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
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
. 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
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
, 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
, 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
Edwards v State of New York
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
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.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
; Bottalico v State of New York
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
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]).
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
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
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
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.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.