This claim for personal injury arises from a one vehicle automobile accident
which occurred on March 2, 1996 on Route 82 approximately 2/10 of a mile south
of its intersection with Verbank Road in the Town of Union Vale, New York. The
trial was bifurcated and this decision deals only with the issue of
At trial, it was established that on March 2, 1996 claimant was the owner of a
1988 Toyota automobile (see Exhibit D). On that date, claimant's husband was
driving the vehicle, claimant was a passenger in the front seat and their three
children were sitting in the backseat. They were traveling north on Route 82
and at the time the trip commenced, the roads were dry and it was not snowing.
However, after they had traveled a few miles snow began falling and accumulating
on the road. There was approximately ½ inch to one inch of snow on the
road at the time of the subject accident. The O'Hares had traveled 5 to 12
miles at the time of the accident
, which occurred at approximately 12:00
Mr. O'Hare testified that he was unable to see the yellow center line of the
road or the white edge line on the right side of the
due to snow accumulation so he stayed as far to the right as he could. He
stated that as the vehicle was proceeding into a slight left-hand curve, he
could feel the car pulling to the right and continuing straight rather than
turning into the curve. Despite increased steering correction to the left, the
car did not respond. He stated that he tried steering out of it and tried
tapping the brakes, both to no avail.
The witness stated he was traveling about 30 MPH when the car first would not
respond and had slowed to about 5 MPH at the time of the impact. The car went
off the road and down into a ditch. According to Mr. O'Hare, the front bumper
of the vehicle hit the bottom of the ditch, the back of the car went up in the
air and the car tipped over on its right side so that the passenger door was
facing the ground and the driver side door was facing up. Mr. O'Hare stated
that the tires were facing west - toward the highway - and the roof was facing
In the days after the accident, Mr. O'Hare returned to the scene of the accident
on several occasions and took several photographs of the area (Exhibits 1 -
On cross-examination, Mr. O'Hare stated he believes his right tires were over
the fog line but he isn't sure because the line was covered by snow. He also
stated that his car may have been slipping because it felt like the right front
tire did not have any traction. Portions of Mr. O'Hare's deposition transcript
were also read into the record, in which he stated that the vehicle slid on the
slippery surface and went straight off the road. He further stated that he had
spoken with claimant's expert witness, Mr. Spratt, and had learned of the
expert's theory that "negative banking" caused the accident.
Mr. O'Hare also admitted having a discussion with the State Trooper who
investigated the accident. While he would not deny telling the officer that the
car slipped on the surface of the road and went off the roadway, he denied
telling the officer that he was aware that his tires were not in good condition.
He could not remember the condition of his car's tires on the day of the
James Spratt, who appeared on claimant's behalf, testified that he is a
graduate of Champlain College for Civil Engineering and received his
Professional Engineer's license in New York State in 1962. Mr. Spratt worked
for the New York State Department of Transportation (hereinafter DOT) and its
predecessor agency, the Department of Public Works, for 16 years. He was also
the Dutchess County Commissioner of Public Works for 19 years and is currently
engaged in private practice. He has appeared before local planning boards and
has testified in Court proceedings. Mr. Spratt was accepted by the Court,
without objection, as an expert witness in the field of engineering.
The evidence established that Route 82 is a two-lane highway running generally
in a north-south direction. It was originally constructed in 1929 as an 18 foot
wide highway consisting of two 9 foot wide travel lanes. The travel lanes were
widened in 1976 to 11 feet in each direction. Mr. Spratt testified that he
visited the accident location and measured the paved shoulder of the road (i.e.
the area to the right of the fog line) as ranging from 3 feet to 3.3 feet wide.
He stated that the ditch runs parallel to the east side of Route 82 and varies
from 2 feet to 10 feet from the edge of the pavement. The depth of the ditch
also varies but is roughly 4 feet. The witness stated that as one travels north
on Route 82 at the area of the accident, the right edge of the road is higher
than the center of the road because of the left curve to the west but the
shoulder drops off to the east and has a negative bank to the ditch line. The
negative slope or bank is 1/8" per foot down from the travel lane. Mr. Spratt
testified that the driving lane was 11 feet wide, not 12 feet as set out in the
standards (see Exhibit E, DOT Highway Design Manual [hereinafter DOT Design
Manual]). Also, he testified that the paved shoulder was approximately 3 feet
wide instead of the 8 feet required by the standards (Exhibit E). Mr. Spratt
concluded that the accident was caused by a lack of proper lane width and
shoulder area which afforded no recovery area for a vehicle to redirect itself
and regain its position on the roadway at the accident location.
He further opined that due to the negative bank of the shoulder, the driver
lost all benefit of the positive banking of the roadway on the curve resulting
in the vehicle being drawn off to the right and into the ditch. However, Mr.
