New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2001-019-023, Claim No. 98975


Claim dismissed; Claimant failed to establish a prima facie case of negligence by the State in design, construction, and or maintenance of roadway, adjacent shoulder and/or drainage ditch.

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:
McMAHON, KUBLICK, McGINTY & SMITH, P.C.BY: Jennifer Gale Smith, Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 21, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Donna J. Williams, commenced this action seeking damages for injuries she sustained on December 10, 1996, when a car she was driving veered off the westbound lane of New York State Route 7 (hereinafter "Route 7"), in Otsego County, into an adjacent drainage ditch and crashed head-on into a tree approximately 100 feet west of the point of her vehicle's departure from the paved portion of the roadway. Claimant alleges that this accident resulted from the negligent failure of the State of New York (hereinafter "State") to properly design, construct, and maintain the roadway, adjacent shoulder, and drainage ditch. The trial of this matter was held in the Binghamton District on May 21, 2001, and this Decision addresses the issue of liability only.

On December 10, 1996, at approximately 11:27 a.m., Donna J. Williams, age 55, a Clinical Professor of Psychology and Statistics was on her way to work at the State University College at Oneonta. Claimant was driving a 1995 Ford Probe in a westerly direction on Route 7, approximately 3/10th of a mile east of its intersection with County Route 35. The speed limit on Route 7 was 55 miles per hour. The Claimant estimated her speed to be anywhere between 50 and 55 miles per hour. At trial, Claimant testified that she momentarily took her eyes off the road to confirm the presence of her DayTimer on the passenger seat of her vehicle. However, the first trooper to arrive at the accident scene, Trooper Timothy Pidgeon, indicated that in his conversation with the Claimant immediately after the accident she stated that she was reaching for the DayTimer which was located on the passenger's side floor of her vehicle. The Trooper noted the same on the New York State Police Accident Report. (Cl. Ex. 2).

In any event, Claimant was, by her own admission, momentarily distracted and took her eyes off the roadway which resulted in her vehicle veering to the right and driving off the roadway and into the adjacent drainage ditch. Claimant could not recover control of her vehicle and traveled approximately 100 feet in the ditch, striking a tree almost head-on which caused the vehicle to spin slightly more than 180
where it ultimately came to rest in the ditch area adjacent to the roadway. As a result of the accident and its aftermath, Claimant sustained severe injury to her right foot and leg resulting in amputation of the leg below the knee and also head trauma which has resulted in some loss of cognitive function.

At the site of the accident, Route 7 is a two-lane State highway relatively straight and level, and traveling generally in an east/west direction. The total roadway paved surface area is approximately 30 feet in width, consisting of two 12 foot driving lanes in each direction with corresponding shoulders of 2 to 3 feet in width. A solid double yellow line separates the eastbound from the westbound traffic and white pavement edge or fog lines delineate each travel lane from its adjacent shoulder.

While the 1928 plans for this roadway's construction called for two 10 foot travel lanes, with 5 foot adjacent shoulders for a total paved area of 30 feet, in 1952 the travel lanes were widened to 12 feet, resulting in the adjoining shoulders being reduced to 3 feet in width. It appears that this was accomplished after repaving by simply adjusting the placement of the roadway edge or fog lines by 2 feet further to the north or south respectively. In reality, however, the total width of paved and improved roadway remained the same between 1928 and 1952 – namely 30 feet. While the road has been resurfaced several times since 1952, the most recent being completed in 1995, its total width has remained the same.

