Claimant timely filed and served a claim seeking damages for the State's
alleged negligence in constructing a culvert off the shoulder of State Route 31
without a warning sign, grade cover or guardrail. The trial was bifurcated and
this Decision relates solely to liability.
Claimant testified at trial that he has resided in this locale of Route 31 for
the past 18 years, 10 years in his current home, and prior to that, he lived
next door. Route 31, at this location, is a flat straight two-lane State
roadway running east and west. There is a gully that runs parallel to Route 31
in Claimant's front yard as well as his neighbors' to the right and left of his
residence. These neighbors, as well as Claimant, mow this gully portion of
their lawns, which is adjacent to the shoulder of the road.
As a favor to John Miller, his neighbor immediately to the east, Claimant
agreed to mow Mr. Miller's lawn while he was in Florida. On September 22, 2000,
a Friday morning, around 11:00 a.m., Claimant was on his Kubota garden tractor
mowing the Miller's lawn. He was mowing their lawn just east of their driveway,
approximately 6 feet off the southern paved shoulder of Route 31. Claimant was
facing east when he saw a westbound vehicle pull out to pass another vehicle,
and the passing vehicle's driver was using a cell phone and driving erratically.
The driver swung the car wide as it began to pass and when the vehicle's front
tire hit the southern shoulder of the road, Claimant took evasive action by
driving the tractor forward and to the right. The tractor went into a
5-foot-wide, 5-foot-deep, 18-foot-long culvert which was hidden by weeds. The
culvert, according to Claimant, had sharp jagged edges. Claimant thinks he was
unconscious for a period of time. He recalls becoming aware that his head was
on the ground and he was wet; his head, arm, and wrist hurt. A neighbor helped
Claimant by getting the tractor out of the culvert while Claimant drove to
Oneida Hospital where it was determined he had broken his wrist.
Claimant testified that there were no posts or delineators on the south side of
Route 31 marking this culvert, as there were on the north side of the road.
While driving on Route 31 he noted that for three miles from where he had his
accident, there were posts or delineators at every culvert. Claimant reported
the accident to police the following Monday.
On cross-examination, Claimant said that for the past eight years he regularly
mowed about 40 feet of the Miller's lawn whenever he mowed his own because he
has a bigger tractor. Claimant estimated he mowed once or twice a week during
the mowing season. Claimant also testified that he had owned and used other
Kubota lawn tractors in the past, and he had experience with operating heavy
machinery both as a building contractor and while he was in the military
service. When he purchased his lawn tractor, the retailer provided about
one-half hour of instruction on its use and a manual for it.
Defendant introduced into evidence (Exhibit L) the "Kubota Ten Commandments
of Tractor Safety." One of the safety tips in that manual with which
Claimant acknowledged being familiar is to walk the terrain to be mowed before
driving it. Claimant said he did not do this because he was not planning on
mowing more than one path on the level area near the road. The manual also
urges special caution on slopes and uneven ground. Claimant insisted he
followed the safety tips, and that he was cautious when he used his
Claimant called Alvin Bryski as an expert. Mr. Bryski has a master's degree in
civil engineering and has worked for the Canadian Department of Transportation
and as a private contractor. Although he is not licensed by New York State, he
taught courses in highway design and construction, and related courses while a
professor and later a department chair at Hudson Valley Community College. He
is familiar with the New York State Highway Design Manual (hereinafter the
Design Manual) and the Manual of Uniform Traffic Control Devices (hereinafter
MUTCD). In preparation for trial, he reviewed depositions, photographs,
construction plans and made a site visit and took measurements at the
Mr. Bryski's measurements led him to calculate the slope of the culvert to be 1
on 1.67; slightly steeper than a 1 on 2 slope. The 1 on 2 slope, according to
Defendant's witness, Paul Obernesser, the Transportation Maintenance Engineer
for a six-county area for the New York
State Department of Transportation (hereinafter DOT), is a "critical
for vehicles leaving the roadway. It
is based on studies done in the 1960's which indicated 88% of vehicles leaving
the highway could recover and not roll over if the slope was a 1 on 2 slope.
