In this claim, claimants Joseph Magari and Shirley J. Magari seek recovery for
property damage resulting from the alleged negligence of the State. Claimants
allege that employees of the Department of Transportation improperly excavated a
drainage ditch adjacent to their property, subsequently causing flooding of
their property and resulting in the loss of muck soil from their farming
operation. Claimants allege that this flooding of their property constituted a
trespass by the State.
The trial of this claim was bifurcated, and this decision therefore deals
solely with the issue of liability.
At trial, claimant Joseph Magari
testified that in 1995, he and his wife acquired a parcel of real estate,
consisting of approximately 7.9 acres, located along the north side of New York
State Route 49, west of Central Square in Oswego County. He testified that
according to a survey (see Exhibit 1), this property had frontage along Route 49
of 502.03 feet. He further testified that he and his wife acquired this
property with the intent of eventually converting the property to muck farming.
He testified that this parcel had not been farmed for approximately
30 years. As a result, prior to farming this property, it would be
necessary to clear the land of underbrush and woods.
In 1997, prior to clearing this property, claimant contacted the State
Department of Transportation and requested that the State clean out a drainage
ditch which ran along the north side of Route 49, adjacent to his property.
Claimant testified that he spoke with Mr. Shirley of the Department of
Transportation, who examined the ditch with claimant. Mr. Shirley then advised
claimant that the State did not intend to proceed with any excavation work on
this ditch. Even though his request was denied by Mr. Shirley, claimant
testified that he contacted the Department of Transportation on several more
occasions requesting excavation of this drainage ditch.
Testimony at trial established, without dispute, that this particular drainage
ditch drained in a westerly to easterly direction, and that it then connected
with another ditch which drained from a south to north direction. Testimony
also established that in addition to draining surface water from Route 49, the
purpose of this ditch was also to drain water from property on the opposite side
of Route 49, which drained into a culvert under the road and then into the
Claimant testified that in March, 2000 he began to clear this land of brush and
vegetation in order to prepare it for muck farming. On May 8, 2000 claimant
contacted the Department of Transportation once again and spoke with Joseph
Szczerba, the resident engineer for the Department of Transportation in Oswego
County, and requested that the drainage ditch be cleared since he was ready to
commence his farming operation on the adjacent property. In response, Mr.
Szczerba, relying upon Mr. Shirley's prior determination, advised claimant that
the department was not required to excavate this ditch.
Even though his request was denied by Mr. Szczerba, claimant continued to make
several more requests to have this drainage ditch excavated, even to the point
of contacting a member of the New York State Assembly to complain about the
Department of Transportation's decision.
Subsequently, claimant met with Mr. Szczerba at the property on May 31, 2000,
at which time Mr. Szczerba agreed to clean the vegetation from the ditch. Mr.
Szczerba advised claimant that this work would be included in the Department's
regular ditching schedule.
On August 1, 2000 a Department of Transportation work crew arrived at this
location and began clearing vegetation from the ditch. The work crew consisted
of a supervisor and seven other employees who were equipped with one pickup
truck, three dump trucks, and one Gradall excavator.
According to the Department's records and the testimony of all witnesses, the
crew excavated approximately 200 feet of the drainage ditch along Route 49, to a
depth of approximately two to three feet and to a width of three to six feet.
Claimant testified that he was present while this work was performed on August
1, 2000, and that he requested the crew to continue their ditching operations
further east along Route 49, so that the excavation would continue to the other
ditch which drained in a south to north direction. As it turned out, claimant
testified that the crew stopped work approximately 20 feet from the south/north
ditch. Claimant testified that the failure to extend the excavation of the
Route 49 ditch created a "dam"
, which prevented water contained in this ditch from flowing to the south/north
ditch, and instead led to an accumulation of water in the part of the Route 49
ditch which had been excavated.
Claimant then testified that approximately two weeks thereafter, on August 15,
2000, a heavy rainstorm occurred, causing a heavy volume of water to collect in
the recently excavated ditch. He testified that the water formed a pool in the
ditch, and subsequently overflowed, flooding his adjacent property. As a
result, claimant testified that he lost approximately 18 to 20 inches of muck
soil when the water on his land drained into the south/north ditch.
After this rainstorm, claimant again contacted the Department of Transportation
and complained about the ditching operation, the flooding which occurred on
August 15, 2000, and the property damage suffered by him as a result of the
flooding. In response, the Department of Transportation sent another work crew
to this site on September 14, 2000 and did additional ditching along Route 49.
Claimant testified that this Department of Transportation crew, in addition to
extending the drainage ditch along Route 49 approximately 200 feet west of the
original ditching operations, also ditched the remaining 20 feet east of the
original work site, thereby removing the "dam" that was created during the
original ditching operations. As a result of removing this "dam", claimant
testified that he has not experienced any flooding since that time.
Based on the testimony of Mr. Magari, claimants contend that the State was
negligent in the work it performed during the original ditching operations of
August 1, 2000. Specifically, it is the position of claimants that when the
work crew deepened the ditch along Route 49 it also created a "dam" when the
crew did not extend the excavation to the south/north ditch, and the failure to
do so ultimately led to the flooding of claimant's property, thus creating a
trespass by the State.
