New York State Court of Claims

New York State Court of Claims

MILLIS v. THE STATE OF NEW YORK, #2002-005-021, Claim No. 91107


While the evidence does not support allegations that Claimant drove over a pothole or depression on the right-of-way, the Court held that the State is not responsible for maintenance of the roadway beyond the paved travel lanes and beyond the shoulder, in the State's right-of-way.

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:
Paul William Beltz, PCBy: Craig R. Watson, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 6, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

alleges that he suffered personal injury when his vehicle struck two potholes, which caused his vehicle to suddenly "jar downward and then jar up." He asserts that the Defendant is answerable in damages due to its improper and inadequate maintenance, repair and upkeep of the roadway, with particular reference to the creation of a hole(s) in the roadway or pavement and also in its failure to properly and adequately repair said hole(s). The trial was bifurcated and this decision discusses the issues of liability only.
Route 31 is a two-lane State highway with a broken yellow line dividing the lanes of traffic and with a white edge line on both sides of the roadway, delineating the travel lane from the shoulder. Phipps Road is a two-lane rural road without lane or edge markings but with a stop sign for eastbound traffic at its intersection with Route 31.[2]
On December 8, 1994, Claimant was operating his 1988 Dodge pickup truck at the intersection of Route 31 and Phipps Road in the Town of Albion, New York. He was familiar with this intersection as he lived on Phipps Road and traveled it several times a day over a roughly five year period from 1989 to 1994.
The complained of incident occurred in the morning of December 8, 1994. It had snowed the night before. It was cold that morning and the roads were "dusty" with snow. Claimant was traveling westerly on Route 31 approaching its intersection with Phipps Road when he signaled, slowed down, and made a right turn onto Phipps Road.[3]
His vehicle was traveling at a speed between 10 and 15 miles per hour when he struck two potholes, first with his right front tire and then with the right rear tire. The first pothole caused a mild jarring and the second caused a "real heavy jar, just dropped me down in the seat - threw me straight up in the seat." He marked the location of the two potholes,[4] judging the first to be the size of two basketballs with a depth of some four to five inches. The second pothole was purportedly across the eastbound lane of Phipps Road, and was described as about three feet in length. Claimant places both potholes on the travel pavement of Phipps Road and about ten feet from the edge of the shoulder of Route 31.
Claimant did not get out of his truck after striking the potholes but drove directly to his home. At home, he asked his wife to call one Miles, the Superintendent of Highways of the Town of Albion, to report his accident and Miles then went to the intersection and inspected it. The following morning Claimant went to the hospital.

Claimant admits that he was aware of the existence of the two potholes prior to his accident and states that the larger pothole had existed for two months prior to December 8, 1994. He also alleges that since 1989, at this intersection, potholes would appear several times in the spring and fall, and were continuously patched. He never contacted or complained to any State of New York office or employee, nor to any other person.

John Miles was the Superintendent of Highways for the Town of Albion until his retirement in 1999, and at trial testified that he visited the scene of this accident after receiving the complaint of potholes that had just caused Claimant's accident. Miles confirms that, after Richard Millis had encountered the suspect potholes and had returned to his home, his wife Marlea telephoned the Town of Albion Highway superintendent's office to notify them that there were potholes at the intersection of Phipps Road and Route 31 and that Claimant had just been injured when he encountered them with his truck. Miles, within ten to fifteen minutes after this phone call, went to the intersection. He observed a light falling snow and a single set of tire tracks in the dusting of snow on the ground at the intersection.

The testimony of John Miles, an experienced highway professional, is instructive because he was the witness before me who was the first to have viewed the accident scene, and, despite Claimants' suggestion of bias to protect his former employer (the Town of Albion) his retirement seemingly negates the suggested adverse inference based upon the pending lawsuit against Albion in Supreme Court.

