New York State Court of Claims

New York State Court of Claims

KELLEY v. THE STATE OF NEW YORK, #2002-019-015, Claim No. 101747


Claimant failed to establish prima facie case of negligence against the State in connection with her fall into a drainage culvert adjacent to shoulder of roadway; State's motion to dismiss made at end of trial granted; claim dismissed.

Case Information

LISA KELLEY The Court has amended the caption, sua sponte, to reflect the only defendant over which this Court has jurisdiction.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption, sua sponte, to reflect the only defendant over which this Court has jurisdiction.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
July 10, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Lisa Kelley, was injured on December 5, 1998, when she fell into a drainage culvert which she alleges was negligently maintained by the New York State Department of Transportation (hereinafter "DOT"), adjacent to the westbound shoulder of New York State Route 79 (hereinafter "Route 79"), located in the Town of Harpursville, New York. The trial of this Claim was held in the Binghamton District on January 7, 2002 and was bifurcated. Consequently, this Decision addresses the issue of liability only.

On Saturday, December 5, 1998, the Claimant's daughter had left home to attend a cheerleading competition at a nearby high school. She was due home at approximately 4:30 p.m. When she didn't arrive as expected, Claimant began to worry. Concerned that her daughter may be walking home alone in the dark, Claimant, who did not have a car available to her, decided to walk from her home, located on Route 79 in the Town of Harpursville, New York, toward her daughter's school. Claimant testified she left her home at approximately 5:20 p.m. without a flashlight or any type of illumination. As required by Vehicle & Traffic Law § 1156, Claimant traveled west on the eastbound shoulder of Route 79 toward the high school for a distance of approximately one
mile. Just before arriving at the high school, Claimant found her daughter with a friend sitting in a car in the Town of Harpursville. She told her daughter to go home immediately. For some unknown reason, Claimant refused a ride back home with her daughter and friend, but instead decided to walk the return distance home. Claimant then crossed Route 79 and headed east on the westbound shoulder of the roadway.

At approximately 5:20 p.m. Claimant was about 3/4 of a mile from her home, walking on the westbound shoulder of the roadway in an easterly direction. She testified that when an automobile passed, she would step off the paved portion of the 4-foot shoulder to give herself more room. However, rather than wait in safety for the automobiles to pass, Claimant left the paved shoulder of the roadway and continued walking in the dark off the shoulder and on the grass adjacent thereto. As she continued walking, Claimant inadvertently stepped into the open end of a culvert which she could not see in the dark, and fell a distance of approximately 5 feet resulting in a broken leg. Claimant subsequently dragged herself out of the culvert and sat on the paved shoulder of the roadway. Sometime later a passing motorist saw her, stopped, then went to the Claimant's home to summon help. An ambulance subsequently arrived taking the Claimant to a local hospital for treatment.

Route 79 is a two-lane highway with lanes of travel running in generally an east/west direction. There are four foot paved shoulders adjacent to each of the travel lanes, and each driving lane consists of 11 ½ feet of pavement. As such, the total paved width of Route 79, including shoulders, is 31 feet. It was established at trial that somewhere between mile post marker 1163 and 1165 there exists a culvert pipe which runs under Route 79 and drains water from one side of the roadway to the other. It was also established at trial, that the header on the westbound shoulder portion of the culvert pipe had collapsed years earlier as a result of natural erosion. However, the absence of the header in this area did not affect the culvert, its functioning, or drainage of surface water from one side of the roadway to the other. In fact, the portion of the header that had collapsed had been left by State crews in the bottom of the culvert, approximately 5 feet below ground level, to act as riprap[1]
and to aid in the ground water flowing through the culvert. It further appears that the header on the westbound shoulder of Route 79 had collapsed some time ago, perhaps as long as five years or more before December 5, 1998, the date of Claimant's accident.

According to the Claimant the evening of December 5, 1998 was unseasonably warm and there was no snow on the ground. She acknowledged that there were few light poles in the area and it was quite dark along this portion of Route 79. While she was familiar with this road, having lived on the same for approximately 14 years, Claimant said she walked this stretch of roadway very infrequently. Claimant states she had seen in the past yellow hazard markers, indicating the existence of the drainage culvert on either side of Route 79, however, without illumination these hazard markers were not readily visible. Furthermore, these hazard markers were painted with reflective paint only on the side facing oncoming vehicular traffic, but no such reflective coating would be visible to pedestrians, such as Claimant herein, walking west on the eastbound shoulder of the roadway.