Mr. Szczerba, previously referred to as the Resident Engineer for the State
Department of Transportation for Oswego County, testified that he was the
Resident Engineer who authorized the cleaning of the drainage ditch along Route
49, after meeting with claimant on May 31, 2000. He testified that the cleaning
of the ditch along Route 49 was authorized by him only after persistent
badgering by claimant, and was done solely to "appease" claimant. After
authorizing this work, Mr. Szczerba testified that he then directed Richard
McLaughlin, a Department of Transportation employee who is now retired, to mark
the area for ditching and to incorporate this project into the department's
Kenneth Crouch, a Department of Transportation employee, testified that he was
the supervisor of the work crew on August 1, 2000, which performed the initial
ditching operations. He testified that this work consisted of approximately 200
feet of excavation and cleaning of the ditch within the State's right-of-way
along Route 49, adjacent to claimants' property. He testified that during any
ditching operations, as supervisor, he would instruct the Gradall operator to
excavate between marks previously placed on the road, and that it was his
responsibility to insure that the crew remained within those marks.
Danny Hall, a Department of Transportation employee who operated the Gradall on
both dates (August 1, 2000 and September 14, 2000) when ditching work was
performed along Route 49 at the Magari farm, testified that he simply dug from
one arrow to the next in performing these ditching operations. He had no
specific recollections on exactly where those marks were placed in the road.
Miles Blodgett, a Highway Maintenance Supervisor with the Department of
Transportation, was in charge of the work crew which went back to the site on
September 14, 2000, following the flooding of claimant's property. He testified
that he had been instructed by Mr. McLaughlin to "finish the job" along Route
49. He had no recollection that any excavation work was performed on that part
of the ditch that tied into the south/north ditch, and that the work crew simply
worked between arrows which had been marked on the road.
In sum, there is no dispute that the initial ditching operation performed on
August 1, 2000 cleared and deepened the drainage ditch adjacent to claimants'
property for approximately 200 feet along Route 49. From the testimony, as well
as the photographs taken by claimant and placed in evidence, it is clear that
this work did not extend east all the way to the south/north drainage ditch.
Contrary to the testimony of Mr. Magari, the testimony from the Department of
Transportation employees indicates that when a work crew returned to the site in
September, 2000, the additional ditching on that date took place to the west of
the original ditching operations. There is no testimony from any Department of
Transportation employee, or any evidence in the department's records, that any
ditching work was done on the easterly side of the original ditching operations,
which would have connected the west/east ditch to the south/north ditch.
Under the doctrine of qualified immunity, the State may not be held liable
unless it is established that the drainage system was designed without adequate
study or was based upon an unreasonable design decision (
Friedman v State of New York
, 67 NY2d 271; Weiss v Fote
, 7 NY2d
579). In this case, claimants do not allege that the ditch was negligently
designed or constructed. Claimant does contend, however, that the State
negligently maintained the drainage ditch when it performed its ditching
operations on August 1, 2000, leaving a 20 foot "dam" which prevented proper
drainage of accumulated water.
The evidence produced at trial, however, established to the satisfaction of the
Court that the specific area to be ditched had been marked by a Department of
Transportation employee, and that the work crew stayed within these markings
when performing its ditching operations. Aside from the testimony of Mr.
Magari, there was no expert testimony to establish that either the initial
markings or the work performed was done in a negligent manner. In fact,
testimony from the members of the ditching crew established that proper ditching
procedures required them to stay within roadway markings in order to avoid the
possible presence of underground pipes, cables, or wires. The decision by the
Department of Transportation work crew to cease ditching operations at the
roadway marker, and not continue beyond the delineated area to connect with the
south/north ditch, must be found to be a reasonable decision under the
Furthermore, when the Department of Transportation sent another work crew to
this site in September, 2000, following the flooding of claimant's property, the
evidence suggests that these ditching operations were performed west of the
original ditching operations performed on August 1, and that no ditching
operations were performed by the State to remove the "dam" east of the original
ditching work as alleged by claimant.
Claimants have produced no evidence sufficient for this Court to second-guess
the decision of the State engineer in determining which section of the drainage
ditch was to be cleared. There was no expert testimony to establish that the
State erred in not continuing the excavation to the south/north ditch, or that
the failure to do so was the proximate cause of the flooding which subsequently
occurred on claimants' property. The Court notes, with interest, that this
flooding occurred after claimants had cleared their property of vegetation and
trees in March, 2000. The Court therefore finds that claimant has not
established, by a preponderance of the evidence, that the State was negligent
when it performed ditching operations along Route 49 on August 1, 2000.
With regard to the trespass cause of action, it has been held that "trespass is
an intentional harm at least to this extent: while the trespasser, to be liable,
need not intend or expect the damaging consequence of his intrusion, he must
intend the act which amounts to or produces the unlawful invasion, and the
intrusion must at least be the immediate or inevitable consequence of what he
willfully does, or which he does so negligently as to amount to willfulness"
Phillips v Sun Oil Co.
, 307 NY 328, 331; see Ivancic v
, 66 NY2d 349, rearg denied
66 NY2d 1036, rearg denied
67 NY2d 754).
In the instant claim, there was no evidence introduced at trial to establish
that the overflow which occurred on August 15, 2000 resulted from willful
conduct on the part of the State, or such negligent conduct which would amount
to willful conduct (
Phillips v Sun Oil Co.
). The initial ditching operations
had been commenced at the express insistence of Mr. Magari. Moreover, even Mr.
Magari testified that the flooding occurred on one occasion, and one occasion
only. When informed of the flooding by Mr. Magari, the Department of
Transportation responded in a reasonable manner and reasonable time by sending a
work crew out to perform additional ditching operations. According to the
testimony of Mr. Magari, no additional flooding has occurred since that time.
The Court finds that none of these actions taken by the State constitute
negligence amounting to willfulness sufficient to establish a trespass cause of
Accordingly, based upon the foregoing, the Court finds that claimant has failed
to establish his cause of action for negligence and trespass by a preponderance
of the evidence. Therefore, in accordance with the foregoing, this claim must
Any and all motions made at trial upon which decision was reserved are now
LET JUDGMENT BE ENTERED ACCORDINGLY.