The 1 on 2 slope indicates that for every 2 feet moved horizontally there is a 1
foot vertical drop. According to Mr. Bryski's measurements, the right shoulder
was 8 feet 9 inches and the grassy area to the edge of the culvert was 4 feet 10
inches. He said the depth of the culvert was 5 feet 4 inches and oval shaped.
In his opinion, if a vehicle left the road, it would either fall into the
culvert or hit the other side. He referred to the 1974 and 1989 Design Manuals
to establish the State's knowledge of the hazardous condition created by the
unmarked, uncovered culvert. Mr. Bryski felt that this culvert was a hazard,
falling under the definition of "fixed objects" in the 1974 version of the
Design Manual. Fixed objects, according to Mr. Bryski, are defined in that
Design Manual as permanent installations, limited in length, that can be struck
by objects leaving the roadway.
of a fixed object is one of the criteria for placement of a guardrail. In Mr.
Bryski's opinion, this culvert was not traversable and required that a guardrail
or some other protection be provided to the traveling public: either gratings
placed across the culvert or an object marker.
On cross-examination, Mr. Bryski acknowledged that the Design Manual was
intended to apply to new and reconstructed facilities, and DOT is not under an
obligation to fix or upgrade every roadside culvert to the current design
standards. Mr. Bryski testified that the obligation of DOT is to provide a safe
highway but where there is a fixed object, DOT has an obligation to address it
quickly. Mr. Bryski, however, testified that he could not state that the
existence of an object marker would have prevented this accident, or that
grating over the culvert would have permitted Claimant's lawnmower to traverse
Claimant submitted the deposition of Charles
on his direct case. Mr. Alderwick,
a DOT traffic engineer, identified two types of markers or warning devices. The
W7-11 is a marker used to warn of obstructions near the roadway which are
for errant vehicles that
leave the roadway. He testified that the MUTCD provides that the W7-11 marker
may be used to designate a culvert. The discretionary language allows for an
engineering decision to be made as to whether an object marker should be
installed. He also pointed out that such a decision would be based on today's
standards and would be implemented during renovations or new construction.
Also submitted by Claimant (Exhibit H), was a deposition of John Collins, the
DOT resident engineer for the Utica District. He, too, identified markers used
by DOT to delineate culverts.
The State, as described above, called Paul Obernesser, a DOT Transportation
Maintenance Engineer for Region II, who oversees highway and bridge maintenance
in the area where Claimant's accident occurred.
Mr. Obernesser reviewed the road history
which outlines any major work performed on the relevant portion of the highway.
Route 31 was originally constructed in 1935, the pavement was widened in 1960 to
its current 24 feet width. In 1979 DOT resurfaced the road, and in 1992, the
road was again resurfaced, but by a private contractor. No culvert work was
done during any of the resurfacing work. Mr. Obernesser had no knowledge of any
planned major reconstruction work on this section of roadway other than repaving
Mr. Obernesser visited the site with Robert White, another DOT engineer the
week before trial. He described the culvert as being a corrugated steel pipe,
5-foot in diameter, that was added during the last major reconstruction on the
road in 1960. The slope from the pavement to the bottom of the ditch is 1 on 2.
This slope met the DOT standards in 1960 and was designed to prevent rollover.
In 1960, a slope of more than 6 feet and steeper than a 1 on 2 slope would
require a guiderail. Here no guardrail was required. Today the DOT does not
rely just on the measurements of the slope but takes into consideration other
factors and tries to eliminate the hazard. This culvert, if constructed today,
would have been set back several feet (at least 8 feet) outside the clear zone,
which would involve more than mere maintenance. Even under today's standards
however, not all of the 10,000 to12,000 culverts in this region require
guardrails. If the culvert is less than 2 feet in diameter or is far enough
from the road, no protection is provided. Instead of guardrails, sometimes metal
safety grates with 11" x 11" openings are placed over the culvert, openings to
allow motor vehicle tires to traverse over the culvert.