Spratt admitted that the banking of the driving lane in the turn in question, as
well as the negative slope of the shoulder, were both within the standards set
out in the DOT Design Manual (see Exhibit E). Mr. Spratt opined that a person
driving on a road in which the center line and lane edge line were obscured
would drive towards the right. Conversely, he also stated that the obvious
ditch line on the right side of Route 82 at the subject location would warn a
person to avoid that area.
On cross-examination, Mr. Spratt reiterated that Route 82 was constructed in
1929. He stated that based upon the DOT Road History (Exhibit C), the roadway
was widened from 18 feet to 20 feet in 1959 and from 20 feet to 22 feet in 1976.
There were also several maintenance projects performed where additional asphalt
was placed on the roadway. In Mr. Spratt's opinion, none of this work
constituted the reconstruction of Route 82. He conceded that the DOT Design
Manual standards (Exhibit E) upon which he relied do not apply to the subject
portion of the roadway since the road was neither newly constructed nor
reconstructed. The witness stated that his opinion was based upon his own
conception of good engineering practice which would include improving highways
to meet current standards.
At the conclusion of Mr. Spratt's testimony, the claimant rested and the State
moved to dismiss based upon a failure to establish a prima facie claim. The
Court reserved decision on the motion.
The State called Matthew Schlottmann. He testified that he has been employed
by the New York State Police for eight years; six as a Trooper and the last two
as a Sergeant. The witness received training at the State Police Academy in
accident investigation and he has performed numerous investigations as part of
his duties as a Trooper.
The witness investigated the subject accident on March 2, 1996 and prepared a
Traffic Accident Report (Exhibit D). He stated that when he arrived at the
scene, emergency personnel were already attempting to extricate people from the
overturned car which was facing south
and was on the east shoulder adjacent to the northbound lane of Route 82. He
observed the tires on the vehicle and determined that they were not in
accordance with the requirements of the Vehicle and Traffic Law of the State.
Officer Schlottmann acknowledged on cross-examination that the Accident Report
(Exhibit D) does not mention bald, defective or inadequate tires.
Vincent Lu, who testified on defendant's behalf, stated that he has a degree in
Civil Engineering from SUNY Buffalo and is a licensed Professional Engineer in
New York State. He has been employed by DOT for 31 years and is currently a
Civil Engineer III in DOT's Design Group in the Poughkeepsie office and is
Design Manager of the Design Services Unit. Mr. Lu was accepted by the Court,
without objection, as an expert witness in the field of engineering. He
testified that the DOT Design Manual standards (Exhibit E), which Mr. Spratt
relied upon, do not apply to the roadway at issue, nor to the maintenance
repaving done on this portion of the road. He also testified this roadway had
not been reconstructed and none of the maintenance projects shown in the road
history (Exhibit C) were "reconstruction projects" as defined in the DOT Design
Manual standards (Exhibit E) so as to require that the road be brought to
Mr. Lu testified that widening the driving lane and the shoulder to 12 feet and
8 feet, respectively, (as Mr. Spratt suggested) would involve the blasting of
rock and replacing the adjacent culvert which would cost millions of dollars.
Such major expenditure cannot be justified in a maintenance project.
Furthermore, there is no justification in the records (whether by traffic
volume, accident history or other criteria) for doing such extensive work at
Mr. Lu testified that the role of the DOT on roads that are not in need of
reconstruction or rehabilitation is to maintain the existing features of the
roadway in a safe operating condition. Mr. Lu testified that a vehicle
traveling 30 MPH around the curve to the left in question, even considering an
icy roadway (which is more slippery than a snow covered roadway), should be able
to safely negotiate the turn even if all four car wheels were on the negative
slope of the shoulder. Contrary to the opinion of Mr. Spratt, Mr. Lu opined
that having two wheels on the shoulder and two wheels on the super elevation of
the driving lane would make it possible to stay in the driving lane even at
speeds greater than 30 MPH. Mr. Lu disagreed with Mr. Spratt's assumption that
a driver faced with snow obscuring the painted lines would drive to the right.
He stated that considering the ditch line that is evident in the subject area, a
person would try to stay toward the center of the road to avoid that
Mr. Lu also testified that the drainage ditch lines were part of the "as built"
plans for the road in 1929 (see Exhibit A) which were certified in compliance
with applicable rules and regulations at the time of the construction.
Furthermore, Mr. Lu testified that filling in the ditch would require provision
of additional drainage. In this matter, Mr. Lu sees the responsibility of the
DOT as being limited to maintenance of the ditch in an operating condition. No
evidence was presented by claimant to show that the drainage ditch was not so
Mr. Lu also explained that during the repaving projects done in 1959 and 1976
the traveled lane was widened into11 foot travel lanes and the shoulder was
reduced from 4 feet to approximately 3, with only an additional foot of pavement
added. He considered it good engineering judgment to perform those slight
improvements so that a vehicle could better stay within the travel lanes. Mr.