Miles did not observe any potholes in the paved section of the intersection north of Route 31 on Phipps Road and credibly stated, "There wasn't any." He also observed no potholes in the paved portion of Route 31. He found a depression "on the northeast section of the Phipps Road which would be the westbound lane if you were to turn right off of 31 on to Phipps Road it would be on the right hand side." He described the depression as being just off the stone shoulder area and in a dirt grass area with the size of "Maybe up to two foot long, a foot and a half wide, muddy damp area. Maybe a two inch gradual depression from one end to the other end, measured in the center." Miles made a sketch of the area and his findings on a Complaint Report[5]
that he prepared the next day. He testified that he did not see any potholes as described by the Claimant and as purportedly illustrated by Claimant on Exhibit 2. Miles did find that there were two indentations as shown on his report, but neither one was on the paved lane of travel. He was the only factual witness to the conditions at the scene that morning.
Dean Hart, a New York State Department of Transportation (DOT) employee stationed in Albion, testified that in December 1994 he was told by the State dispatcher that there was a complaint of "pothole in the road" at the intersection of Route 31 and Phipps Road. He visited the scene, finding no pothole in the paved lane of travel, but he did find a pothole "off the paved shoulder in the dirt," clearly referring to Route 31, as there were no paved shoulders on Phipps Road. Hart did not take any photographs of the pavement nor did he take any measurements. In March 1995 he prepared a report and sketch of his findings from his memory.[6]
He stated that at this intersection there have been potholes in the pavement and that the State did patch them prior to December 1994 and specifically on Phipps Road.
The State's right-of-way at the intersection was a pie-shaped area running along both Phipps Road and Route 31 and it was the responsibility of the State to maintain the pavement and shoulders within the areas as shown on Exhibit 13. The shoulders on both sides of Phipps Road were constructed of crusher run stone material and were between 18 inches and 24 inches in width. David Lange, the DOT's Resident Engineer in Genesee and Orleans Counties, which includes Albion, testified that the duty of the State to maintain Town roads within the State's right-of-way is limited to the paved road surface and paved shoulders, if any.

I credit and accept the testimony of the notice witnesses that this intersection was a poor drainage area and had at times potholes and poor pavement maintenance between 1990 and 1994. The testimony of notice witnesses Mosley, Reid, Webster and Underwood is persuasive with respect to a chronic subsurface condition at this intersection, when viewed and opined by lay persons. However, their observations are in direct conflict with the actual conditions that existed on the morning of December 8, 1994. Hence, even expert subsurface soil testimony would be unavailing given the actual conditions that existed that morning. Finally, I note that there was no evidence presented of a ‘maintenance agreement' between the Town of Albion and the State of New York presented at trial which would specifically address the legal responsibilities of either or both entities.

Claimants request that I not credit the testimony of Miles and Hart as they were employed by the Town and the State respectively, and that they therefore each had "a direct interest in the outcome of this matter, specifically that their employers not be held liable in this matter." I decline to do so. I find both creditable, particularly the observations and opinions of Miles, as his testimony could very well have implicated the Town as the depression he described was off the shoulder area. The testimony of Lange that the State's duty to maintain Phipps Road only included the paved portion of Phipps Road and its shoulders also was persuasive. Claimant has definitively and specifically testified that his truck struck the potholes in the paved and traveled portion of Phipps Road. I find that there were no such potholes in the paved portion of Phipps Road as he claims, that there did not exist any depression "the size of two basketballs with a depth of 4 to 5 inches deep," nor was there a depression "across the eastbound lane of Phipps Road about three feet in length."

The allegation that a change of configuration of this intersection from a smooth curve to a very sharp curve, created the underlying pothole friendly subsurface condition has no relevance to this accident, nor does it supply a foundation of the creation of a dangerous condition. The factual allegations are not persuasive without expert subsoil testimony and in any event, even if this condition was chronic, I have found that there were not any potholes in the pavement of Phipps Road on the morning of December 8, 1994.

Part of the confusion or dispute before me was the interchangeable use of different terminologies for roadway, road surface, paved shoulder, pavement, etc., all impliedly referring to the same location. After hearing all the testimony and reviewing the exhibits in evidence, perhaps the circumstances here can be summed up as follows: as Claimant drove his truck, making the turn from State Route 31 onto the Albion Town's Phipps Road, he traveled beyond the shoulder of the road and onto an area which, while still within the State's right-of-way, was not an area for which the State had maintenance responsibility.

Beyond what I believe to be a purposeful obfuscation of terminology, attempting to create the impression that Claimant was driving on either pavement or shoulder, the proof was deficient in another respect. The characterization of the depressions beyond the shoulder as being potholes, while perhaps consistent with Claimant's exaggerated dimensions of depth and width, is not supported by the facts adduced at trial.

