New York State Court of Claims

New York State Court of Claims

RUSSO v. THE STATE OF NEW YORK, #2001-013-506, Claim No. 96902


Motorists alleged that injuries they sustained in one-vehicle collision with culvert head wall was caused by State's negligent failure to (1) install a guide rail between nine-foot wide shoulder and drainage ditch; and (2) replace a drainage ditch and head wall with a drop inlet. Alternatively, they argued that the State negligently failed to maintain guide posts. The claim is dismissed with a finding that the roadway and shoulder were adequate for safe passage and travel beyond those limits was not reasonably foreseeable.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: LOUIS J. TRIPOLI, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 26, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants Raymond and Tessie Russo allege that they sustained serious injuries when their car slammed into a culvert head wall. In their timely filed claim[1]
, they attribute their accident to the failure of the State of New York to erect guide rails or to make the area of the crash traversable by replacing the culvert with a drop inlet. Alternatively, they claim that the State of New York negligently failed to install or maintain guide posts contemplated by a 1953 construction project. The parties tried the claim before me on August 14, 2000.
The accident occurred on November 2, 1996, at approximately 9:15 p.m. at the intersection of State Route 20 and O'Connell Road in the Town of Lafayette (
Exhibit 97). Tessie Russo, who was driving Claimant's vehicle, was the only witness able to describe the events that preceded it. She testified that they were heading westbound on Route 20 in their 1985 Mercury sedan. It started to snow slightly as they entered Lafayette, so she activated the windshield wipers. They were proceeding down a hill, just east of O'Connell Road, when there was a "drastic"[2] change in the weather. Wet, heavy snow covered the windshield and stopped the vehicle's wipers in an upright position.
Mrs. Russo could not see the road in front of her. She activated the flashers and steered the vehicle to the right side of the road. Suddenly, her right tires "went over the edging" into a "gully." She tried, without success, to steer the car out of the gully, but found that the right wheels were trapped in the depression. She also tried to stop the vehicle by pumping its brakes, but the gully was slippery and the vehicle began to slide down the hill toward the intersection. It gradually tipped onto its side and came to a halt when it smashed into the concrete head wall.

Photographs and measurements taken by Claimants' son, Joseph Russo, reveal that the "gully" was a concrete-lined drainage ditch located next to a nine-foot wide shoulder which was paved and in good condition (Exhibits 6 and 11). The ditch ended at the head wall just east of O'Connell road. From there, water was diverted into an underground culvert that traversed underneath Route 20 to the south side of the road.

Much of the drainage ditch was gutter-like. But it became progressively deeper as it approached O'Connell Road (Exhibits 2, 23, 29, 30 and 33). Joseph Russo testified that the ditch was 42 inches deep at the head wall. The walls of the ditch also became more vertical. Some of Mr. Russo's photographs indicate that the ditch was bounded by vertical concrete walls for a distance of ten feet or more to the east of the head wall (Exhibits 2 and 23).

Claimants called Roy Cary to describe standards employed by the Department of Transportation for the design and construction of highways and drainage ditches. Since 1984, he has been employed by the Department of Transportation (DOT) as a Civil Engineer in Region III, which includes the Town of Lafayette. For a portion of his career, he supervised the region's culvert design team.

Mr. Cary testified that DOT standards call for highways to be bounded by a "clear zone" or recovery area -- an area next to the road where an errant vehicle can travel without encountering hazards or fixed objects. Ideally, the clear zone should be 30 feet wide on each side of the road, but it is often much smaller, especially so on rural roads.

In DOT parlance, Mr. Cary explained, a fixed object is anything that protrudes six inches or more above the existing ground. Hazards are objects of any shape or size that can damage a vehicle. A concrete head wall could be a hazard and, depending upon its height, a fixed object as well. Standards issued by the American Association of State Highway and Transportation Officials (AASHTO) suggest that guide rails "may" be appropriate when hazards or fixed objects such as head walls located near the road create "accident-prone situations" (Exhibit 28 at 242-243).

It is also important, Mr Cary testified, for clear zones to have traversable slopes. Under AASHTO standards in effect at times relevant to this case, traversable slopes were to have a grade of one on four[3]
or flatter, where practical, to help drivers regain control of their vehicles (Exhibit 28 at 242; Exhibit 102). DOT's Highway Design Manual (1972) provided that a one on two slope for ten feet or less was considered traversable.
One way of making drainage ditches traversable, Mr. Cary agreed, was to replace the open gutters with drop inlets. He concurred with AASHTO that where grades exceed one on four, and it is not economical to decrease the slope, designers should consider guide rails or guide posts (Exhibit 28 at 242; Exhibit 102). In this case, Mr. Cary said, the vertical side walls near the head wall had a slope of greater than one on two, but the slope of the gutter part of the drainage ditch (where, he said, Claimants' vehicle actually left the road) was less than one on two.