Lu opined there are no features of the roadway in question that contributed to
the cause of the subject accident.
Claimant called Mr. O'Hare as a rebuttal witness. He testified that following
the accident the car was not lying on its roof as Trooper Schlottmann testified.
He also disagreed with the Trooper's testimony that the car was facing
southbound following the accident. Mr. O'Hare said it was facing northbound and
was lying on its right side - the passengers' side. However, on
cross-examination, Mr. O'Hare admitted, after reviewing photographs of the car
taken after the accident (Exhibits H-1 and H-2) and seeing the damage to the
driver's side fender, the front grill area and the hood that the car may have
very well come to rest on the driver's side rather than the passenger side as he
This patent damage could only occur if the car had reversed direction to face
southbound. This, in turn, causes the Court to question the speed of the
vehicle at the onset of the incident and at the point it left the
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). This duty extends to
conditions adjacent to the highway and once the State undertakes to provide a
shoulder alongside the roadway, it must maintain that shoulder in a reasonably
safe condition for foreseeable uses, including those uses resulting from a
driver's negligence or an emergency (Stiuso v City of New York
, 87 NY2d
889; Bottalico v State of New York
, 59 NY2d 302, 305). On the other
hand, where the paved road surface is "more than adequate for safe public
passage", travel beyond those limits on unimproved land adjacent to the roadway
is generally not contemplated or foreseeable and therefore the municipality is
under no duty to maintain it for vehicular traffic (Tomassi v Town of
, 46 NY2d 91).
Claimant asserts that it was the lack of "recovery area" or shoulder which was
not readily apparent to the vehicle's driver, due to the snow conditions, which
was the cause of the subject accident (see Claimant's Post-Trial Brief, Page 8).
Claimant's expert testified that the recovery area in the vicinity of the
accident scene averages three feet in width not the recommended eight foot wide
Claimant asserts that the facts of the instant claim are similar to the facts
Stiuso v City of New York
(87 NY2d 889 revg
210 AD2d 470). The
Court of Appeals in Stiuso
reversed an Appellate Division order
dismissing the complaint of a driver whose vehicle purportedly became caught in
the "swale", defined as a paved concrete strip abutting the asphalt roadway.
The Court held that the Appellate Division's reliance on Tomassi
misplaced, as the Court could not have determined as a matter of law that the
accident was caused by "a condition existing on unimproved land". Consequently,
whether defined as part of the shoulder or as a paved gutter, it is neither
extraordinary nor unforeseeable that a motorist using the shoulder in a
contemplated manner could become stuck in a depressed area (see, Pollard v
State of New York
, Ct Cl, filed August 18, 1991, Lyons, J., Claim No. 70119
[the State's duty with respect to "the shoulder and its immediate environs"
includes paved gutter]). In the subject case, however, there is no evidence
that claimant's vehicle became stuck in a swale or depressed area. The
testimony of claimant's expert was that the vehicle was on the negative slope of
The Court cannot conclude from the evidence adduced at trial that the shoulder
or its negative slope constituted an unreasonably dangerous roadside hazard so
as to require the State to take remedial action. Both experts agreed that this
1/8" slope was minimal and within reasonable standards. Further, there was no
credible evidence adduced at trial to establish that the claimant's vehicle had
entered upon the shoulder before the car started to slide off the road. Mr.
O'Hare testified that the tires of the right side of the car were over the fog
line and on the shoulder, however, he also stated that he could not see the fog
line because of the snow on the road.
In addition, the demonstrative evidence does not support claimant's assertion
that the right tires got caught on the negative slope. Exhibit 1 shows two tire
tracks going directly off the paved roadway onto the dirt portion of the
shoulder. There is no indication that the right tires were caught in a
depression or other dangerous roadside hazard. The vehicle path shown in the
photographs is quite direct from the roadway over the shoulder toward the
The State is not an insurer of the safety of its roadways and its duty is
fulfilled so long as a highway may be said to be reasonably safe for people who
obey the rules of the road, taking into consideration such factors as the
traffic conditions apprehended, the terrain encountered, fiscal practicality and
a host of other criteria (
Tomassi v Town of Union
, 46 NY2d 91, 97, supra
). As the Court of
Appeals recognized in Tomassi
, 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]). Furthermore, the State is not
obligated to undertake expensive reconstruction simply because standards have
changed over the years (Holscher v State of New York
, 59 AD2d 224, 227,
46 NY2d 792; Van De Bogart v State of New York
, 133 AD2d
974). Absent a hazardous condition of which the State has notice, the State's
duty is met when the highway comports to the standard applicable at the time of
the construction or reconstruction (Cipriano v State of New York
AD2d 169, lv denied
79 NY2d 756).
Here, both experts agreed that this section of Route 82 met the design
standards applicable when the road was constructed in 1929 and that the road had
not been reconstructed since then. In the absence of such "reconstruction
project", the State was under no duty to improve the road to current standards.