The State called Mr. Lawrence Allen, the Highway Maintenance Supervision for Region 9 of the DOT. Mr. Allen testified that this section of Route 79 had been repaved in 1997. However, the project for repaving provided only for resurfacing, and did not include the addition of sidewalks, guide rails, barricades, or reconstruction of any of the culverts. He further acknowledged that he was well aware of the status of this culvert and the many others which are found along Route 79. While these headers may have been collapsed for some time, it was his opinion that the debris lying in the open culverts did not in any way affect the functioning of the culvert. To the contrary, the dropped concrete header served to enhance the draining of water acting like riprap. Mr. Allen testified that the broken culvert header at the location where the Claimant sustained her injury was about 18 inches to 2 feet from the edge of the paved shoulder in the adjoining grassy area.

The roadway in the area of the Claimant's accident is straight and level, without visual obstructions to motorists or pedestrians. Mr. Allen was aware that while the highway was designed generally for motor vehicle traffic, pedestrians and bicyclists used this route as well. As such, a 4 foot paved shoulder is provided for these additional users of the highway. Mr. Allen also testified that this culvert is clearly marked with appropriate off-road hazard markers, which is consistent with Title 17 of the New York Code Rules and Regulations, Section 237.8 (a) (2). These markers were in fact up and posted on December 5, 1998, however, they are set on either side of the highway observable to travelers both east and westbound. He testified reflectors would not be placed in opposing directions because this would create a dangerous distraction to motorists.

The State also called Resident Engineer, Stephen Erickson, who confirmed that the resurfacing of Route 79 took place sometime around 1997. He further testified how certain projects are planned and implemented by DOT within their budgetary constraints. Since the 1997 repaving of Route 79 was not designated as a capital improvement or "D" project, the same did not encompass reconstruction of the many crossroad culverts in the area, nor did it include additional items such as sidewalks, lights, barricades, or guide rails. While he acknowledged that many of these roadways could use those types of improvements, DOT has to prioritize their tasks in view of limited resources at their disposal to their best advantage. Consequently, Route 79 compared to more heavily traveled highways in the region was a relatively low priority and not considered a problem area. As such, in 1997 only resurfacing of Route 79 was approved simply to eliminate wheel ruts, sunken areas, and cracked and broken pavement. The repaving guaranteed that appropriate road markings were in place and that sufficient travel lanes and adjacent shoulder widths were provided. It was Mr. Erickson's opinion that the highway sufficiency ratings were more than adequate and that the roadway was safe and useable for the amount of traffic, pedestrian and otherwise, it encountered. He opined that the existence of this culvert, with or without the header attached, was never intended to be used as a pedestrian thoroughfare. This was particularly true in light of the fact that a 4 foot wide freshly paved shoulder was maintained between the driving lane and the top of the culvert in the grass, approximately 2 feet from the end of the paved shoulder. Since the roadway was in all other respects well maintained for travel of both pedestrians and vehicular traffic, and sufficiently adequate shoulders provided, the dilapidated condition of this and other culverts along Route 79 did not, in his opinion, constitute a dangerous condition to either motorists or pedestrians. Since this culvert was approximately 2 feet off the 4 foot wide paved shoulder, and adequately marked, it was not reasonably foreseeable that this culvert with collapsed header would encounter traffic, either pedestrian or vehicular.

At the close of Claimant's proof, the State moved for dismissal of the Claim, this motion was renewed at the close of all proof. The Court reserved on these motions.

It is well-settled that the State has a nondelegable duty to adequately design, construct, and maintain its highways in a reasonably safe condition. (
Friedman v State of New York, 67 NY2d 271, 283). That having been said however, the same does not make the State an insurer of the safety of its highways and the mere happening of an accident on a State highway does not render it liable for damage. (Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Rather, the State's duty is conditioned upon the prevailing circumstances and extends only to foreseeable uses of the highways by vehicular traffic and pedestrians alike. However, the Court agrees with the State that not every use of a highway by a pedestrian comes within the scope of the State's duty. (Hamilton v State of New York, 277 AD2d 982, lv denied 96 NY2d 704). While the State is required to use reasonable skill and diligence in making its highways safe and convenient for travel, "[i]t is under no obligation to provide for everything that may happen upon its highways, but only for such use of them as is ordinary and as reasonably may be expected." (Lyons v State of New York, 192 Misc 983, 988, affd 274 App Div 1086). Additionally, a claimant must prove that the State was negligent and that such negligence was the proximate cause of the injury. (Bernstein v City of New York, 69 NY2d 1020, 1021-1022). Additionally, the State must have actual or constructive notice of a dangerous condition and then fail to take reasonable measures to correct the condition. (Rinaldi v State of New York, 49 AD2d 361).

