New York State Court of Claims

New York State Court of Claims

PRESTON v. THE STATE OF NEW YORK, #2002-009-111, Claim No. 98215


This is a claim seeking damages for conscious pain and suffering and wrongful death resulting from a one-car accident which occurred on State Route 96 in Tompkins County. It is alleged that the State was negligent in the construction and maintenance of that highway, in that the State had permitted a substantial tree to remain extremely close to the paved shoulder of the highway. The Court found that the location of the tree adjacent to the shoulder violated the State's duty to provide a reasonably safe clear zone, or roadside recovery area. The Court found the State 100% liable, with a trial on damages to follow.

Case Information

CHRISTOPHER M. PRESTON, Administrator of the Estate of JUDITH M. WELLIN, Deceased
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:
BY: William S. Friedlander, Esq., Of Counsel.
Defendant's attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
December 27, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

This claim seeks damages for the conscious pain and suffering and wrongful death of claimant's decedent, resulting from injuries suffered by her in a one-car accident which occurred on New York State Route 96 in the Town of Ulysses in Tompkins County on July 1, 1997.

Claimant alleges that the State was negligent in the construction and maintenance of Route 96. The trial of this claim was bifurcated, and this decision deals solely with the issue of liability.

The facts of this claim are essentially undisputed.

On July 1, 1997, Judith M. Wellin, claimant's decedent, was a passenger in the right front seat of her automobile, a 1985 Buick Skylark, which was being operated by her son, Steven H. Bell. Ms. Wellin and Mr. Bell were proceeding north on State Route 96 in the Town of Ulysses, at approximately 5:45 p.m., when the car drifted off the road and struck a tree adjacent to the shoulder. The impact of the collision caused the car to roll over onto its roof and the vehicle came to rest in the middle of Route 96, trapping Ms. Wellin and Mr. Bell. Mr. Bell was pulled from the wreckage, but Ms. Wellin could not be rescued before the car burst into flames, and she perished as a result of the accident.

Ronald E. Campbell was a witness to the accident, as he had followed the Wellin vehicle for approximately two miles prior to the accident. He testified that the Wellin vehicle was traveling at a speed of approximately 57 miles per hour when it left the pavement, and that he did not observe any evasive procedures taken by Mr. Bell since the accident occurred so quickly after the vehicle left the travel lane. The impact with the tree occurred at approximately the center of the headlight assembly on the right (passenger) side of the vehicle.

Steven H. Bell, the operator of the vehicle at the time involved in the collision, also testified. He testified that as of the date of the accident, he was 18 years of age, and that he possessed a learner's permit, which he had had for approximately two years. Mr. Bell testified that while driving, he turned his head to talk to his mother and had glanced over at her for "a couple of seconds"[1]
. When he looked back to the road, he noticed the tree immediately in front of him and within one second he collided with the tree.
Mr. Bell testified that at the time of the accident it had begun to rain, and that he was operating the vehicle with both his windshield wipers activated and with his headlights on. There was no evidence of any braking or skid marks found in the accident investigation.

The State has a duty to construct and maintain it 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 in the maintenance of any shoulders it provides for emergency use (see, Stiuso v City of New York, 87 NY2d 889; Bottalico v State of New York, 59 NY2d 302; Pontello v County of Onondaga, 94 AD2d 427, lv dismissed 60 NY2d 560). Where appropriate, it must erect and maintain guide rails (Colegrove v County of Steuben, 216 AD2d 888). 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, 277 AD2d 982, lv denied 96 NY2d 704). To prevail, a claimant must prove that the 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 this claim, there can be no dispute that the actions of Steven Bell, the operator of the vehicle, were the sole cause of the vehicle leaving the roadway. It is claimant's contention, however, that the State's duty to inspect and maintain its roadways extends to areas immediately adjacent to the paved roadway and shoulder which could reasonably be expected to cause injuries to off-the-road drivers or passengers, and that such a duty was breached in the instant matter.

Peter D. Novelli, a civil engineer, testified on behalf of claimant as an expert in highway design and maintenance. John Curatolo testified for claimant as an accident reconstruction expert. Their testimony established, without contradiction, that the travel lane of the northbound lane of Route 96 was 12 feet in width. At the site of the accident, the paved shoulder of the roadway was four feet six inches in width. The nearest edge of the tree which was involved in this accident was two feet eight inches from the end of the paved shoulder. In other words, the tree was located seven feet two inches from the edge of the travel lane of Route 96. Their testimony also established that the tree was between two feet two inches and three feet in diameter.

Mr. Novelli also testified extensively from various manuals and publications regarding the concept of a "clear zone", which he defined as the area adjoining a roadway which should be "clear" of any obstacles which could prove to be dangerous if a vehicle left the highway. Based upon his review of these manuals and guidelines, Mr. Novelli concluded that a roadway such as Route 96, based upon the posted speed limit, should have a recommended clear zone of 30 feet. He acknowledged, however, that clear zones of such width are not always possible to achieve, based upon economic and other considerations. Based on these considerations, Mr. Novelli determined that an acceptable clear zone for Route 96 in this area would be not less than 10 feet.[2]A Policy on Geometric Design of Highways and Streets, a publication by the American Association of State Highway and Transportation Officials (AASHTO), 1990 (Exhibit 25).
He concluded that although the 30-foot clear zone recommended in the safety manuals would be unreasonable due to the configuration of the area of the accident, a clear zone of 10 feet was possible. He also testified that a clear zone of 10 feet had been established in this area, except for this substantial tree located near the paved roadway and shoulder. He stated that there were no other fixed objects located within 10 feet from the edge of the travel lane in the immediate area, except for this particular tree, and that there was no feasible explanation for the State to permit this tree to have remained in this location. It was the opinion of Mr. Novelli that if a 10-foot clear zone had been fully established, Mr. Bell would have had an opportunity to recover control of his vehicle and get back onto the highway without incident.
Richard R. Church, a licensed engineer, testified as the State's expert witness with regard to highway design, maintenance, and accident reconstruction. He testified that Route 96, proceeding north to the accident site, consisted of approximately 1000 feet of flat, straight roadway, with good sight distance, and that the pavement was clearly marked. He further testified that there was no prior accident history in this location, and that the tree involved in this accident was a mature, healthy tree, with no sign of disease.

