New York State Court of Claims

New York State Court of Claims

GUYDER v. THE STATE OF NEW YORK, #2003-013-510, Claim No. 88495


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:
Defendant's attorney:
Attorney General of the State of New York
BY: GORDON J. CUFFY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 31, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The presence of a tree some 13.7 feet from the fog line and some 24.5 feet from the center of the roadway, beyond the shoulder and on the outside edge of the drainage ditch in the State's right-of-way on a rural highway did not pose an unreasonable danger to drivers on the highway. The Court found that the paved roadway and shoulder were more than adequate for safe passage (Tomassi v Town of Union, 46 NY2nd 91).

On September 19, 1993, at approximately 3:07 p.m., Claimant and four of his friends were traveling southerly on State Route 414, approximately two-tenths of a mile north of Marsh Road in the Town of Varick in Seneca County. The automobile in which they were traveling left the paved roadway, traveled along the paved westerly shoulder, over a driveway, into a ditch, then out of the ditch, and finally impacted a black walnut tree. As a result of this accident Claimant was severely injured and alleges that these injuries were caused solely by the Defendant's negligent design, construction, maintenance and/or repair of this portion of State Route 414.

On that day, Claimant's life was forever changed. The trial of this claim was bifurcated, and this decision will examine the Claimant's assertions of negligence on the part of the State of New York.

Claimant, due to the severity of the injuries that he sustained in the accident, has a very limited recollection of the events leading up to the accident, and his testimony was of limited assistance in shedding light on whatever factors caused the vehicle to leave the paved portion of the highway and collide violently with the tree.[1] The vehicle, a 1983 Mercury four-door sedan, was owned by Claimant's father (Exhibit 6-1), but was used primarily by the Claimant. Prior to the accident, Claimant had picked up his friend Christopher Szlamczynski, and apparently permitted him to drive his father's vehicle.[2] The two of them drove and picked up three other friends, Michelle Carey, Kristin Fall and Shannon O'Dell, with the objective of traveling near Seneca Falls for some fishing. At trial, Claimant had only a vague recollection of going to the homes of the others. All five of these friends were in the vehicle when it crashed, with Christopher Szlamczynski driving and Claimant seated as a passenger in the front seat, albeit without wearing a seat belt. Michelle Carey died of the injuries sustained in this accident.

State Route 414 is a two-lane highway running generally through Seneca County in a north/south direction. Originally constructed in 1905 or 1906, it had undergone several changes, including the removal of over 100 trees in 1950, and reconstruction of a section of the road in the Town of Varick in 1962, which included the improvement of the shoulders and ditches in the construction area and the removal of trees between the paved edge of the highway and the State's right-of-way. In 1990, approximately 180 feet south of the accident, the State removed a culvert box and guiderail which had been installed in 1949, and replaced it with an oblique pipe that extended to the right-of-way, leveling the area. It was clear from the trial testimony that this was done for safety purposes since the culvert and guiderail were fixed objects and could be a hazard to the users of the roadway.

As constructed, this is considered a rural highway consisting of two travel lanes, paved shoulders and which has a right-of-way on each side, for a total width of 66 feet. The paved portion of the road consisted of two 11-foot wide lanes traveling in north and south directions, respectively. The shoulders on each side of the paved portion of the road each were six feet wide. The topography of the roadway was generally level and the roadway straight in the area of this accident. In the immediate proximity of the site, the area to the west of the shoulder consisted of a drainage ditch which sloped downward away from the highway to a depth of approximately two feet and then sloped upward, leveling off at the top, with the area between there and the right-of-way being generally level. The ditch appears from the photographs introduced at trial to be somewhat U-shaped rather than V-shaped, and is a grassy area as opposed to being improved (see Exhibits 8 to 8-K; 9 to 9-E; and A-2). Immediately north of the tree which the vehicle struck is a driveway leading to a private residence owned by one Thomas J. Karlsen.

What we are able to learn of this accident comes from the police officers who investigated the accident and were present at the scene gathering data, and the experts who were retained by the parties to reconstruct the accident. What caused the car to leave the highway in the first instance was never established with certitude.

The proof at trial established that Claimant was seated in the front passenger's seat as the vehicle was proceeding south on Route 414. At some point, just north of the driveway to the Karlsen residence, the vehicle left the paved portion of the highway, crossed the lower part of the driveway and the passenger (right) side of the car entered the drainage ditch (Exhibits A-5 and A-6). Exhibit A-6 consists of a collage of three pictures which shows the tire tracks made by the vehicle and the vehicle itself impaled on the tree. As can be seen in that photograph, as well as others, the left side of the car left the road at some point and the right side was propelled up the west bank of the ditch onto a somewhat level area, where it bottomed out creating a gouge in the earth 9.6 feet long, just north of the tree. No one measured its width or depth, and the estimates given by the witnesses were not clothed with certitude.

