New York State Court of Claims

New York State Court of Claims

BURROUGHS v. THE STATE OF NEW YORK, #2007-013-515, Claim No. 106772


The State is 70% liable for negligent maintenance of a pothole in the right-of-way that encroached into the paved shoulder of an unusual T-intersection where a high-speed divided State highway dead-ended and traffic had to turn either left or right onto another State road.

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:
HARRIS, CHESWORTH, O’BRIEN, JOHNSTONE, WELCH & LEONE1 1. After the trial was concluded, a Consent to Change Attorney was filed with the Clerk of the Court substituting Harris, Chesworth, O’Brien, Johnstone, Welch & Leone for Crimi & Crimi.BY: EUGENE WELCH, ESQ.
Defendant’s attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 31, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This is a timely filed claim alleging the Defendant’s negligence with respect to a one-vehicle accident at the intersection of State Route 531 and Washington Street in the Town of Ogden in Monroe County. The trial herein was bifurcated and addresses issue of liability solely.

Claimant Richard M. Burroughs was driving his motorcycle to his residence from his place of employment at approximately 11:50 p.m. on July 18, 2002 when the accident occurred. While much ado has been made regarding the events leading to the accident, including inconsequential testimonial variations, the relevant and pertinent facts are recited below. Claimant was completing his shift (2:48 p.m. to 11:18 p.m.) at Delphi Automotive in the City of Rochester. Because he had driven his Harley Davidson Ultra Classic Tour Glide motorcycle to work, and there was a forecast of rain that evening, he asked his girlfriend Lisa Rivera to retrieve his rain gear from their home in Brockport and deliver it to him at work. She drove to the site and did so, as they met at approximately 11:25 p.m., a few minutes after the completion of his shift. As the testimony established, it did not rain at any relevant period that evening, and the highlighted testimonial discrepancy between Claimant and Ms. Rivera whether he actually donned the rain gear is irrelevant and immaterial, and does not cloud the credibility of either witness.
Claimant departed ahead of Ms. Rivera, who purposefully trailed somewhat behind him, and traveled along Route 490 to Route 531 westbound, taking it to its terminus at Washington Street. As the testimony established, this is a very unusual intersection, as Route 531 is a high-speed divided four-lane highway (up to 65 mph) which dead-ends at Washington Street, with motorists forced at that point to turn either to the north or south. Claimant, who was quite familiar with this intersection, was traveling in the right-hand lane, intending to turn to the right, northbound, on Washington Street. The road was dry that evening as he approached this unlit intersection, slowing up in anticipation of the end of the westbound highway and the right-hand turn he was going to make. The two westbound lanes of Route 531 each were 12 feet wide, and there was a 10-foot-wide paved shoulder. The left-hand lane contained left-turn only designations, as did the overhead traffic control devices. The right-hand lane was similarly marked. As will be seen below, there was direct testimony from certain “notice” witnesses and certain State employees, and circumstantial evidence inferred from the coloring of the pavement surface shown particularly in Exhibit 2,[2] that motor vehicles regularly drove on and utilized the 10-foot paved shoulder in what might be characterized as a “de facto” additional lane of traffic.[3] Some of this also may be readily inferred from the faint and faded right edge or fog line that delineated the end of the travel lane from the paved shoulder.

Claimant testified that he was in the designated right-hand turn only lane when in his rearview mirror he spotted an automobile approaching at a speed that made him “antsy.” That car was seemingly approaching too fast, Claimant was concerned and started to move his cycle to the right, onto the paved shoulder to try to avoid a potential rear-end collision and to give the other vehicle room to maneuver around his cycle to the left into the westernmost of the two northbound lanes of traffic on Washington Street. The impression left from the testimony at trial is that those drivers who made the right-hand turn and intended to head towards Brockport would stay to the left (westerly) as approximately ¼ mile north of the intersection of Route 531, vehicles would turn left onto Route 31 westerly toward Brockport. On the other hand, vehicles continuing north on Washington Street, or those who intended to turn right on Route 31 heading easterly toward Spencerport, would utilize the right lane of Washington Street, and would be likely to use some or part of the paved shoulder either as another lane of traffic or as a means of softening the 90° angle of the right turn onto Washington Street. In sum, it would appear that this was a regular and well-known practice at this intersection. Back to Claimant’s journey.

