasonable or departed from the standard of reasonable care.


(Fowle v State of New York, at 699). So too here, claimants have failed to establish that defendant's inspection departed from the standard of reasonable care (cf., Guido v State of New York, supra, where several months prior to the accident, the roadway was photographed as part of a routine State inspection and the tree's deteriorated condition was evident from the photograph). While claimant's expert testified that a drive-by inspection was "probably not" adequate (T:357), defendant's expert refuted such assertion by explaining that a closer inspection would not have resulted in this tree's removal because "looking at this tree would have showed no signs of any impending failure" (T:442) (see, Ivancic v Olmstead, 66 NY2d 349, 351-52 [even if tree had been inspected, there was no evidence that an inspection would have given notice of any defective condition or potential danger]). Similarly, in Leach v Town of Yorktown, supra, a limbless tree with a hollow center, fell across roadway and the Second Department held that there was no showing of constructive notice because "there is no evidence that the tree trunk showed any visible, outward signs of decay prior to the accident" (Id. At 631). In the instant case, defendant's expert testified that the tree appeared healthy and there was no particular anomaly to this tree. He further stated that the shallow root system was "typical of other trees found in that general location" (T:499) and that, "if somebody was to make an additional inspection of that tree, they would not have considered this tree to be a dangerous tree" (T:473-74). He opined that, "[t]here would have been no reason to have this tree removed" prior to the accident (T:443).

The Court agrees with defendant's expert that it would be unreasonable to require walk-by inspections on thousands of miles of highway. The Court finds that defendant's proximity to the tree did not put it on notice of the tree's danger of falling and that, even if a close inspection had been conducted, "it would not have revealed the defect that was the proximate cause of the tree falling, i.e., the lack of an adequate root system" (Quog v Town of Brookhaven, supra at 288).

Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NOS. 97281 AND 97517.

September 19, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] All references to the trial transcript are preceded by the letter "T."
[2] On cross-examination, however, Hickey was unable to adequately demonstrate, by use of the photographs in evidence, his claim of an asymmetrical canopy (T:391-96). Nor could Hickey adequately demonstrate, by use of the photographs, how he determined the direction of growth of the canopy (T:428).
[3] Nor does this Court find that the tree in issue was part of the group identified in the contract for removal prior to the accident.