This Claim arises out of an incident that took place on September 16, 1997, at
approximately 8:30 a.m., when a 1989 Freightliner Red E Mix concrete truck
registered to the Claimant, Cobleskill Red E Mix, was involved in an accident on
State Route 10 in the Town of Harpersfield, Delaware County. The unified trial
of this Claim took place on March 5 and 6, 2001, in the Binghamton District. At
trial, the parties stipulated that the property damage sustained by the Claimant
totaled $32,908.60. Consequently, the balance of this Decision will address the
issue of liability only.
At trial Claimant established that at the time of the accident State Route 10
was being repaved pursuant to State Contract # D255308 between the State and
Lancaster Development, Inc. On the morning of September 16, 1997, at
approximately 8:30 a.m., Claimant's concrete truck was being operated by its
employee, William Shafer, Jr., who was traveling in a southerly direction on
Route 10, which is a two-lane State route traveling in a north/south direction,
on his way to make a customer delivery of concrete.
Mr. Shafer had entered Route 10 where it intersects with Route 25 in the Town
of Harpersfield. He was directed by a flagman at that intersection to the right
side of cones placed approximately 12 to 15 inches to the right of the center
line of the highway as the Claimant's truck proceeded in southbound direction on
Route 10. The northbound lane of Route 10 at that time was being remilled and
worked on in preparation for repavement. The total width of the northbound and
southbound lanes of the roadway at this location was approximately 28 feet,
consisting of an11 foot driving lane with a 3-foot shoulder in each direction.
Since the cones were placed slightly to the right of the center line by
approximately 12 to 15 inches the remaining width of the southbound driving lane
was approximately 10 feet, with a 3-foot shoulder. Since the southbound lane
had just been paved with a binder course, no fog lines or road markings were
visible. Consequently, it was impossible for a driver to determine where the
driving lane ended and the shoulder began. However, there was at least
approximately 10 feet of driving lane and a 3-foot shoulder available for use,
taking into account the location of the construction cones.
After traveling approximately 1 mile on Route 10, Mr. Shafer testified that the
shoulder of the roadway underneath the right rear wheels of his vehicle "began
to give way".
This resulted in Mr. Shafer losing control of Claimant's vehicle which then left
the roadway and overturned in an adjacent ditch sustaining extensive damage to
the engine, cab, frame, and mixer. However, on cross-examination of Mr. Shafer,
the State established that there was more than sufficient room for Claimant's
vehicle, which was only approximately 8 feet wide, to travel this southbound
lane without incident. Moreover, the State's cross-examination implied that
either inattentiveness or driver error caused the vehicle to drive off the
shoulder and into the ditch, resulting in the vehicle flipping and sustaining
Claimant also called Matthew McDonald who is the Environmental Health and
Safety Director for Claimant's parent company, Cranesville Block Company. Mr.
McDonald has a Bachelor's Degree in both highway and commercial safety. Mr.
McDonald testified that he visited the accident site on Route 10 on the date of
the accident and spoke with various personnel. His inspection of the site
showed some material and asphalt loosened at the right-hand shoulder of the
roadway, indicating that the shoulder may have given way, contributing to the
rolling of Claimant's vehicle.
On cross-examination Mr. McDonald was shown one of his own photographs,
Claimant's Exhibit 38. This photo clearly shows the front right wheel of
Claimant's vehicle left the roadway well in advance of the shoulder giving way,
with corresponding gouges being made by the right rear wheels of the cement
truck as they subsequently left the roadway.
Claimant also called William Mason who was the New York State Department of
Transportation (hereinafter "DOT") Engineer in Charge on the State Route 10
repavement project on the date of this accident. On September 16, 1997, Mr.
Mason was called to the scene of this accident and acknowledged that upon
arrival he noticed Claimant's vehicle lying in a ditch. Mr. Mason testified
that the asphalt was not complete since two more courses of pavement were
required. More specifically, he noted that there was a 3 ½ to 4 inch
recycled base course on the roadway and that a 1 ½ inch binder and a 1
½ inch topcoat were yet to be applied. However, the roadway did have 8
inches of concrete pavement and asphalt as a bottom layer or sub-base. Mr.