Based upon records and plans maintained by DOT, Mr. Cary was able to provide information about two relevant Route 20 rehabilitation projects that predated his employment. In the first project, which took place in 1953, State plans called for three guide posts to be "reset" in the "general location" of the O'Connell Road head wall (Exhibit 1A-1C
). However, Mr. Cary was not able to find any record indicating posts were actually installed, replaced or repaired between 1953 and the time of the collision. Nor did he or the drawings provide any information about the precise location of the guide posts or about the reason(s) that the use of guide posts was contemplated. But he testified that if guide posts deteriorate in the field, DOT's policy calls for them to be replaced or for any hazard they are supposed to guard to be corrected.
The second relevant reconstruction project took place in 1971. DOT replaced some of the open drainage ditches in the area with drop inlets, but did not modify the ditch at issue here. On the southern side of the road, across from the O'Connell Road intersection, it installed a 458-foot guide post and cable system. The State's line drawings from 1971 show other concrete gutters but not the drainage ditch and head wall in question here (Exhibit 104 at sheet 2). The drawings also called for the installation of guide rails next to several culverts but not next to the drainage ditch and culvert involved in Claimants' collision (Exhibit 104 at sheet 9). No evidence was presented as to the depth of those culverts, their proximity to the road or the accident histories of those other locations. With regard to the 1971 project, Mr. Cary found no traffic and safety surveys, IPP's[4]
, budgetary assessments, DOT memoranda, or other information that shed light on DOT's thought process. He found only line drawings for the project. However, he theorized that DOT installed the posts and cables on the south side of the road to prevent cars from descending a steep 30 to 40-foot embankment at the south side of Route 20.
In response to questioning from Defendant, Mr. Cary testified that the culvert was not high enough to constitute a fixed object. Although nine feet was within the optimal 30-foot clear zone, the shoulder next to the drainage ditch was sufficient to allow a driver to bring a vehicle under control and the gutter part of the ditch was traversable.

Deciding whether or not to install a guide rail, Mr. Cary explained, was a judgment call. DOT had to consider, among other factors, the type of hazard, its distance from and length alongside the road, the likelihood that an errant vehicle would enter the area, the history of accidents in the area, and whether the cost of the guide rail was justified by the danger presented. Defendant would also have to consider whether the guide rail would make the situation safer. Mr. Cary explained that guide rails pose their own dangers. In this case, a guide rail would have to be closer to the road than the head wall. It would be a fixed object on the shoulder of the road where no fixed object had previously existed. Unlike the head wall, it could be struck from vehicles proceeding in both directions.

Mr. Cary conceded that he had no idea whether Defendant had ever made a decision not to install a guide rail next to the drainage ditch or, if it made such a decision, whether it considered any of the factors he described.

Claimants' expert, George J. Triepel, Jr., is a traffic engineer who, during his 36 years of employment with Erie County, designed and oversaw the design of guide rails and guide post systems and drainage structures. He testified that under standards in place as early as 1940, guide posts or guide rails were to be used at intersections to protect vehicles from vertical drop-offs located within ten feet of the roadway. Alternatively, drainage ditch hazards could be reduced by replacing the open ditch with drop inlets and making the area traversable. The State's failure to employ any of these measures, Mr. Triepel believed, was a breach of its duty.

Mr. Triepel testified that the portion of the head wall and drainage ditch depicted in Exhibit 30 was a hazard or fixed object and that it was within the clear zone as defined by AASHTO. He opined that both the walled portion and the gutter portions of the drainage ditch were non-traversable. In his opinion, the non-traversable nature of these areas and the absence of guide posts or guide rails were causes of the accident.

Based upon his knowledge of DOT construction practices, he believed that the guide posts that DOT "reset" in 1953 would have been wooden guideposts. At a minimum, they would have been located at each end and at the corner of the L-shaped head wall and vertical side wall. But the State policy and practice in 1953, he believed, would have called for it to install guide posts from the head wall east along the drainage ditch gutter to a point where the drop-off was five and one-half inches or less -- even if the slope was one on two or less. He did not state whether such guide posts would have been strong enough to stop an errant vehicle headed for the drainage ditch. Nor did he indicate that a collision with a guide post would have been less injurious than a collision with the head wall.

Once the State decided to install guide posts, Mr. Triepel said, it had a duty to maintain them or to eliminate the hazard. Assuming the State allowed the guide posts to deteriorate and disappear between 1953 and 1971, it failed to maintain the roadway in a reasonably safe condition. DOT could have eliminated the hazard in 1971, Mr. Triepel believed, by replacing the drainage ditch and head wall with a drop inlet. This, he said, would have cost a few hundred dollars.

On cross-examination, Mr. Triepel agreed that the decision to install a guide rail involves the exercise of engineering judgment, that guide rails can increase the hazard if hitting them is more dangerous than hitting what lies behind them and that coming to a sudden stop may be more hazardous than letting the vehicle decelerate down a slope. But under the circumstances, he felt that a guide rail would have been safer because it would have redirected the vehicle and avoided an abrupt collision or drop-off.