Mr. Church also testified that the manuals and guidelines relied upon by claimant's expert pertain only to new construction or major reconstruction of highways. He testified that the most recent reconstruction of Route 96 in this area had occurred long before the concept of a "clear zone", and the standards pertaining thereto, had been developed.

The Court agrees that liability against the State cannot attach based upon allegations that this roadway is not in compliance with design standards which were adopted subsequent to its last major reconstruction. The Court's inquiry, however, does not end here. The State's duty to inspect and maintain its roadways extends to conditions adjacent to the roadway, which could reasonably be expected to result in injury (
Chalk v State of New York, 147 AD2d 810). This duty includes an obligation on the State to provide for the safety of those who leave its roadways by providing appropriate recovery areas, where possible, so as to allow even a driver who may be negligent in leaving the roadway to recover control of his or her vehicle and prevent an accident (Pontello v County of Onondaga, supra; Bottalico v State of New York, supra). Furthermore, there is no question that the concept of a roadside recovery area, or a clear zone, had been well established prior to this accident. Guiderail III specifically recommends the establishment of a 30-foot clear zone on an "existing or proposed" roadway. This publication further recommends that whenever possible, trees of more than four inches in diameter located within the roadside clear zone should be removed (Guiderail III, Item IV[B][1]).
In this claim, the Court finds that the location of this tree, situated at two feet eight inches from the end of the shoulder, and seven feet two inches from the edge of the travel lane of Route 96, violated the State's duty to provide a reasonably safe clear zone, or roadside recovery area. Even though this tree was not diseased or decayed, the massive size of this tree (anywhere from two feet two inches to three feet in diameter) provided the State with at least constructive, if not actual, notice of this potentially dangerous condition. Based upon its size and location, it was certainly foreseeable that a vehicle leaving the roadway in this area could collide with the tree and that serious injury could result.

The Court finds it significant that the State Department of Transportation was aware of the "clear zone" concept (having specifically addressed it in its
Guiderail III publication), and that a 10 foot clear zone was in existence in the vicinity of this accident, except for the very tree which was struck by the Wellin vehicle. It is equally significant that Guiderail III recommended removal within the clear zone of all trees (considered fixed objects) with diameters in excess of four inches, yet the Department permitted this tree to remain, for no apparent reason, even though it had a diameter of anywhere from six to nine times the maximum recommended width. Furthermore, there was no testimony or any other evidence presented at trial to suggest that the State had considered removing the tree, but had decided against it based upon any overriding local or other concerns or objections.
The Court therefore finds that the State breached its duty to provide a reasonably safe highway by failing to remove this tree, or otherwise protect the traveling public from colliding with it.

The State contends, however, that the negligence of Mr. Bell in the operation of claimant's decedent's vehicle was a superseding cause which should relieve the State from any liability in this claim, regardless of any finding of negligence in the maintenance of its roadways.

However, an "intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent." (
Derdiarian v Felix Contr. Corp., 51 NY2d 308, 316). In this case, the very concept of a clear zone or roadside recovery area is to protect motorists and their passengers from serious injury once they have left the traveled roadway, regardless of the reason which caused the vehicle to leave the roadway. In other words, the negligence of Mr. Bell in the operation of claimant's decedent's vehicle, which caused the vehicle to leave the roadway, created precisely the risk which the State had a duty to guard against, i.e., a foreseeable, off-the-road driver.
Furthermore, based upon the testimony of Ronald Campbell, the eyewitness to the accident, as well as the testimony of John Curatolo, claimant's accident reconstruction expert, the Court finds that at the point where Mr. Bell left the highway, he had no time to react and avoid colliding with the tree.

Accordingly, the Court must find that the State breached its duty to provide an adequate clear zone in this claim, and that this failure constituted a proximate cause of the accident which took the life of Ms. Wellin. The Court also finds that the State had constructive, if not actual, notice of this condition and failed to take appropriate action to remedy the dangerous condition. The State must therefore be found fully liable for this accident and must respond in damages.

The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this Decision. The Court will set this matter down for a trial on the issue of damages as soon as practicable.
Any motions not heretofore ruled upon are hereby denied.


December 27, 2002
Syracuse, New York

Judge of the Court of Claims

[1] Unless otherwise indicated, all references and quotations are taken either from the Court's audiotapes of the trial, or the Court's trial notes.

[2] In his testimony, Mr. Novelli made reference to the following publications and manuals:

Guiderail III
, a publication from the Traffic Engineering and Safety Division of the New York State Department of Transportation, issued September, 1990 (Exhibit 22).

Highway Maintenance Guidelines Roadside and Drainage Maintenance
, § 3.210, Tree Removal, from the New York State Department of Transportation (Revised April, 1979) (Exhibit 24).

Highway Design Manual
, Volume I, Chapter 2.00, "General Design Criteria", revised May, 1976 (Exhibit 23).