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 (
Tomassi v Town of Union
, 46 NY2d 91, supra
It is claimant's burden to establish that the State was negligent and that such
negligence was a proximate cause of the accident (see,
Bernstein v City of New York
, 69 NY2d 1020; Marchetto v State of New
, 179 AD2d 947). Liability will not attach unless the State had either
actual or constructive notice of a dangerous condition and then failed to take
reasonable measures to remedy it (see, Brooks v New York State Thruway
, 73 AD2d 767, affd
51 NY2d 892; Valentino v State of New
, 62 AD2d 1086).
Beyond that, 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; Friedman v State of New York
Claimant asserts that the State's expert, Mr. Lu, was unable to testify as to
what engineering judgment was exercised by the State in 1959 and 1976 when Route
82's travel lanes were widened from the original 9 foot travel lanes to 11 foot
travel lanes and the shoulder was reduced from a 4 foot to a 3 foot width.
However, there was no testimony adduced or evidence introduced at trial to
establish that the above mentioned work or the additional one foot of shoulder
added to the width of the travel lane in 1976 was work requiring that a study be
preformed. In Mr. Lu's opinion this work was merely maintenance. In addition,
since Mr. Spratt agreed that Route 82 was not reconstructed, he also implicitly
recognized that these projects were maintenance only.
Further, no evidence was presented to establish that widening Route 82 by the
additional foot in 1976 changed the bank of the curve or the geometry of the
roadway to force a car going around the subject curve to head to the
Thus, absent any proof to establish lack of due care in the design of the
shoulder, the Court finds the State is entitled to the qualified immunity
Weiss v Fote
(7 NY2d 579, supra
, at 589).
Mr. Spratt also expressed the opinion that during the repaving of the road in
1959 and 1976, the ditch should have been filled in with broken stone so as to
bring the ditch line up to the
grade of the shoulder, paved and unpaved, thereby increasing the recovery
area. However, there was no testimony that an increase in the recovery area by
filling in the ditch would have added sufficient recovery area to prevent an
accident. In fact, when asked by the Court if he could identify the point on
his diagram of the roadway in question where the accident occurred, Mr. Spratt
admitted that he could not. Mr. Spratt's testimony regarding his assertion that
filling the ditch would have avoided an accident on this occasion is pure
speculation and not supported by the evidence. The Court, therefore, does not
accept his opinion on this point (see, Shaw v Binghamton Lodge No. 852 B.P.O.
, 155 AD2d 805).
Based upon all the evidence presented at trial, the Court cannot conclude that
this unimproved ditch constituted a dangerous condition. As the Court of
Appeals stated in
, "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 [citation omitted]"
(Tomassi v Town of Union
, 46 NY2d 91, supra
, at 97;
Rager/Lehner v State of New York
, Claim Nos. 98606 and 98607, filed
December 20, 2000, Read, P.J.). 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 (Tomassi v Town of Union
, 46 NY2d 91,
, the Court were to deem this ditch a dangerous condition,
claimant failed to establish by a preponderance of the credible evidence that
the State had either actual or constructive notice of this condition. The
evidence presented established that only one other accident occurred in this
area of Route 82 and it was not of the same or similar nature as claimant's.
Thus, there is no basis in the record upon which the Court could impute to the
State the requisite notice of defect (Sawyer v Dreis & Krump Mfg.
, 67 NY2d 328, 336; Bostic v State of New York
, 232 AD2d
This Court finds there is nothing about the construction and/or maintenance of
the travel portion of the highway and its adjacent shoulder which can be shown
to have caused claimant's vehicle to leave the safety of the driving lane and
enter the unimproved ditch (
Rager/Lehner v State of New York
; Williams v State of
, Claim No. 98975, filed January 10, 2002, Lebous, J.; Russo v
State of New York
, Claim No. 96902, filed May 7, 2001, Patti, J.). Tragic
as the results of this accident have been to claimant, the vehicle leaving the
traveled portion of the roadway was not due to any negligence attributable to
the defendant, State of New York. It is just as likely that the proximate cause
was some combination of speed, driver misjudgment and, possibly, a bald tire.
In any event, it is not necessary that this Court assess and determine these
In sum, claimant has failed to establish this accident was proximately caused,
in any way, by the negligence of the State and therefore, there is no basis for
the imposition of liability against the State. The claim is hereby dismissed.
All motions made at trial, upon which the Court reserved decision, are now
denied. The Chief Clerk is directed to enter judgment accordingly.