With the right-hand-turn signals green, he slowed his vehicle to about 20 mph, turned the handlebars to the right and leaned to the right at a 45° angle, but the fast-approaching vehicle from the rear also started to turn right toward the inside northbound lane, so Claimant veered a little more sharply to the right. The bike’s front tire dropped into the pothole which is, for the sake of this discussion, at the cusp or right edge of the paved shoulder, abutting and/or eroding part of the paved shoulder. He lost his grip on the handlebars, the bike wobbled, and he knew that it was going to go down, so he didn’t try to fight it and, as he had been taught, rode “it down” so that it would not flip. He rode and slid for 15 or so feet, and while the bike stopped some three feet or so from the pothole in gravel off the paved shoulder, he slid an additional 10+ feet onto gravel (see the added markings on photographic Exhibit 2). He recalled that Lisa Rivera arrived and shut off the bike’s motor. He also recalled that, after perhaps ten vehicles passed him without stopping, one motorist stopped to help him and Ms. Rivera “right” the 800 pound bike and he then drove it home to Brockport. To the extent that Claimant’s testimony at his deposition that he and Ms. Rivera were able to right the bike, impliedly without the assistance of another individual, and that such differs from trial testimony, I find that to be a distinction without a difference. The inference which I presume is sought, to wit, that Claimant was determined to avoid a police presence because of alcohol consumption on this evening and two previous alcohol-related license suspensions, the last of which was 1995, is rejected, since it would require a conclusion not supported by any probative evidence. Regardless, Defendant’s motion to use the portions of Claimant’s deposition listed in its Motion in Limine pursuant to CPLR 3117(a)(2) is granted and Exhibit C is admitted into evidence.

Lisa Rivera did not witness the accident, having arrived momentarily thereafter. She parked her vehicle on the paved shoulder a little east of the accident scene. She observed the bike on the ground and Claimant some four feet away walking toward the bike.

The bike was operational, and Claimant was physically able to drive home to Brockport. Ms. Rivera followed him. Claimant neither asked for nor received any medical attention that evening because he didn’t feel that anything major was wrong. He went upstairs to bed at their home and was starting to feel pain; he was “hurting.” Ms. Rivera gave him a couple of shots (also described as half of a juice glass) of a whiskey named Yukon Jack, and by 3:00 a.m. she went to sleep. By the next morning, Claimant was in a lot of pain, couldn’t breathe and was “locked in a fetal position.” At 7:30 a.m. or so, Ms. Rivera transported him by car to Lakeside Memorial Hospital in Brockport. Claimant was seen by an emergency room physician, Dr. Igor Rosien, at about 11:30 a.m., nearly 12 hours after the accident. I will digress to a discussion of certain injuries, but solely as they relate to questions of Claimant’s suggested intoxication. Dr. Rosien, in testimony disputed by both Claimant and Ms. Rivera, says that Claimant acknowledged alcohol intake, albeit without any time frame. Dr. Rosien believed that Claimant presented as intoxicated, with the smell of alcohol on his breath, with a disheveled appearance and slurred words. His blood was tested, and, some 12 hours post-accident, was measured at .04, below any level of impairment for driving purposes.

Claimant presented as well with abrasions on his right side and multiple rib fractures. I reject any suggestion or invitation to find that there was alcohol consumption and/or impairment which led to the accident. First, accepting as I do, the duration of Claimant’s work shift until 11:18 p.m., Ms. Rivera’s arrival with the rain gear at approximately 11:25 p.m., and the distance driven from Claimant’s place of employment to the site of the accident which occurred at about 11:50 to 11:55 p.m., there was no apparent opportunity to have consumed any alcohol after work that evening prior to the accident.