Donald R. Hoyt was a Patrol Sergeant with the Seneca County Sheriff's Department on September 19, 1993. He was dispatched to the scene of the accident to conduct the investigation and formulate the report of what he observed and found (Exhibits 6-1 to 6-3, 6-6, 6-7, 6-12 to 6-17, and 6-19 to 6-23).[3] Officer Hoyt estimated that the accident occurred at about 3:07 p.m., and that it involved the collision of a 1983 Mercury Grand Marquis four-door sedan and a tree located just to the west of the west edge of a drainage ditch. By measurement he found that the left wheel of the vehicle traveled 179.2 feet once it entered the grassy area of the ditch before hitting the tree. He was able to visually see the tire imprint as it rolled over the grass. That distance was later amended to 184.1 feet by Deputy Sheriff John Cleere who prepared the accident reconstruction report that makes up part of Exhibit 6 et seq.

Sergeant Hoyt stated that he was able to determine that after the vehicle left the road the right portion of the car entered the ditch area and rode up the west bank before the impact. He was unable to discover any evidence that the driver attempted to apply the brakes at any point prior to the impact, nor was there any evidence that the wheels had locked up. His examination of the interior of the car revealed that the speedometer was "frozen" at the time of the impact at 55 miles per hour and he fixed that as the speed the car was traveling at impact (Exhibit 11). He opined that while that was the collision speed, the car had been traveling at a greater speed but that when it bottomed out, gouging the ground, that had the effect of slowing the car prior to its impact with the tree. Sergeant Hoyt did not, as part of his reconstruction, make any findings as it related to the speed of the car. He noted that according to his measurements the tree the car struck was 13.7 feet from the fog line of Route 414.

Additionally, Sgt. Hoyt testified that when he observed the inside of the car he detected the odor of alcoholic beverages and noted a number of broken beer bottles inside and outside of the vehicle, as well as a pipe which he described as one that is used to smoke marijuana (Exhibits A-11, A-13, B-6, 7, 8, 11, B-25 and B-26). However, he also stated that the collision caused the bottles to break and that this created the strong odor of alcohol he detected in the vehicle. He also stated that while the pipe was in the front seat, he had no idea where the pipe was prior to the collision or if it had been moved by emergency personnel before he arrived at the scene.

John Cleere, an investigator with the Seneca County Sheriff's Department, testified that in 1993 he was a Deputy Sheriff with the Department and was assigned to conduct a further investigation into this incident. He went to the scene on October 8, 1993, less than three weeks after the accident, for the purpose taking additional measurements and preparing a supplemental report (Exhibits 6-12, 6-13, 6-14, 6-15, 6-16, and 6-17). He also went to the salvage yard where the car had been taken for storage pending the completion of the investigation by the Sheriff's Department. Officer Cleere took various measurements of the car, including the front end, to ascertain the "crush" on the vehicle, to wit, the extent of the intrusion of the tree into the front of the car. The tree, according to him, had a diameter of 1.75 feet. He also was able to observe a tire track in the ditch and estimated that it was approximately 180 feet in length. He also measured the depth of the ditch at four locations, starting at the Karlsen driveway north of the scene where he observed the tire mark. The measurements ranged in depth from two feet one-half inch at the driveway, to one foot eight inches at the second point, to two feet one-quarter inch at the third point, and at two feet one inch at the point nearest the tree (Exhibit 6-13). While Officer Cleere did not measure the steepness or angle of the sides of the ditch, he described the area as being somewhat ball shaped and not sharp or V-shaped. He stated that once the car entered the ditch there was a weight shift to the left or driver's side and that is what caused the tire impression he saw on October 8. The effect of the shift in this instance was to place more weight on the driver's side of the car, having greater effect on the direction of the car than the wheels on the right side and, in his opinion, resulting in the driver being pressed against his door, thus resulting in a lessening of the driver's ability to control the direction of the car.