There was no evidence presented to me that established a duty on the part of the State of New York to maintain an area within its right-of-way, but beyond the roadway and adjacent to the shoulder. I decline the invitation to extend the duty of the Defendant, statewide, beyond those areas for which it bears responsibility.

Given that I have found that there were no potholes here, and thus liability does not attach for that reason, my discussion of a municipality's duty vis-à-vis a right-of-way might be considered
dicta. Nonetheless, given possible appellate review and in the absence of legal authority to the contrary, I adhere to the rules set forth below, that the State is not responsible for maintenance beyond the roadway and shoulder of its roads.
The question of a municipality's duty with respect to maintenance of the right-of-way has not been reviewed with great frequency by the courts, but when it has, it appears that the courts have declined to extend the State's liability onto the right-of-way. In
Young v New York State Thruway Auth., 76 AD2d 834, where an individual exited a motor vehicle on the shoulder of the Thruway, walked in a perpendicular line some 20 feet away from the road and fell into an uncovered manhole located on defendant's right-of-way, the Appellate Division held that "[u]nder well-settled law, the defendant has no duty to maintain its entire right of way in a condition safe for travel by either motorists or pedestrians (citations omitted)."
Kinne v State of New York, 8 AD2d 903, affd 8 NY2d 1068, a driver was forced to turn to his right and struck a tree located in a grassy area beyond the graveled shoulder. Negligence was predicated on the existence of the tree at that location. Similar to the claim at bar, that claimant was very familiar with the road in question, but the Court declined to "impose an intolerable burden upon the State" to remove any tree located within the extreme highway limits along every State highway in New York, or permit them to remain at its peril of being subject to damages. In Tomassi v Town of Union, 46 NY2d 91, the Court of Appeals reiterated that a municipality is not an insurer of the safety of its roadways, also noting that certain risks are unavoidable, but holding that the paved roadway was more than adequate for safe public passage, and travel beyond those limits is neither contemplated nor foreseeable.
A municipality's nondelegable duty of maintaining its roads and highways in a reasonably safe condition extends to conditions adjacent to the highway, and if the State or governmental subdivision undertakes to provide a paved strip or shoulder alongside the roadway, it must maintain that shoulder in a reasonably safe condition for foreseeable uses, including those uses resulting from a driver's negligence or an emergency (
see, Bottalico v State of New York, 59 NY2d 302), but where an adequate paved roadway is provided, a municipality is not under a duty to maintain, for vehicular traffic, unimproved land beyond the limits of the paved roadway (see, Stiuso v City of New York, 87 NY2d 889, 891; Kimber v State of New York, 294 AD2d 692, appeal denied 99 NY2d 501).
Nurek v Town of Vestal, 115 AD2d 116, cited by Claimants, is not to the contrary as the duty it considers is the obligation by the State or municipality to trim growth within the highway's right-of-way to assure visibility of stop signs and other traffic, not road maintenance beyond the road and shoulder into the right-of-way. Similarly, Ledet v Battle, 231 AD2d 884, also referenced by Claimants, reviews the State's duty to place signs at intersections of any highway intersecting or meeting a state highway maintained by the State, and is primarily concerned with road signs and their visibility at such intersections, and does not permit even the slightest inference that such duty may be expanded to support Claimants' contention.
On the issue of the applicability of Highway Law § 10 (25) and § 58, since I have found that the Claimant did not encounter such potholes/depressions as he claimed, and since I have found that the State has no duty for road maintenance beyond the roadway and shoulder into the right-of-way, it is not necessary to reach or elaborate upon these issues.

I find that the Claimants have not sustained their burden of proof and this claim is hereby dismissed. All motions heretofore undecided, including Motion No. M-64926, are denied as moot.

Let judgment be entered accordingly.

May 6, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1]The claim of Marlea Millis is derivative in nature. References to Claimant therefore shall mean Richard Millis, unless otherwise specified.
  2. [2]See Exhibit 100.
  3. [3]See generally Exhibit 99.
  4. [4]See Exhibit 2.
  5. [5]Exhibit 12, as redacted.
  6. [6]Exhibit 10, as redacted.