Defendant would have me infer that, because of Claimant’s two prior alcohol-related license suspensions and the failure to have called the police to the accident scene that evening, the post-accident consumption of Yukon Jack was a contrivance to mask an alcohol-related cause of the accident in question. The blood test some twelve hours later is not inconsistent with the alcohol consumption acknowledged after Claimant and Ms. Rivera arrived home after the accident. The doctor’s inferences are readily explained by the testimony of post-accident Yukon Jack consumption, pain from fractured ribs and abrasions, and limited sleep as Ms. Rivera went to bed at 3:00 a.m. and they left for the hospital at 7:30 a.m. Any suggestion that alcohol played a part in this accident is dehors the record before me and speculative, and thus is rejected.

So the question now devolves whether the Defendant bears any responsibility for the accident and the injuries sustained. First, there was sufficient testimony from three notice witnesses to establish that the Defendant had at least constructive notice of this pothole, whose dimensions were measured by Stephen Tausch, a licensed private investigator on August 12, 2002, some 25 days after the accident, as 58 inches long with a depth of 7 inches (memorialized in photographic Exhibits 8, 9 and 10).

Terry J. LeJeune resides some six houses from the intersections of Route 531 and Route 31 with Washington Street, and testified that he was aware of the pothole, that he observed motorists cut the right turn short and hit the pothole, particularly when it was raining, as it could be observed during good weather but was obscured when filled with rain water. While he used that intersection very little during the summer of 2002, and did not notify DOT of the pothole’s existence, he was aware of cars using both the right-hand lane and the paved shoulder to make right turns on to Washington Street.

Warren Zollweg, who lives five houses north of the intersection of Route 531 and Washington Street, became aware of the pothole that summer when he hit it making the same right turn. He explained that it was a busy time, the lanes were all full and motorists started to use the shoulder, and he followed along with everyone else. He estimated its size as 18 inches long, perhaps one foot wide and “deep enough to feel it.” He didn’t see the pothole until he hit it, sometime prior to August 12, 2002, because he was so close to the car in front of him. Similarly, he never reported it to DOT.

Thomas Hilbert lives on Route 31 and was familiar with the intersection of 531 and Washington Street. He traveled that way every day from work, was familiar with the pothole and knew to swing around it when making the right turn at that intersection. He testified that motorists going north on Washington Street or going to Spencerport would utilize the paved shoulder as a lane of traffic, particularly during heavier trafficked periods. He recalled the pothole as being triangular in shape, some 18 inches by two feet by 18 inches, but he also did not report it to DOT.

The Defendant provided the testimony of the DOT Resident Engineer for the western residency of Monroe County, James Dunlap, who has been in that capacity since Route 531 was opened, and whose office has the responsibility for general maintenance of the highways in the State right-of-way in the area in question. He advises that there was no maintenance work scheduled at the intersection in question in the summer of 2002, and he noted that there were no changes made to the intersection between September 17, 1998, the date of the State’s log photo in evidence as Exhibit 5, and the July 20, 2002 photo in evidence as Exhibit 2. While he had the opportunity to travel in the area during the summer of 2002, he never observed the pothole in question, nor was it ever brought to his attention by any of his staff. He acknowledged the DOT’s responsibility for maintenance of the entire area in question, including the travel lanes and the paved shoulder including the area where the pothole is located. He also acknowledged that the faded or faint edge line is not a highly visible line, described as the best shoulder delineation available (see Exhibit 4, Highway Maintenance Guidelines, Section 2.000 Shoulder Maintenance).