Mr. Obernesser testified that since this culvert is in good shape and there is
no motor vehicle or pedestrian accident history for this location, there is no
reason the culvert would be renovated or replaced. The accident history DOT
considers in evaluating a roadway condition involve motor vehicles, not lawn
When asked about diamond shaped yellow object markers, Mr. Obernesser said they
can be used to delineate culverts. DOT uses these markers to warn maintenance
employees of the culvert; specifically, the snowplow drivers who cannot see the
snow-covered culvert, or the DOT mowers. He said the roadside, where the
accident occurred, would be mowed once or twice a year but if a property owner
mowed the area, it would not be remowed by DOT.
Robert White also testified for the State. He visited the site with Mr.
Obernesser. He identified Exhibit G as information he obtained from DOT's
Design Quality Assurance Bureau in Albany. It outlines historical references to
the design standards in place at the time this culvert extension on Route 31 was
installed in 1960.
Mr. White testified that early standards to determine if a guardrail was
indicated looked to slopes and the diameter of the culvert pipe. In regard to
slope, if the slope was 6 feet in vertical height or less, and not steeper than
a 1 on 2 slope, no guardrail was necessary. Likewise, if the culvert pipe was
30 inches in diameter or less, than a relatively shallow depth would be involved
and the culvert extension or end pipe at its widest would be 5 feet or less in
diameter. Under these circumstances, no guardrail would be necessary. This was
based on testing which determined that a vehicle that left the roadway could
crossover without nosediving into the pipe if the culvert pipe was 30 inches or
less with the appropriate end pipe. A larger pipe with a wider end pipe would
be too large to cross.
Mr. White testified if this culvert pipe were up for a reconstruction project
today, additional factors, called "clear zone issues," would be considered.
These include environmental factors and accident history. If there is no
related accident history, then for purposes of DOT's prioritization of work,
reconstruction of such an obstruction would fall as a low priority. Here, there
is no significant accident history involving this culvert.
Consistent with other witnesses, Mr. White testified there was no marker to
delineate the subject culvert on the south side of Route 31, but there was a
diamond shaped object marker in place on the north side. No one explained the
reason no marker was in place on the south side. Mr. White, like Mr.
Obernesser, testified that placement of object markers were primarily for DOT
maintenance forces to locate the culvert, and he felt that even a savvy motorist
would not know the purpose of this object marker.
Claimant argues that the State owes him, as a landowner mowing the area around
this culvert and engaged in a foreseeable use of the shoulder of this roadway, a
duty of care to eliminate or warn of the hazardous condition that this culvert
presented. Defendant, in opposition, takes the position that the State owed no
duty to Claimant. Defendant argues that the duty of the State on Route 31 is
to the traveling public on the roadway and not to adjacent landowners using
their lawn tractors.
The State owes a duty to the traveling public to maintain its roadways in a
reasonably safe condition (Friedman v State of New York, 67 NY2d 271).
Although not operating a licensed motor vehicle, it cannot be said that the
State did not owe Claimant a duty of care merely because he was utilizing a lawn
tractor at the time of his accident. Just as the State owes a duty to a
bicyclist or pedestrian, Claimant is not excluded from the class of protected
persons merely because he operated a lawn tractor. Although the State's duty
may not arise from the State's obligation to maintain its roadways in a safe
condition, because Claimant was not a traveler on the roadway or shoulder and
was mowing the strip of level land immediately adjacent to the paved shoulder of
the road on the State's right-of-way, as owner of the right-of- way, the State
also owes a duty to keep its premises in a reasonably safe condition against
foreseeable risks (see Basso v Miller, 40 NY2d 233; Walters v County
of Rensselaer, 282 AD2d 944, 945). Yet, the State's duty is not boundless;
it is constrained by what risks are reasonably to be perceived (see Palsgraf
v Long Island R. R. Co., 248 NY 339).
After considering the facts, under either role as provider of a safe highway or
as landowner, the evidence presented does not support a finding that the State
breached any duty. The circumstances of this accident did not entail a
perceptible risk for which the State had an obligation to provide protection or
The State's duty to maintain its roadways in a reasonably safe condition
extends not only to the actual travel lanes of the roadway, but also to the
shoulders of the road if provided (Bottalico v State of New York, 59
NY2d 302; Stiuso v City of New York, 87 NY2d 889). Beyond the
shoulders, the State has no duty to make unimproved land adjacent to the roadway
safe for travel (see Stiuso 87 NY2d at 890; Tomassi v Town of Union,
46 NY2d 91). Here, Claimant was not on the roadway or the paved shoulder
when he diverted his lawn tractor into the culvert. This area of Defendant's
right-of-way was not improved, yet the State constructed this culvert and thus
had an obligation to construct it in such a way that it was reasonably safe for
the risks that should have been perceived.