Officer Cleere indicated that, by using linear perimeter measurements and linear crush measurements, he determined that the tree penetrated 4.6 feet into the car, bowing the entire vehicle, snapping the rear axle in two, and buckling the hood. Based upon the measurements, he then calculated the impact speed of the vehicle at 52 miles per hour, using as a reference the Northwestern Traffic Institute's index of typical values for vehicles crashing into fixed objects. He also estimated the speed of the car to be 73 miles per hour when it left the road, and assumed several factors in arriving at that conclusion, including no application of the brakes to slow it down, the direction of the car, the gouges and the scrapes, as well as the damage to the car itself. He did not consider the incline of the ditch in reaching the estimated speed since, in his opinion, it was not a relevant factor. It was his opinion that the ditch, while having an effect on the operation of the car, was not the cause of this accident.

Claimant's expert, Joseph Champagne, provided the testimony and opinions which form the crux of Claimant's theories of liability. Primarily, it is alleged that the State's negligence consisted of allowing this tree to be in existence at the far edge of the drainage ditch in the right-of- way, in what he characterized as a "clear zone." Mr. Champagne testified that he became aware of the philosophy or phraseology of the term "clear zone" in the design, construction, reconstruction and maintenance of highways in the early 1960's. It came about, according to him, as a consequence of a study by General Motors involving the area a vehicle leaving the highway at a speed of 55 miles per hour would need in order to safely maneuver. The concept was to be incorporated in the design of new highways and in the redesign or reconstruction of older roadways and, according to him, he had occasion to use and rely on this philosophy during the time he was employed by the Defendant, as well as when he was employed by the State as a consultant.[4]

The philosophy of clear zone construction was to create a zone where roadside hazards and fixed objects were removed so that vehicles leaving the paved roadway were not confronted with objects or conditions that could cause serious injury to occupants. Mr. Champagne explained that, as an example, a roadside hazard could be an unguarded area with a steep slope or a creek. A fixed object, quite obviously, would be a tree or a post. While it is not possible to eliminate all potential hazards to a vehicle which leaves the highway, nonetheless, the idea was to provide as clear an area as possible to allow an errant driver as much area as possible to regain control of the vehicle safely.

Thus, Claimant's expert concluded that the removal of the culvert box and guiderail in 1990 was part of what he characterizes as a clear zone improvement, and ascribes culpability to the State for the failure to have removed the putatively offending tree. It must be noted that the State's Resident Engineer, Peter Houghton, disputes the notion that Route 414 was constructed or designated as a clear zone (Transcript - pp. 369-371). I find that Mr. Champagne's suggestion that the work done in 1962 and in 1990 constituted clear zone construction is speculative.[5] He opined that the State was negligent in the maintenance of this highway because, inter alia, he believes that when the State "reconstructed" Route 414 in 1962, it cleared the right-of-way along the westerly edge of all trees.

I find that the conclusions of Claimant's expert are not supported by the evidence. In particular, the reconstruction did not, as Claimant suggests, mandate the removal of all trees within the State's right-of-way. Rather, reconstruction plans (Exhibit 1), RC-62-24, Schedule B, Item 1- Clearing & Grubbing"- Par. No. "a" state:
All trees and shrubs within the road section and/or construction limits shall be removed as directed by the Engineer. In addition all trees within the ROW limits which are in a hazardous or otherwise unhealthy condition will be removed as directed by the Engineer. All remaining will be protected in accordance with the specifications... [emphases supplied].

The language of the reconstruction plans directed the removal of trees within the road section or construction limits, as directed by the Engineer. As to trees which were within the right- of-way limits, like the tree in question, the reconstruction plan only addresses those trees which were in a "hazardous or otherwise unhealthy condition," reserving the decision for removal to be "as directed by the Engineer." If it had been intended that every tree were to be removed, the phrase "as directed by the Engineer" would be superfluous and unnecessary verbiage, and ascribes the application of the judgment of the engineer to identify those trees which are in a hazardous or otherwise unhealthy condition. Logically therefore, its inclusion has meaning, a meaning contrary to that suggested by Claimant.

Peter Houghton, the Resident Engineer for the DOT Residency for the roadway in question, described the criteria he utilized in making decisions with respect to tree removal, to wit, if the tree were dead, diseased, significantly damaged perhaps from an ice or wind storm, or dangerous as a hazard from a traffic standpoint, it would be removed (Transcript - p. 322). Mr. Houghton testified that reviewing motor vehicle accident records from a location and checking to see if there were complaints from the public regarding, for example, near misses but no actual recorded accidents (Transcript - p. 323), could reveal a dangerous or hazardous condition. He testified that after the accident in question he made appropriate inquiries and found no complaints and no record of the tree being a highway hazard (Transcript - p.325). Claimant has presented no proof whatsoever to dispute these factual assertions. In other words, there was no history of motor vehicle accidents or complaints about the tree in question. Mr. Houghton went on to note that the trees remaining within the right-of-way were to be protected so they would not be damaged by the construction activity (Transcript - p. 334).