The State has a duty to construct and maintain its highways in a reasonably safe condition (
Matter of Kirisits v State of New York, 107 AD2d 156). It must use reasonable care in its construction and maintenance of any shoulders it provides for emergency use (see, Stiuso v City of New York, 87 NY2d 889, 891; Bottalico v State of New York, 59 NY2d 302, 305-306; Pontello v County of Onondaga, 94 AD2d 427, lv dismissed 60 NY2d 560). It must, where circumstances warrant, protect motorists from culverts and other foreseeable hazards located immediately adjacent to the shoulder (see, Stiuso v City of New York, supra; compare, Terwilliger v State of New York, 96 AD2d 688, lv denied 60 NY2d 558 [State liable for accident caused by culvert and head wall located in "unnecessary proximity" to shoulder] with Muller v State of New York, 240 AD2d 881 [State had no duty to protect motorist from culvert located "well beyond" the shoulder]). And, where appropriate, it must erect and maintain guide rails (Colegrove v County of Steuben, 216 AD2d 888). "[W]hen the State is made aware of a dangerous highway condition and does not take action to remedy it, the State can be held liable for resulting injuries" (Ernest v Red Creek Central School Dist., 93 NY 2d 664, 673, reargument denied 93 NY2d 1042; Friedman v State of New York, 67 NY2d 271, 286).
However, the State is not an insurer of the safety of motorists, and negligence cannot be inferred from the mere happening of an accident (
Edwards v State of New York, 269 AD2d 863; Hamilton v State of New York, ____ AD2d ____, 716 NYS2d 529, 530, lv denied 2001 NY LEXIS 171). To prevail, a claimant must prove that injuries he or she sustained were proximately caused by the State's negligence (see, Hamilton v State of New York, supra; Edwards v State of New York, supra). In assessing whether the State was negligent, one must bear in mind that certain risks are unavoidable and that objects such as drainage ditches and culverts are often located in close proximity to the traveled way, but nevertheless pose no unreasonable danger for drivers who exercise reasonable care (Tomassi v Town of Union, 46 NY2d 91).
In this case, I was not persuaded that Claimants' accident and their resulting injuries were proximately caused by negligence on the part of the Defendant. The evidence satisfied me that the paved roadway and the nine-foot wide shoulder were more than adequate for safe passage and that travel beyond those limits was neither contemplated nor foreseeable (
Tomassi v Town of Union, supra; Guy v Rochester Gas and Electric Corp., 168 AD2d 965, lv denied, 77 NY2d 808; Adamy v Ziriakus, 199 AD2d 1018, lv denied 83 NY2d 755; Warren v New York Telephone Co. 238 AD2d 961, lv denied 91 NY2d 805). There was no proof that there had been an unusual number of accidents in the vicinity of the drainage ditch or that the physical layout of the roadway made it particularly likely that the drainage ditch would cause or contribute to accidents. It is probably true that Claimants' vehicle never would have encountered the drainage ditch had a guide rail been erected along the entire length of the shoulder. It is certainly true that there would have been no head wall collision if the ditch had been replaced with a drop inlet. But the photographs demonstrate that the drainage ditch and head wall were both visible and apparent to motorists. For attentive motorists, the placement of these utilities adjacent to the nine-foot wide shoulder created no unreasonable danger even though they were not protected by a guide rail (see, Tomassi v Town of Union, supra).
Of course, this case presented a highly unusual situation, one where a motorist was suddenly deprived of the ability to see what was readily observable because of an unforeseen mechanical failure and a drastic change in the weather. Under the circumstances, it is difficult to fault Mrs. Russo for losing sight of the roadway, for pulling to the side of the road, or for misjudging the shoulder and ending up in the gutter. But it is also clear that the State of New York had no way to reasonably foresee or anticipate that this locale would be the site of the sudden confluence of events that precipitated Claimants' accident. To hold the State of New York responsible for a failing to anticipate those events and for failing to erect a guide rail to prevent injury, would, in effect transform it into an insurer (
see, Tomassi v Town of Union, 46 NY2d 91, supra). To impute to it a duty to foresee that such incidents might occur anywhere on its roadways, would effectively oblige it to place guide rails or drop inlets in every place where a drainage ditch, a hazard or a fixed object lay just beyond the perimeter of the shoulder, no matter how visible and avoidable they would ordinarily be. This would be an unreasonable and cost prohibitive burden. The law does not support its imposition.
The claim is dismissed.


April 26, 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]The claim recites that Claimants served their notice of intention on February 19, 1997, which, if true, would mean that the claim was untimely (see, Court of Claims Act §10[3]). But Claimants' counsel has submitted proof that a notice of intention was served on January 30, 1997, within the time required by the Court of Claims Act (id.) (see also, March 3, 2000 letter to Ed Thompson Esq. and Edward G. Case).
  2. [2]All quotations are from the Court's trial notes unless otherwise stated.
  3. [3]In a one on four slope, the ground drops one foot for every four feet traversed. It should be noted that the parties sometimes used the term "four on one" to describe a one on four slope.
  4. [4]An IPP is an Initial Project Proposal.