Claimant’s focus on the placement of the two signal heads directing right-turn-only traffic in the right travel lane seems misplaced with respect to this accident. There was no credible evidence that the placement of the signal heads had any bearing on this accident, and any inference that Claimant intimated in that regard is rejected. On the other hand, the faintness of the edge line delineating the shoulder, a non-mandatory guideline, demonstrated the regular use of the shoulder by motorists as if it were an additional travel lane. While none of the witnesses or drivers who testified erroneously believed that the paved shoulder was a designated lane of travel, the evidence established that it was blatantly and regularly utilized as if it were an additional designated travel lane. Mr. Dunlap acknowledged that while there is a drop-off at the edge of the shoulder, in examining Exhibit 2 he described the shoulder variously as being in good to excellent or very good condition, and noted as well that the shoulder guidelines admitted as Exhibit 4 do not provide any guidance with respect to drop-offs from paved shoulders.

Edward Denehy, the DOT pavement and maintenance engineer, testified after reviewing Exhibits 2 and 5 that the pothole was not in the paved shoulder, and furthermore that there are no guidelines for maintenance beyond the outer edge of a paved shoulder. Upon reviewing Exhibits 7, 8, 9 and 10, photographs taken by Claimant’s investigator, he noted that the pavement at the outer edge of the shoulder is degrading, that there is slight degradation and minor cracking of the shoulder, but noted that the Defendant has limited resources, and generally maintenance starts from the centerline out. Each situation must be assessed on its own. If there was significant erosion that threatened the integrity of the shoulder, then work would have to be done.

In his testimony Mr. Denehy noted that the shoulder is 10 feet wide, the widest shoulder constructed by the Defendant; the speeds are slow at this intersection; the drop-off is described as being outside the outer edge of the shoulder; the shoulder is still “pretty much intact”, and given the limited resources available, this would not be the “highest priority” for repair. The options for repair, in Mr. Denehy’s opinion, in the area of the pothole are limited, as the pothole does not have any structural support, and pretty much any repair would not sustain traffic since this area was not intended for traffic.

On cross-examination he agreed that the pothole did not exist when the intersection was first constructed; that the pothole did not exist in September 1998 (Exhibit 5); he concurred that ideally there should not be any drop-off between the paved shoulder, sloped as it is for drainage, and the remainder of the roadway area of the pothole, and that they should meet. Indeed, he also acknowledged that when he examined the intersection on two occasions in February of 2006, he observed motorists crossing the edge line and using the shoulder as an area to drive in when making right turns at the intersection. He agreed that the cause of the drop-off is erosion over time, caused by weather and vehicular traffic “misusing” the shoulder as a turning lane.

First, I find that the Defendant was on notice, whether characterized as actual or constructive, that vehicular traffic regularly and consistently utilized the paved shoulder as if it were an additional travel lane. By failing to keep the edge or fog line highly visible and allowing it to remain faint gave the impression that such use of the paved shoulder was tolerated and acceptable. Additionally, the testimony also established that the pothole had been in existence for a number of weeks, sufficient to have placed the Defendant on notice of its existence. Moreover, it was of such size and dimension as to constitute a hazardous condition.

As I noted in Russo v the State of New York (UID #2001-013-506, Claim No. 96902, April 26, 2001),[4] the State has a duty to construct and maintain its highways in a reasonably safe condition (Matter of Kirisits v State of New York, 107 AD2d 156) and must use reasonable care in its construction and maintenance of any shoulders it provides (see Stiuso v City of New York, 87 NY2d 889, 891; Bottalico v State of New York, 59 NY2d 302, 305-306). It must, where circumstances warrant, protect motorists from foreseeable hazards located immediately adjacent to the shoulder (see Stiuso v City of New York, 87 NY2d at 891, supra; compare Terwilliger v State of New York, 96 AD2d 688, lv denied 60 NY2d 558 [State liable for accident caused by culvert and head wall located in "unnecessary proximity" to shoulder] with Muller v State of New York, 240 AD2d 881 [State had no duty to protect motorist from culvert located "well beyond" the shoulder]).

While in Russo I held that the accident and resulting injuries were not proximately caused by negligence on the part of the Defendant, here I am persuaded to the contrary. In this claim, travel beyond the paved travel lane, including the paved shoulder, was foreseeable (Tomassi v Town of Union, 46 NY2d 91). I am cognizant that the State’s liability and responsibility for the maintenance of its roadways must have a limit, and generally areas beyond the shoulder have provided the line of demarcation (cf. Millis v State of New York, UID #2002-005-021, Claim No. 91107, May 6, 2003, Corbett, J.).

