MALTAIS v. STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY,
#2004-018-449, Claim No. 94390
The law is clear that it is the duty of the operator of a vehicle to know the
height and weight of the load on his truck and to make sure it falls within the
statutory limitations. The claim is DISMISSED.
Footnote (claimant name)
STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name)
DIANE L. FITZPATRICK
GUSTAVE J. DeTRAGLIA, JR., ESQUIRE
Attorney General of the State of New York
By: GORDON J. CUFFY, ESQUIREAssistant Attorney General
December 20, 2004
See also (multicaptioned
Claimant was injured while driving a tractor-trailer on the New York State
Thruway on May 1, 1996. He has alleged that the State and/or Thruway Authority
were negligent for allowing him to enter the Thruway with a vehicle that
exceeded the maximum allowable height. His vehicle hit the underside of a
bridge causing an immediate speed reduction from which he suffered injuries.
The case was bifurcated and this decision relates solely to liability.
Claimant had been trained to drive tractor-trailers at the Chauffeur's Training
School in Albany, New York. He was issued a Class A license (now a CDL) and
drove trucks for a living for approximately 10 years prior to the accident in
question. He also spent some time as a driver/trainer training new
tractor-trailer drivers. He acknowledged that as part of his training he
learned that it was the truck driver's responsibility to know the height of the
trailer load being pulled. However, he also said 90% of his driving involved
box vans which were a standard height of 13 feet 6 inches; the maximum height
allowed on the Thruway. Claimant testified he was aware of the 13 foot 6 inch
On May 1, 1996, Claimant had completed one delivery and was asked by his
employer, Metal Transportation Systems (hereinafter MTS), to haul flatbed
trailers from Syracuse to Ohio. There were three other drivers that would
comprise the convoy. They picked up the trailers at Syracuse Trailer Systems
(hereinafter referred to as STS). When they arrived at STS they learned the
usual trailer loader was unavailable, so STS called in a new person to load the
flatbed trailers to be delivered onto the flatbed trailers for transport.
There were two trailers for delivery per vehicle. The trailers were already
stacked in pairs when the drivers arrived. After they were loaded onto the
transporting flatbed, one of the other MTS drivers questioned the height. He
was informed by the STS employee that the trailers were pre-loaded on top of
each other and that was the way the flatbeds had to be transported. Although
Claimant and the other MTS drivers thought the load looked too high, no one
measured the height of the load.
The MTS drivers left for Ohio via the New York State Thruway. Claimant was the
second vehicle in the convoy when they reached the Thruway toll booths at Exit
39. Over each entry lane of the Thruway is a height bar consisting of a metal
bar about 10 feet in width suspended from the toll booth by chains. Hanging
from the bar are feelers: thin wires which hang down approximately 6 to 8
inches. Claimant said the first driver radioed the three drivers behind him
that his load had hit the feelers. When he stopped to get his ticket from a
female toll collector, Claimant's load also hit the feelers as did the following
two trucks. Claimant testified that he stopped next to the booth and exited his
truck to see if the feelers were touching the top of his load, and they were.
After the drivers received their tickets, according to Claimant, all four
pulled over to the side before entering the Thruway proper and conversed with
the toll collectors and another person that came out of the nearby building.
Claimant said it was determined that hitting the feelers was not an indication
that the trailer was too high; one would have to hit the bar itself to be above
the legal height. Again, no one actually measured any of the trailer
Claimant's was the first truck to enter the Thruway and he was traveling at or
near the speed limit of 65 mph when he came to the first overpass. He said the
top of his trailer hit the bottom of the overpass and his truck slowed almost
immediately to 5 mph. He called to the other drivers via his radio telling them
he hit the bridge. The second truck, driven by David Louden, also hit the
bridge but not as hard. The other two drivers were able to stop in time before
the bridge. Claimant said he was quite shaken up. Someone radioed for
assistance and a State Trooper came to the scene. MTS sent an employee who
then lowered the dolly wheel on the flatbeds that were being transported. The
two trucks that did not hit the bridge continued on their scheduled route. Both
claimant and Mr. Louden returned to their place of employment in Oswego.
On cross-examination, Claimant said he knew he could receive a traffic ticket
or hit a bridge if his load was too high, but he relied upon the employee at STS
and the toll collectors that the load did not violate the height restrictions.