The clear and unambiguous conclusion that must be drawn from the plain language noted above is that there was no unequivocal mandate, but rather the express reservation to the professional engineer for the exercise of judgment as to which trees in the right-of-way were to be removed. Thus, any suggestion that liability could be predicated upon an erroneous or negligent exercise of discretion by the engineer must fail. First, the subject tree was clearly within the right- of-way, and as to that tree, we have only Claimant's expert's opinion that it was a hazard by its mere existence, not that it was in a "hazardous or otherwise unhealthy condition." It is well established that the State is accorded a qualified immunity from liability arising out of a highway planning design and can only be found liable for injuries "arising out of the operation of a duly executed highway safety plan... predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis" (Weiss v Fote, 7 NY2d 579, 589; see also Friedman v State of New York, 67 NY2d 271). Claimant has certainly failed to demonstrate that the engineer's decision not to remove the tree was unreasonable.

In any event, Claimant's expert did not believe that the tree had been there when the right-of-way was cleared in 1962 (Transcript - pp. 220-221), and that it thereafter started growing on the westerly side of the drainage ditch. Then, relying upon on the hearsay suggestion of an unidentified arborist and The American Chestnut Foundation in Vermont (Transcript - p. 221-222) that the tree in question was 20 to 40 years old based upon its 21-inch diameter, he ascribes negligence by the Defendant in the supposed failure to have cleared the tree as it began to grow in the 30 to 31 years from the purported clearing of the right-of-way in 1962 and the date of the accident. But that premise is belied by the testimony of Thomas J. Karlsen, who has owned the property at the site of this accident since 1980, and lived within two miles of the accident scene since his birth in 1954. Mr. Karlsen persuasively testified that he knew that the very tree in question had been there since he was a child (Transcript - p. 285), and furthermore that it appeared to be about the same size as when he was a child. He testified that the black walnut tree in question was the only tree south of his driveway, and that only some shrubs, at his request, had been removed from that side of his property in some 20 years (including the some 13 years from when he first owned the property until the date of the accident), and that, to his knowledge, there had been no accidents at that location during that same 20-year period. He described the mowing maintenance performed on the right-of-way by the State, on one or two occasions per year.

Liability is thus postured on the theory that there was negligence in failing to remove the tree (if it existed as a tree) in 1962 from the right-of-way, or that there was negligent maintenance in the intervening years in failing to cut down the tree while it was growing in the right-of-way. As can be seen above, the opinion of Claimant's expert does not find support in the factual evidence, and beyond that, challenges the exercise of discretion by the engineer when he did not remove the tree in 1962. Of course, Claimant's expert equivocates (or speculates) about the tree's existence in 1962, because he is uncertain of its age. But persuasive, independent and unbiased testimony provided by Mr. Karlsen, establishes to my satisfaction, that the tree did exist in a relatively similar size and girth in 1962. Moreover, Mr. Houghton, the Resident Engineer, estimated that in 1993 the tree was some 70 to 75 years old (Transcript - p. 336). Mr. Houghton also noted that while little seedlings would be periodically mowed, regular mowing would not remove existing trees (Transcript - p. 365). Thus, reliance upon a theory of negligent maintenance which hypothesizes that the State should have mowed or cut down this "young" smaller tree during its annual or semi-annual mowing must fail. The proof establishes that the tree was relatively mature and of similar size in 1962, and Claimant has failed to establish that cutting down the tree was part of standard roadside maintenance.

I note in passing that there was disagreement in estimating the speed of the vehicle, disputing the calculations made by Officer Cleere. I disagree with Mr. Champagne's theory that the vehicle was traveling at some 53 miles per hour when it left the roadway, but do not fully accept Officer Cleere's opinion that it was 73 miles per hour, a finding concurred in by Richard Church, the Defendant's expert witness. Given the distance traveled off the roadway, the friction and slowing of the vehicle as it engaged the ditch "chewing" up the ground beneath the car, the "frozen" speedometer at 55 miles per hour, and the general consensus that the speed at impact was about 47.6 miles per hour, I conclude that the speed of the vehicle was greater than the speed limit of 55 miles per hour, but less than 73 miles per hour. I find compelling the conclusion that there was no evidence of braking or any corrective action by the driver, and that the vehicle simply traveled in a straight line off the paved roadway, across the paved shoulder, and enveloped the tree.