Mason's attention was directed to the contract proposal (Cl. Ex. 39),
specifically Section 127 regarding work zone shoulder maintenance and the DOT
Guidelines regarding shoulder maintenance during repavement and construction.
While those sections of the contract proposal were pointed out by the witness,
no further testimony or evidence was offered by Claimant establishing a
violation of those shoulder maintenance standards by the defendant.
On cross-examination, Mr. Mason acknowledged that at the scene of the accident
there was at least 9 to 10 feet of driving lane available to the right-hand side
of the cones. Furthermore, it was this engineer's opinion, based upon his daily
investigation and review, that Lancaster Development, Inc. was in compliance
with all DOT standards for shoulder maintenance required under this contract, as
well as New York State sign standards required under the Manual of Uniform
Traffic and Control Devices as the same pertained to construction sites.
The Claimant rested. The State then moved to dismiss the Claim based upon a
failure of Claimant to establish a prima facie case. The Court will now address
the State's motion to dismiss, upon which it reserved at trial.
It is well established that the State has a duty to construct and maintain its
highways in a reasonably safe condition. (
Friedman v State of New York
, 67 NY2d 271, 283). This duty has been held
to include the duty to "[m]aintain the shoulder in a reasonably safe condition
for the foreseeable uses of it." (Bottalico v State of New York
, 59 NY2d
302, 305). However, the State is not an insurer of the safety of its roadways,
and the mere happening of an accident on a State roadway does not render the
State liable. (Tomassi v Town of Union
, 46 NY2d 91, 98). Moreover,
before liability can be imposed upon the State for failure to maintain and
construct its highways in a reasonably safe condition, Claimant must establish
that the State had actual and/or constructive notice of a dangerous condition
which it failed to remedy and which was a proximate cause of the accident.
(D'Alessio v State of New York
, 147 AD2d 791,
In the instant case, Claimant alleges that the State either created this
hazardous condition of a weak shoulder on the roadway or, at the very least, had
notice of its existence and failed to adequately warn motorists of the potential
danger created by this weak shoulder. However, in this Court's view, Claimant
has failed to establish its claim by a preponderance of the evidence and
therefore has failed to meet its burden of establishing a prima facie case for
the reasons set forth below.
The testimony at trial reveals only that Claimant's employee, Mr. Shafer, was
driving a truck approximately 8 feet in width on a State highway which was under
construction, but which still had a sufficient width remaining to allow his
vehicle to pass with at least 2 feet on either side. Moreover, the photographic
evidence submitted at trial tends to show that Claimant's vehicle drifted much
farther to the right than necessary to negotiate past the construction cones
that were up and in place at the site. Moreover, those photographs tend to also
establish that the front wheels of Claimant's vehicle drove into the ditch well
in advance of the rear wheels and well in advance of any damage to the shoulder
of the roadway. This indicates to the Court that it was the vehicle itself
which was accidently driven into the ditch as opposed to unwillingly drifting
into the ditch as a result of a collapse of the shoulder under its rear wheels.
Moreover, the uncontroverted testimony of Mr. Mason, the engineer in charge,
establishes that, based upon his inspections, the roadway was sufficiently wide
for this vehicle to safely pass and sufficiently strong to support its load.
Moreover, Mr. Mason remained steadfast that
this contract was being performed by Lancaster Development, Inc. in full
compliance with shoulder maintenance as well as all signage requirements.
Based on the foregoing the Court is not satisfied that this accident was caused
as a result of a hazardous or dangerous condition which existed at the accident
site. Rather, the Court believes that this accident was caused as a result of
driver error or inattentiveness. However, even if the Court were to find
otherwise, and conclude from these facts that this accident occurred as a result
of shoulder failure at this location, there is nothing in this record to
establish that the State either created that hazardous condition or had actual
or constructive notice of the same. Absent that, there is no way the State can
be found liable for failure to warn of, or remedy, a defect of which it had no
Based upon the foregoing, the State's motion to dismiss upon which the Court at
trial reserved, is hereby GRANTED and Claim No. 98935 is hereby DISMISSED.
ENTER JUDGMENT ACCORDINGLY.