But Muller v State of New York (240 AD2d 881, 882, supra), provides some clarifying appellate guidance. The Appellate Division dismissed that claim holding that the State has a duty to the traveling public to maintain its highways and their adjacent shoulders in a reasonably safe condition, and finding the relevant area there was beyond the scope of the State's duty since it involved an “area well beyond the traversable shoulder” and emergency use of such additional area was neither contemplated nor foreseeable.

In contrast, in the claim at bar, the location of the pothole is not “well beyond the traversable shoulder.” Indeed, Mr. Dunlap, the Resident Engineer, acknowledged that the State is responsible for maintenance of the area where the pothole is located and that the drop-off here was at the edge of the shoulder. Additionally, Mr. Denehy, the Defendant’s pavement and maintenance engineer, while noting that the pothole in question was part of the roadway but contending that it was not part of the shoulder, also acknowledged that there was a drop-off at the outer edge of the paved shoulder. I am cognizant that the State’s position is that the drop-off is outside the outside edge of the shoulder, that there was not much structural support, that it will break up anyway, and that it was kind of shoveling sand against the tide as it was not designed for traffic. Significantly, however, it was conceded that there is some slight degradation of the shoulder and minor cracking within the first couple of inches.

Taking all of this into account, including the notorious use by motor vehicles of the paved shoulder and the area of the pothole as an additional travel lane, it appears that the pothole in question encroached onto the paved shoulder and was created and or exacerbated by the degradation, albeit described as slight. Thus this dangerous condition was partially on the paved shoulder, but surely not an area well beyond the traversable shoulder (see Muller v State of New York, 240 AD2d 881, supra).[5]

This holding is, I believe, sui generis. In no way is it intended to cavalierly expand the State’s responsibility generally to areas beyond the shoulders, and is unique to the facts of this unusual intersection of a high-speed highway coming to an end and with forced turns and the blatant use of the paved shoulder as a travel lane, and a hazardous pothole commencing at the edge of the paved shoulder.

Accordingly, I find that the Defendant was on notice of this dangerous condition and that it was a proximate cause of the accident in question. In so holding, however, I note that this was an unwitnessed accident, and I have only Claimant’s testimony as to his speed as he was trying to avoid another driver and decelerated from 65 to 55 and then to 20 mph as he neared the intersection. He too bears some culpability for his speed, or the sharpness of his turn, and inattentiveness in failing to observe the pothole, which, although this is an unlit intersection, might well have been visible from the motorcycle’s headlight. Therefore, I find the Defendant is 70% responsible for the accident and that Claimant bears 30% of the responsibility.

All motions not heretofore ruled upon are now denied.

The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability. This claim will be scheduled for trial on the issue of damages as soon as practicable.


December 31, 2007
Rochester, New York

Judge of the Court of Claims

  1. [2] This photograph was taken two days after the accident, on July 20, 2002, by Lisa Rivera.
  2. [3] As noted by Edward Denehy, employed by the Defendant’s Department of Transportation (DOT) as a pavement and maintenance engineer, motorists illegally use shoulders for many purposes. Resident Engineer James Dunlap noted the discoloration or darkened area from oil, etc., dripping from vehicles regularly traveling on the shoulder surface.
  3. Decisions and selected orders of the New York State Court of Claims are available on the Internet at
  1. [5]Interestingly, in Nationwide v The State of New York (UID #2007-044-005, Claim No. 104520, April 2, 2007, Schaewe, J.), where a vehicle traversed a pothole located partially on the paved shoulder of a State highway and partially on private property, because there was no proof that the vehicle struck the portion of the pothole actually located on the shoulder for which the State was responsible, the claim was dismissed on proximate cause grounds. The claim at bar is distinguishable, as the State has maintenance responsibility for all areas in issue.