The State has a nondelegable duty to maintain its roads and highways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, supra). As the Court of Appeals stated in Tomassi v Town of Union (46 NY2d 91), "certain risks are unavoidable. Especially in rural locales, such objects as utility poles, drainage ditches, culverts, trees and shrubbery are often in close proximity to the traveled right of way" (id. at 97 [citation omitted]). The State has fulfilled its duty to the traveling public when a highway is reasonably safe for those who obey the rules of the road, notwithstanding that almost any road can be made safer; to hold otherwise would make the State an insurer of its highways and impose upon the State a duty not contemplated or required by law (id.).

Where circumstances dictate, the State must protect motorists from culverts and other foreseeable hazards located immediately adjacent to the shoulder (see, Stiuso v City of New York, 87 NY2d 889, and Muller v State of New York, 240 AD2d 881 [where the State had no duty to protect the motorist from culvert located "well beyond" the shoulder]). In assessing whether the State was negligent, one must bear in mind that certain risks are unavoidable and that objects such as drainage ditches and culverts are often located in close proximity to the traveled way, but nevertheless pose no unreasonable danger for drivers who exercise reasonable care (Tomassi v Town of Union, 46 NY2d 91, supra).

I find that the paved roadway and shoulder were more than adequate for safe passage, and that travel beyond those limits was neither contemplated nor foreseeable (Tomassi v Town of Union, supra; Guy v Rochester Gas & Elec. Corp., 168 AD2d 965, lv denied, 77 NY2d 808; Adamy v Ziriakus, 199 AD2d 1018, lv denied 83 NY2d 755; Warren v New York Tel. Co., 238 AD2d 961, lv denied 91 NY2d 805). There was no proof of any accidents in the vicinity of the tree or that the physical layout of the roadway made it particularly likely that the drainage ditch would cause or contribute to accidents. For attentive motorists, the existence of the drainage ditch and the tree created no unreasonable danger, even though they were not protected by a guide rail.

To impose a duty upon the State in these circumstances would effectively require it to place guiderails or other devices on every State road where a drainage ditch, hazard or a fixed object lies just beyond the perimeter of the shoulder (see generally Russo v State of New York, Ct Cl, #2001-013-506 [Claim No. 96902], April 26, 2001, Patti, J.). To accept Claimant's theories would require me to disregard the parameters that the Court of Appeals set down in Tomassi v Town of Union (46 NY2d 91, supra), and would make the State an insurer of its highways. The law does not support the imposition of such an unreasonable and cost-prohibitive burden, and it is a step I decline to take.

I would be remiss in failing to recognize Claimant's fortitude, remarkable perseverance and inner strength. As a result of this accident, he has been rendered a hemiplegic which affords him limited use of the muscles on his right side, and very little use of the muscles on his left side. Despite the magnitude of his injuries, Claimant was graduated from Onondaga Community College, and then from LeMoyne College in May, 2000, with a Bachelor of Science degree, summa cum laude. At the time of trial he was employed as a customer service representative by Time Warner Cable.

I have labored over this decision for an extended period of time to contemplate the potential theories of liability put forth by the Claimant. But at the end of this period, upon reflection and review, I am constrained to find that the State engaged in no culpable conduct. I find that the proximate cause of this horrific accident, and Claimant's injuries, was the combination of the speed of the vehicle, driver inadvertence or inattentiveness, along with an inability to control the vehicle.

While I am constrained from holding the State of New York answerable in damages, I am not constrained from expressing my admiration for someone who has achieved so much in such a short period of time, with tremendous obstacles in his path. My words here may be of little solace to Claimant and his family, but nothing I could say or do will change the reality of his injuries.

That having been said, the claim must be, and hereby is, dismissed.

All other motions not heretofore ruled upon are now denied.


December 31, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1] No request was made seeking a reduced burden of proof due to Claimant's memory loss as a result of the accident. There is little question of material fact with respect to the occurrences on the day of the accident, and, in any event, Claimant's theories of liability are unaffected by his limited recollection of the events of the day.
  2. [2] Claimant was unaware of whether he was driving, with that fact having been ascertained by police officials who investigated the accident. Szlamczynski did not testify at trial, but on May 31, 1995, he pled guilty to "1192.4 Driving While Impared [sic] Drugs and 1180E Speeding," and was sentenced to a $90.00 surcharge, 60 days incarceration and 3 years on probation (Exhibit G).
  3. [3] The report was supplemented later to reflect that one of passengers, Michelle Carey, died from her injuries three days after the accident.
  4. [4] He left permanent employment with the State's Department of Transportation (DOT) in 1960.
  5. [5] See the discussion of Tomassi v Town of Union (46 NY2d 91, infra).