New York State Court of Claims

New York State Court of Claims



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.

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, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 20, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

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 height limitation.

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 loads.

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 booths.

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 booth.

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 following results:

Plaza 1: Right 14' 9" Plaza 2: Right 14' 8½"
Middle 14' 8" Middle 14' 7½"
Left 14' 8½" Left 14' 5"

Plaza 3: Right 14' 7½"
Middle 14' 4"
Left 14' 3"

He also measured the feelers. There are eight on each bar and from right to left he obtained the

following results:
Plaza 1: 14' 3" Plaza 2: 14' 3" Plaza 3: 14' 2"
13' 7¾" 13' 9" 13' 7½"
13' 7" 13' 7½" 13' 7"
13' 7" 13' 8" No feeler
13' 7" 13' 9" 13' 6½"
13' 7½" 13' 8" 13' 6½"
14' 2" 13' 7½" 13' 7"
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 hang.

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 measurement.

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 [2004]). 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, 96 AD2d 1048, 1049; PJI 3d 2:27 [2004]). Clearly, Claimant's conduct was negligent. The issue now turns to whether Defendant's conduct was negligent.
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 duty (
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 Claimant.
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 ACCORDINGLY.

December 20, 2004
Syracuse, New York

Judge of the Court of Claims