At the accident site there is a drainage ditch adjacent to the shoulder approximately 2 to 3 feet deep which appears to be nothing more than a rough cut channel in the bare earth. Except for a drainage sluice pipe running under a driveway 100 feet east of the point where the Claimant's vehicle came to rest, the ditch is neither improved, paved, or built up in any manner. It is simply a rough cut excavation into the earth to a depth of approximately 2 to 3 feet below the grade of the shoulder and roadway surface. Approximately 100 feet to the east and 100 feet to the west of the point where the Claimant's vehicle came to rest, there are only uncut and unimproved gullies and swales approximately a foot below the shoulder and roadway surface which are provided and present for drainage. There are, however, four small rectangular yellow signs posted at the shoulder's edge of the driveway culvert placed at intervals of approximately 30 feet thereafter as one proceeds westbound on Route 7, presumably to alert drivers not only to the presence of the driveway and culvert, but also to the edge of the shoulder and the corresponding sharp drop-off of the adjacent ditch.

At trial Claimant called engineering expert James Napolean who testified that after multiple resurfacing of the 1928 roadway in 1952, 1969, 1984 and 1995, the near vertical drop-off between the roadway and the adjacent ditch where the accident occurred was further exaggerated. He opined that the slope of the ditch is greater than what the 1928 construction plans called for (a slope of 1 x1 ½ ) and that this is greater than the slope permitted or called for in the State's highway design manual. Mr. Napolean opined that the current slope of 1 x 4
clearly equates to a hazard, and therefore concluded that this road was not constructed and/or maintained properly by the State. He further testified that the pattern of runoff accidents at or near this site put the State on notice of the hazard posed by the adjacent ditch. It was Mr. Napolean's opinion that the swale located to the east and west of the accident scene could and should have been maintained at this site as well and would have alleviated the hazardous near vertical drop-off. Mr. Napolean testified had a simple swale been in place at this location, that this would have allowed Claimant greater control of her vehicle after she left the roadway.

It is well settled that the State has the duty to maintain its roads and highways in a reasonably safe condition and that failure to do so will result in liability to
the State for injuries resulting from a breach of that duty. (Friedman v State of New York, 67 NY2d 271). The mere occurrence of an accident on a State roadway does not infer liability as Courts have consistently held that the State is not an insurer of the safety of its roadways. (Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). The State has fulfilled its duty to the traveling public when a highway is reasonably safe for those who obey the rules of the road, notwithstanding that almost any road can be made safer. (Tomassi v Town of Union, supra, 46 NY2d, at 97). Claimant has the burden of establishing that defendant was negligent and that such negligence was a proximate cause of the accident. (Bernstein v City of New York, 69 NY2d 1020, 1021-1022). Liability will not attach unless the State had actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition. (Rinaldi v State of New York, 49 AD2d 361). Proof of actual or constructive notice will not be required if the State created the hazardous condition. (Matter of Rouse v State of New York, 97 AD2d 962).

Claimant endeavors to define this case outside the scope of
Tomassi and its progeny by arguing that this unpaved, unimproved ditch should fall within the same sphere as a paved shoulder of a public highway and therefore within the area of a roadway falling within the State's area of responsibility. However, unlike the cases cited by Claimant, there is nothing on these facts which, under any circumstances the Court can envision, would lead a driver to believe that travel was either invited or possible in the unimproved adjacent drainage ditch which was clearly marked by the rectangular reflective warning signs posted and readily apparent at intervals commencing at the culvert and continuing along the ditch itself. Moreover, the Court is satisfied from the testimony of the State's expert, Richard R. Church, that even though the original plans called for a ditch at this location to be 2 feet in depth with side slope ratios of 1 vertical to 1 ½ horizontal the plans did contain a note stating that, "The width and depth of the ditch and shoulder on the section may be varied as ordered by the Engineer." (St. Ex. B, pp 14 & 15). Church testified that even though the depth, fore slope, and back slope dimensions were shown in the 1928/1929 contract, the engineer in charge apparently used the authority given him to make changes as needed so that all ditches fit field conditions as they are encountered to assure that the ditches would drain properly to the outlets. From the elevations at the scene, it appears that the swales located both to the east and west of the ditch in question flow and drain directly into this deeper drainage ditch. Moreover, field drains and other drainage from the adjacent landscape drain directly into this ditch which appears to contain water at almost all times. Mr. Church's testimony was echoed by Duane Mayo, New York State Department of Transportation Resident Engineer for Otsego County, who testified that the engineer in charge is given the flexibility of adjusting the ditch grade and ditch elevations to match existing culverts and field conditions as they are encountered during construction. The Court concurs and believes that field conditions warranted a slightly deeper drainage ditch at the accident site than the swales located to the east and west of the same.

