This claim for personal injury arose from an accident on Route 44 in Amenia,
New York on September 17, 1999 at approximately 8:20 a.m. The trial was
bifurcated and this decision deals only with the issue of liability.
It was established at trial that Route 44 generally runs in an east-west
Claimant testified that on the morning of September 17, 1999, at approximately
8:00 a.m., he left Amenia, New York to return to his home in Poughkeepsie. He
stated that he was traveling westbound on Route 44 for about 15 minutes when
suddenly a tree landed on the roof and windshield of his 1994 Toyota pickup
truck. The windshield of the truck collapsed in on claimant (see Exhs. 1, 2 and
3). He testified that both his hands hurt and were bleeding. Claimant stated
that the tree fell from his left or the south side of Route 44; that the tree
was dry and brittle; that the tree shattered when it hit his vehicle and pieces
of bark flew off the tree; that there were no leaves on the branches of the tree
which fell on his vehicle. He further stated that the portion of the tree trunk
which remained standing had dried bark hanging from it (see Exhs. 10, 11, 13,
14, 16 and 17). On cross-examination, claimant stated that the stump of the
subject tree was located approximately 13 feet from the edge of the roadway.
Claimant stated it was located about 30 yards from the nearest mile marker which
was mile marker 2228.
John T. Moran was called as a witness by claimant. Mr. Moran testified that
(1) he is a graduate of the University of Massachusetts Stockbridge School of
Agriculture majoring in Agriculture and Park Management; (2) he has attended
yearly lectures and conferences regarding tree care and maintenance and has
lectured regarding tree evaluation and maintenance; (3) he also published
articles in trade magazines; (4) he has worked in the tree industry since 1969,
is a consulting Arborist and owns his own company Arbor Care, Inc.; (5) he is
certified by the International Society of Arbor Culture, has a Massachusetts
Arborist certification and is a licensed Arborist in the State of Connecticut.
The Court accepted the witness as an expert in the field of tree care, without
Mr. Moran testified that (1) he met claimant on October 11, 1999 when he went
to the scene of the accident and inspected the portion of tree which was still
standing; (2) he identified the tree as an American Elm and measured the
diameter of the tree as 18 inches; he took photographs of the tree (Exhs. 4, 5,
6 and 7) and stated that approximately 20 feet of the stem of the tree was still
standing after the top portion fell on claimant's vehicle; (3) he noticed
mushrooms growing at the base of the subject tree and that all the bark was
peeling off the tree; (4) he measured the distance from the edge of the road to
the base of the tree as approximately 13 feet; (5) from looking at the diameter
of the tree, he estimated the height of the subject tree prior to the top of the
tree falling was at 40 feet to 50 feet. The witness stated that the fact the
bark was missing from the tree tells him that the tree had been dead for a long
period of time as does the presence of mushrooms at the base of the tree because
this kind of mushroom grows from decayed wood.
Mr. Moran opined that the subject tree died of Dutch Elm Disease in 1996 based
upon the amount of bark that was coming off the tree. He stated his opinion
that the tree would have started showing signs that it was dying in 1996 in that
the leaves on the tree start to turn yellow prematurely; that in 1997 only about
10% of the leaves on the tree would have grown and the remainder of the tree
would have been dead; that he believes the bark would have started to peel off
in the summer of 1997 and all the leaves would have been off the tree during the
summer months indicating the tree was dead. The witness stated that the fact
the tree was dead would have been visible from Route 44 by 1997.
On cross-examination, the witness was shown Exhibit F, a Report on Weather
Conditions on Route 44 in the Town of Amenia on September 16 and 17, 1999
prepared by Weather Surveys. Page 3 of the report relates that Hurricane Floyd
was located off the coast of North Carolina on September 16, 1999 and this
produced heavy rain in the Town of Amenia. The report also relates that on
September 16, 1999 the winds were 10 to 20 miles per hour (MPH) in the morning
and increased to 15 to 25 MPH in the afternoon and night with gusts to 30 to 45
MPH (Exh. F, Pg. 4). The exhibit also reports that on September 17, 1999, the
date of the subject accident, the winds during the day were 15 to 25 MPH with
gusts to 25 to 35 MPH (id). The witness stated that winds of 15 to 25 MPH would
not have an effect on trees but that wind gusts of 30 to 45 MPH might cause
trees to be weakened. The witness stated that winds such as those recorded on
September 16 and 17, 1999 were not unusual.