Based upon the facts of this Claim, and the current status of the law, the Court is satisfied that the State lived up to its duty of care relative to its maintenance of this section of Route 79. The road had recently been resurfaced and was level. It was also clearly marked for travel and for off-road hazards. Additionally, there was a 4-foot shoulder adjacent to each driving lane which should have provided sufficient room for Claimant to walk in relative safety. It was only when the Claimant left the paved portion of the thoroughfare and continued to walk in the dark on the grassy portion adjacent to the 4-foot shoulder did injury result. Moreover, the testimony establishes that this culvert, although not in perfect condition, was adequate for the purposes for which it was designed. Moreover, the Court agrees with the State that while the Claimant alleges she complied with provisions of Vehicle & Traffic Law § 1156 (b) concerning pedestrian traffic on roadways, this statute deals with automobile versus pedestrian encounters, and presumes that a pedestrian shall "[
w]hen practicable walk only on the left side of the roadway or its shoulder facing traffic...." (Emphases added). Here, the testimony establishes that the Claimant clearly went beyond the bounds of the paved shoulder and continued to walk in the dark on the adjacent grass through no fault of the State. Under these facts, the Court is satisfied that the State in fact had designed, constructed, and maintained the subject highway and the adjacent areas in a reasonably safe condition for intended and foreseeable uses. Furthermore, although the State was aware of the condition of this particular culvert into which the Claimant fell, the Court agrees that this knowledge does not necessarily equate to notice of a defective or dangerous condition. This is true simply because the condition of the culvert itself presented no danger to pedestrians who were properly using the paved shoulder as a walkway as opposed to the adjacent grassy area. Moreover, since the culvert functioned as intended and designed, it did not necessitate repair.

With respect to the issues of foreseeability of danger and notice, the Court may take into consideration proof of prior accidents at the same locale under similar conditions, or indeed the absence of accidents. (Zeigler v Wolfert's Roost Country Club, 291 AD2d 609). In the present case, there were no accidents of the same or similar nature at this location. Rather, the Court is satisfied from weighing the facts of this case that the Claimant unreasonably engaged in conduct that led to her injury. More specifically, Claimant rather than accept a ride home with her daughter, chose to walk in the dark without a flashlight or any illumination, and in spite of all of that, chose to walk off the paved shoulder of the highway onto the non-paved adjacent grassy portion of the right-of-way. Moreover, Claimant also could have simply stopped and stepped to the side to allow for traffic to pass instead of stepping off the shoulder of the roadway and continuing her sojourn in the dark on the unimproved, uncharted, adjacent grass. Had she simply stopped and stepped to the side without straying off the shoulder, she might have ultimately prevented herself from falling in the dark into the culvert. Moreover, "[w]hen a lack of lighting renders ineffective the use of one's eyesight as to the condition of the route upon which he is traversing, ordinary prudence requires that he refrain from proceeding further without first ascertaining if he may safely proceed [citations omitted]." (Halstead v Kennedy Valve Mfg. Co., 36 AD2d 1005, 1007, affd 31 NY2d 901). Claimant, by her own testimony, has established that it was dark and she could not see where she was going, but elected to proceed in total darkness into an area with which she was only vaguely familiar and which she should have reasonably perceived could be fraught with danger. Under these circumstances, even a drainage culvert in pristine condition would have posed the same or similar threat of injury to a pedestrian.

Unfortunate as it may be, the Court believes that it was the Claimant's own negligence in failing to use ordinary care and pursuing a dangerous course of her own choosing.
Consequently, the Court agrees with the State and the State's motion to dismiss, made at the end of trial and upon which the Court previously reserved, is now GRANTED, and Claim No. 101747 is hereby DISMISSED.

Any motions not previously decided or upon which the Court previously reserved are hereby denied.


July 10, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Riprap is a layer of material used to prevent erosion.