Additionally, the Court does not share the conclusion of Mr. Napoleon that Claimant could have recovered control of her vehicle and returned to the roadway had she driven into one of those swales located to either the east or west of this drainage ditch. To the contrary, the Court finds from the photographs and the video tape submitted at trial that there is still such a substantial drop-off between the roadway and these swales that recovery of vehicle control and stopping safely after driving into a swale is nothing more than speculation. (Cl. Exs. 9, 10, 11, 18, and 24).
The Court, therefore, cannot conclude that this unimproved ditch constituted a dangerous condition. As the Court of Appeals stated in Tomassi, "[c]ertain 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 [citations omitted]." (Tomassi v Town of Union, supra, 46 NY2d, at 97-98; Rager/Lehner v State of New York, Ct Cl., December 7, 2000, Read, P.J., Claim No. 98606). That to hold otherwise, would make the State an insurer of its highways and impose upon the State a duty not contemplated nor required by law. (Tomassi v Town of Union, supra, 46 NY2d 91).

Even assuming, arguendo, this Court were to deem this ditch to be a dangerous condition, Claimant's remaining arguments are without merit. For instance, on the issue of notice, Claimant asserts that the State had either actual or constructive notice of this condition resulting from an inordinately high accident history at this location. By way of the in-depth cross-examination of Mr. Napolean by the Assistant Attorney General, the Court is satisfied that there occurred no accidents of the same or similar nature at the location of the Claimant's tragic mishap from which the Court could impute to the State the requisite notice of defect. (Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 336; Bostic v State of New York, 232 AD2d 837).

Similarly, Claimant also failed to establish proximate cause. Claimant contends that the numerous repavings of the roadway and the repainting and widening of the driving lanes were each a proximate cause of this accident. With regard to the widening of the travel lanes, the Court is satisfied that the traversable driving surface of this roadway remained the same whether the driving lane was ten feet wide with a five-foot shoulder or twelve foot wide with a three foot shoulder. Additionally, while the drop-off of this unimproved drainage ditch may have increased slightly in elevation due to the numerous repavings, the Court finds nothing on this record which would lead this Claimant to believe, had she been watching the roadway, that travel off the paved shoulder was remotely possible; even absent the additional elevation attributable to the repavings. As such, neither of these contentions can be viewed as a proximate cause of this accident. Based on the record before the Court it is clear that the existence and location of this drainage ditch – alone or in tandem – were not a proximate cause of the Claimant's accident.

In short, there is nothing this Court finds about the construction and/or maintenance of the travel portion of the highway and its adjacent shoulder which can be shown to have caused Claimant's vehicle to leave the safety of the driving lane and enter the unimproved ditch. (
Rager/Lehner v State of New York, supra, Ct Cl., December 7, 2000, Read, P.J., Claim No. 98606; Russo v State of New York, Ct Cl., April 26, 2001, Patti, J., Claim No. 96902). Tragic as the results of this accident have been to Claimant, Ms. Williams' car left the traveled portion of the roadway due to her own inattention whether momentary as Claimant testified at trial or, as the Court finds more credible, because she was reaching for her DayTimer which was located on the passenger's side floor of her vehicle. (Cl. Ex. 2).

In sum, the Claimant has failed to establish this accident was proximately caused in any way by the negligence of the State and therefore there is no basis for the imposition of liability against the State. Claim No. 98975 is hereby DISMISSED. Any motions not previously addressed are hereby denied.


December 21, 2001
Binghamton, New York

Judge of the Court of Claims