Route 31, at this location, last underwent reconstruction in 1960, at which
time the travel lanes were widened and the culvert in question was extended to
its current location and configuration. Undisputedly, the culvert was
constructed in conformity with the requirements in place in 1960, and
guardrails, grating, and object markers were not required. The State is
afforded qualified immunity for decisions relating to highway design plans
unless proof is presented that the plan evolved without adequate study or had no
reasonable basis (Weiss v Fote, 7 NY2d 579, 589; Friedman 67 NY2d
at 271). Compliance with the standards existing at the time of construction
establishes a reasonable basis for the design plan (see Weiss 7 NY2d at
586; Schwartz v New York State Thruway Auth., 95 AD2d 928, affd 61
NY2d 955). The fact that standards have changed since the culvert was extended
does not impose upon the State the obligation to take remedial action to conform
with current standards (see Vizzini v State of New York, 278 AD2d 562;
Van De Bogart v State of New York, 133 AD2d 974). Although the State is
under a continuing obligation to reevaluate its roadways based upon changing
conditions in order to make sure that a roadway remains reasonably safe in light
of the actual performance of a roadway design, here the State established that
there was no accident history involving this culvert and the culvert was in good
condition (see Weiss 7 NY2d at 587; Friedman 67 NY2d at 284).
Under these circumstances, the State had no duty to upgrade this culvert to
comport with current design standards. This culvert was reasonably safe for
the purpose for which it was designed including an emergency diversion of an
errant vehicle, but it was not a foreseeable risk that someone using the side of
this roadway would drive into the culvert on a vehicle as small and slow-moving
as a lawn tractor (see, Harrow v State of New York, 32 Misc 2d 170,
172-173, affd 21 AD2d 571, affd 17 NY2d 619). Nor did the proof
show that any of the protective measures Claimant asserted the State should have
had in place (guard rails, gratings, or object markers) would have prevented
The evidence also does not support a finding that the State breached any duty
as a landowner. A review of the pictures in
establishes that this area was not
intended to be traversed by foot or motor vehicle. Although the culvert is not
clearly visible from all the photographs, particularly Exhibit 6-A, it is quite
clear that the level strip of land where Claimant was mowing, next to the
shoulder of Route 31, is immediately adjacent to a sloped area which adjoins a
ditch, or gully, as described in testimony (more visible in Exhibit C).
Abruptly turning a lawn tractor into such an area, even in an emergency
situation, was fraught with risks readily apparent (see Walters
at 945; Harrow
32 Misc 2 at 571, 572; Curanaj v State of New York,
Ct Cl, O'Rourke, J., Claim No. 94467 [2000-017-604]). Claimant testified
that before his evasive action, he had intended only to mow the level area
beside the paved shoulder. Claimant did not plan or anticipate his action in
steering his lawn tractor into the culvert prior to encountering the threat of a
collision with a fast-moving automobile. Similarly, the State could not have
perceived of such action. The State cannot and is not obligated to protect
against any contingency. To hold the State to such a burden would make it an
insurer of the safety of everyone using its roadways or property. There were no
other accidents involving this culvert and the State had no reason to suspect
that this culvert could be a dangerous condition. Additionally, Claimant had
lived within several hundred feet of this culvert for the past 18 years. A view
of the area of this culvert from the many photographs in evidence, taken at
various times of the year, make it clear that this culvert is, at most times,
readily apparent. Although it may have been obscured by overgrowth at the time
of Claimant's accident, it seems unfeasible to this Court that Claimant could
have been completely ignorant of the culvert's existence in that general
Accordingly based upon the foregoing findings of this Court, the claim must be
DISMISSED. All motions not previously decided upon are hereby DENIED. LET
JUDGMENT BE ENTERED ACCORDINGLY.