New York State Court of Claims

New York State Court of Claims

HINMAN v. STATE OF NEW YORK, #2005-018-463, Claim No. 103461


The evidence presented does not support a finding that the State breached any duty nor does the evidence support a finding that the State breached any duty as a landowner. The circumstances of this accident did not entail a perceptible risk for which the State had an obligation to provide protection or warning. The claim is dismissed.

Case Information

RANDY HINMAN The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
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: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 1, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


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 tractor.

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 scene.[1]

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 slope"[2] 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.[3] The existence 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 the culvert.

Claimant submitted the deposition of Charles Alderwick[4] 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 potentially hazardous[5] 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[6] 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 projects.

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 tractors.

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.

Legal Analysis

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 warning.

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 this accident.

The evidence also does not support a finding that the State breached any duty as a landowner. A review of the pictures in evidence[7] 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 282 AD2d 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 vicinity.

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.

April 1, 2005
Syracuse, New York

Judge of the Court of Claims

[1]Defendant objected to any information from the site visit being admitted because no reference to the visit was made in the expert disclosure. The Court allowed the testimony subject to reconsideration after further submissions in the parties' post-trial briefs. After a review of those documents, the Court's trial ruling will stand.
[2]All quotes are from the trial testimony unless otherwise noted.
[3]Exhibit 3, the 1995 version of the design manual contains the following definition in § (pp. 10-14): "Fixed objects are defined as potentially hazardous permanent installations of limited extent that can be struck by vehicles running off the road (emphasis in original)."
[4]Exhibit 16A.
[5]See Exhibit 4, which shows different markers including the two Mr. Alderwick identified: W7-10 and W7-11. W7-11 is a reflective rectangular marker of a solid color.
[6]Exhibit 1.
[7]Claimant's Exhibits 5-14 and Defendant's Exhibits A-D