The State called as a witness Richard D. Howard. Mr. Howard testified that (1)
he has been employed by the New York State Department of Transportation
(hereinafter DOT) for 24 years; (2) that on the date of the subject accident he
held the position of Highway Maintenance Supervisor II and currently holds the
same position; (3) as part of his duties he performs road inspections of State
roads looking for dead trees located on the side of the roads; (4) that the
inspection is a windshield survey; that is, as he drives along the road,
traveling at about 10 to 15 MPH he scans both sides of the road looking for dead
trees; (5) that he performs this inspection in a State vehicle equipped with a
yellow dome light which is activated and the 4-way flashers also activated. The
witness stated that Exh. B is a list of trees he considered to be dead, prepared
in 1997, after performing a road inspection of various State roads, including
Route 44 in Amenia. He testified that the list does not contain any notation of
a dead tree at mile marker 2228, the location of the subject accident. Mr.
Howard reviewed the dead tree lists he prepared in 1998 (Exh. C) and 1999 (Exh.
D) and neither notes a dead tree at about mile marker 2228 on Route 44. The
witness further testified that the dead trees noted on the tree list are
eventually removed by a contractor hired by the State.
Mr. Howard testified that he is a Volunteer Firefighter in the Town of Amenia
and on the morning of claimant's accident he heard a call on his radio regarding
the accident and went to the scene. He stated that there is no doubt in his
mind that the tree which fell on claimant's vehicle was dead.
On cross-examination, Mr. Howard testified that DOT sent him to a class to
identify dead trees, however his recollection of the details of this training
were somewhat non-specific.
It is well settled that the State has a duty to maintain its roadways in a
reasonably safe condition and that duty extends to trees adjacent to the roadway
which could reasonably be expected to result in injury or damage to the users of
the roadways (see,
Harris v Village of East Hills
, 41 NY2d 446; Guido v State of New
, 248 AD2d 592). The duty to "properly inspect and correct [the
potential danger] by trimming or removal is essential to proper maintenance" of
trees by the State (Edgett v State of New York
, 7 AD2d 570, 574).
Liability, however, does not attach unless the State had actual or constructive
notice of the potentially dangerous condition and then failed to take reasonable
measure to correct the condition (see, Leach v Town of Yorktown
, 251 AD2d
630). "In order to constitute constructive notice, a ‘dangerous condition
must have been visible and apparent and must have existed for a sufficient
length of time prior to the accident to permit [the] defendant's employees to
discover and remedy it'" (citation omitted) (Fowle v State of New York
187 AD2d 698, 699).
The New York State Court of Appeals stated in
Ivancic v Olmstead
, 66 NY2d 349, 351:
"At least as to adjoining landowners, the concept of constructive notice with
respect to liability for falling trees is that there is no duty to consistently
and constantly check all trees for nonvisible decay. Rather, the manifestation
of said decay must be readily observable in order to require a landowner to take
reasonable steps to prevent harm. (See,
Berkshire Mut. Fire Ins. Co. v State of New York
, 9 AD2d 555.)" (see
also, Leach v Town of Yorktown
, 251 AD2d 630,
Here, the testimony of claimant's expert, Mr. Moran, established that the
subject tree trunk showed outward, visible signs of decay up to three years
prior to the claimant's accident. He testified that, based upon his inspection,
the tree died of Dutch Elm Disease. The visible signs of decay were the peeling
bark, the growth of mushrooms at the base of the tree and the fact that the
leaves of the tree would have first turned yellow prematurely and then not
blossomed at all. He opined, without contradiction, that the subject tree
showed signs it was dying in 1996 and was dead by 1997. He further testified
that all these signs would have been visible from the road by someone doing a
tree inspection. Thus, we find that the subject dead tree of approximately 40
to 50 feet in height located 13 feet from the edge of the State roadway
constituted a dangerous condition of which the State had constructive notice.
Mr. Howard, the State's employee responsible for looking for dead trees, stated
that when he arrived at the scene of the accident he knew the subject tree was
dead. He also testified that he had driven along Route 44 since at least 1997
(see Exh. B) and had not seen any dead trees in the area of the subject tree.
However, the Court notes that Mr. Howard conducted his inspections by himself,
as he was driving a vehicle and attempting to view trees
sides of the road. It was also established that this tree was
located on a curve in the road, presumably requiring more attention to driving.
We do not believe such methodology constitutes a reasonable
Based upon the foregoing, we find that the subject tree constituted a dangerous
condition of which the State had constructive notice and failed to take
reasonable corrective measures (see,
Rinaldi v State of New York
, 49 AD2d 361). We further find the State's
negligence in performing tree inspections to be the proximate cause of the
accident. We find the State to be 100% responsible for the subject accident.
The Chief Clerk is directed to enter an interlocutory judgment in favor of
claimant and against the defendant, State of New York.
Upon filing of this decision, the Court will set the matter down for trial on
the issue of damages as soon as practical. Counsel for both sides are hereby
directed to contact the Court to establish a conference date regarding
outstanding discovery matters with respect to the issue of damages. Counsel are
directed to consult with each other regarding potential conference dates and to
contact the Court regarding same within 30 days subsequent to receipt of this