Claimant did not measure the load nor did he ask anyone else to do so.
The Claimant also called several New York State Thruway Authority (hereinafter
NYSTA) employees who were working the night of the incident. Mr. Dana Walker
testified that he had been employed by the NYSTA on and off for 20 years as a
toll collector. He recalled training in the toll booth and was aware of height
restrictions on the Thruway although he could not recall the maximum height.
There is a card stating the limit in each booth, and he relies upon the card
when the need arises.
Mr. Walker described the height bar but was unsure about its height or the
height of the feelers. As of May 1, 1996, it was his belief that the metal bar
was the indicator of the maximum height allowed, but he now knows it is the
feelers. He recalled a truck going through his toll booth on that day, and he
saw the feelers move. He called a co-worker, Jill, on the intercom to see if
she could tell the height of the vehicle. She could not. Mr. Walker said he
had let other trucks on that had touched the feelers.
In contrast to Claimant's testimony, Mr. Walker said he did not speak with the
driver of the truck and no one left the toll booths to speak with the drivers.
Nor were the toll booths shut down as Claimant had testified. He did not notice
Claimant or any other trucks pulled over after passing through the toll
Todd Summerson was also a toll collector working on the night in question. He
testified that the feeler wires are considered part of the height bar, so
contact with them is contact with the bar. He did not recall leaving his booth
to speak with anyone that day or to check the height of any vehicle. In
general, he said if a truck hits the height bar, the collector is to stop the
truck and call dispatch, who may in turn call the troopers to come and measure
the height of the truck.
Jill Blair Bertolini was also working that night, and testified about her
recollection of events. She didn't recall a conversation with Mr. Walker or
with any truck drivers. She remembers hearing about a truck hitting the bridge
but did not remember any trucks hitting the feelers upon entering the Thruway at
Toll Plaza 39 on May 1, 1996. She has seen maintenance crews measure the height
bar and feelers regularly but could not be specific about the dates. She had
never seen any maintenance crews repairing the height bars in any way. No one
shut down the Thruway entrance that night nor did Ms. Bertolini leave her toll
Claimant also called an engineering expert, Eugene Camerota. He also described
the height bar and stated he had gone to Toll Plaza 39 to take measurements on
November 12, 2002. He took photographs of the area and the height bars, and he
measured the bars on the three entry lanes.
Defendant objected to his testimony and the photographs, on the basis of
relevance, due to the time which had elapsed since the incident. The Court
received the photographs and allowed the testimony.
Mr. Camerota started his measurements at the entrance on the far right which he
called Plaza 1, the next entrance moving left was Plaza 2 and the third, Plaza
3. He measured each metal bar on each end and in the middle and obtained the
Plaza 1: Right 14' 9" Plaza 2: Right 14' 8½"
Middle 14' 8" Middle 14' 7½"
Plaza 3: Right 14' 7½"
Left 14' 3"
He also measured the feelers. There are eight on each bar and from
right to left he obtained the
Plaza 1: 14' 3" Plaza 2: 14' 3" Plaza 3: 14' 2"
14' 3" 14' 13' 8½"
Based upon these measurements, Mr. Camerota opined that a truck
exceeding the maximum height of 13' 6"may not hit the feelers when entering the
Thruway, but a truck that does hit them should not be allowed on the Thruway.
He also felt that the only person in a position to notify the driver that his
truck has hit the feelers is the toll collector.
On cross-examination, he said factors such as wind and weather would probably
not affect the height of the bar or feelers over time but gravity might.
However, that would only make the bar lower to the ground.
Claimant also called one of the other truck drivers, David Louden, who
confirmed Claimant's account of the events with several exceptions. Instead of
Claimant being the first truck on the Thruway, Mr. Louden testified that
Claimant was the second. The first truck had no problem with hitting the
feelers or the bridge. Nor did Mr. Louden recall all of the drivers stopping
and discussing the height of the load before proceeding onto the Thruway proper.
He did note that three people came over and spoke to Claimant at the entrance
booth, but he was not part of the conversation.
The State called William Rinaldi, the Deputy Director of Operations for the
Thruway Authority. He said toll collectors are trained to check the height of
vehicles by using the feelers as the legal height; however, on
cross-examination, he said the manual refers to the height bar not the feelers,
and someone could mistakenly read that to mean the bar from which the feelers
The examination before trial of Mary Vosler was submitted on behalf of the
State. She, too, worked at the toll booths the evening of the accident but had
no knowledge of what occurred until days later. She was trained to stop any
vehicle which hit the feelers of the height bar and to call the State Police for
The Defendant moved for dismissal at the close of Claimant's case and the Court
reserved decision. The Defendant's motion is now granted.
It is Claimant's position that he was misled by the toll booth collectors into
believing that his trailer met the maximum height restriction. He further
argues that his violation of Vehicle and Traffic Law § 385, which restricts
the height of a vehicle to 13' 6" is not, in this case, negligence per se
because he exercised reasonable care in trying to comply with the statute.
The Court will address Claimant's second argument first. Violation of a
statute that establishes a specific safety duty constitutes negligence per se
Elliott v City of New York,
95 NY2d 730, 734). Vehicle and Traffic Law
§ 385(2) states:
[t]he height of a vehicle from under side of tire to top of
vehicle, inclusive of load, shall be not more than thirteen
and one-half feet. Any damage to highways, bridges or
highway structures resulting from the use of a vehicle
exceeding thirteen feet in height where such excess height
is the proximate cause of the accident shall be compensated
for by the owner and operator of such vehicle.
A reading of the statute and a review of prior judicial interpretation make it
clear that a statutory duty of care was intended by the legislature in enacting
§ 385(2) and a violation establishes negligence as a matter of law (
see State of New York v Gage,
53 AD2d 794; New York State Thruway
Auth. v Maislin Bros.,
35 AD2d 301; Ebasco Services, Inc. v Pacific
Intermountain Express Co.,
398 F Supp 565; PJI 3d 2:26 ). However,
where there is evidence that one's conduct in violating the statute was
reasonable, i.e., reasonable care was exercised, the probative evidence of the
statutory violation may be overcome. Here, Claimant has come forward with no
proof of justifiable conduct. He acknowledged that as the driver, it is his
responsibility to make sure his transporting load meets the height restrictions.
He testified he was concerned about the height of the load while at STS,
nonetheless, he took no action to measure the loaded trailer or to have someone
check the height of the load. He went onto the Thruway despite hitting the
feelers and when he approached the first overpass, he proceeded at the statutory
maximum speed, rather than slowing down to insure safe passage under the bridge.
The facts refute Claimant's position that he "exercised reasonable care" in an
effort to comply with the statutory provision (Aranzullo v Seidell,
AD2d 1048, 1049; PJI 3d 2:27 ). Clearly, Claimant's conduct was negligent.
The issue now turns to whether Defendant's conduct was
In order for Defendant's conduct to even be considered negligent, the analysis
must begin with whether the toll booth operator owes a duty to the truck driver
to, in effect, protect him from his own negligence and prevent him from entering
the Thruway with a truck that exceeds the maximum permissible height. All of
the toll booth operators who worked the evening of May 1, 1996 testified at
trial or were deposed and their deposition testimony admitted into evidence.
Most of those toll booth operators testified that they were trained to direct
any truck driver whose vehicle touched the tines of the height bar to pull over
so that the State Police could be contacted for measurement of the vehicle
before the vehicle enters the Thruway. Their duty is to the State, that is the
public in general, to prevent damages to the Thruway infrastructure. No duty is
owed to the specific driver, unless the toll booth operator assumed a special
see Hosa v State of New York,
75 AD2d 665; Parvi v City of Kingston,
41 NY2d 553, 559). Despite Claimant's testimony that he and the other
drivers engaged in a fifteen minute or longer discussion with the toll booth
operators that evening regarding whether his vehicle exceeded the height
restrictions, no one other than claimant recalled having any such conversation.
Under the facts as the Court finds them, no special duty was owed to this
The law is clear that it is the duty of the operator of the vehicle to know the
height and weight of his load and to make sure it falls within the statutory
limitations (Vehicle and Traffic Law § 393). Claimant failed to do this,
and it is because of his negligence alone, as between these two parties, that he
was injured. The claim must be DISMISSED. LET JUDGMENT BE ENTERED
Syracuse, New York
HON. DIANE L. FITZPATRICK
Judge of the
Court of Claims