HAY v. THE STATE OF NEW YORK, #2007-015-569, Claim No. 110794
Automobile accident victim who sustained injury in an off-the-road collision
with a tree stump on the State's right-of-way cannot receive damages as the
defendant had no duty to maintain the right of way where the traveled portion of
the roadway was unobstructed and free of defects, so held the Court in its
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Conway and Kirby, LLPBy: Thomas A. Conway, Esquire
Honorable Andrew M. Cuomo, Attorney General
Frederick H. McGown, III,
EsquireAssistant Attorney General
December 7, 2007
See also (multicaptioned
Claimant was allegedly injured in an automobile accident on June 17, 2003 when
a deer jumped in front of her car on State Route 82. Her vehicle left the paved
portion of the highway and collided with a tree stump located in close
proximity to the shoulder edge. The claim proceeded to trial on June 20,
Claimant, Judith Hay testified that on the morning of June 17, 2003 she awoke
at approximately 6:00 a.m. and later departed her residence with her husband and
drove to his place of employment in Pine Plains, New York. She and her husband
left their residence on Ancramdale Road and after transiting local roadways
turned left and proceeded south on State Route 82. She dropped her husband at
work at approximately 6:55 a.m. and proceeded north on Route 82 intending to
return home following the same route she had used earlier that morning. As she
continued north on Route 82 Mrs. Hay entered a portion of the roadway which
curved to the left at an approximate speed of 35
. The witness testified "I was
approaching and a deer jumped out over the left side of me here on the road and
it scared me . . . I swerved a little bit to the right and put on my brake . .
. I slid off to the right side of the road" (Tr.
. Her vehicle continued forward striking
"bushes or something" (Tr. p. 15) and then a stump. According to the witness
"there was a big bang and that's it" (Tr. p. 15).
Mrs. Hay identified Exhibits 8, 9, 10 and 11 as photographs accurately
depicting the stump with which her vehicle collided. She described weather
conditions at the time as good and stated that in response to the deer entering
the roadway she swerved her vehicle and stepped on her brakes. As the vehicle
continued forward the front and rear passenger side wheels of her vehicle left
the roadway while both driver side wheels remained on the pavement. She heard
a banging on the side of the car as she passed some trees and then struck the
stump depicted in the photographic exhibits. Mrs. Hay recalled striking the
stump and nothing further.
On cross-examination the claimant confirmed her testimony at an examination
before trial in which she testified that "I observed a deer jump off the bank
right in front of me . . . [a]nd it scared me. That's the end. I don't
remember nothing" (Tr. p. 23).
With regard to the additional details supplied in her trial testimony Mrs. Hay
stated that she was probably aware of the facts, but did not recall them, at
the time of her deposition.
The claimant identified Exhibits A, B, C, D, E and F, which she acknowledged
reflect the presence of trees along Route 82 at the accident site, as
photographs accurately depicting the area where her accident occurred. Mrs. Hay
confirmed that road conditions did not play a part in causing her to leave the
roadway and denied that she steered her vehicle off the highway after observing
the deer. Rather, she stated that she applied her brakes which caused her
vehicle to slide to the right.
Claimant next called New York State Trooper William J. Mulrein, III. Trooper
Mulrein testified that in June 2003 he was stationed at the State Police
barracks in Livingston, New York where he performed routine patrol duties in
southern Columbia County. On the morning of June 17, 2003 Trooper Mulrein
received a radio call at the State Police barracks in Livingston advising him of
an accident which had occurred in Ancram, New York, approximately 10 - 15 miles
from the Livingston barracks. The trooper responded to the scene of the
claimant's accident and observed that fire and EMS personnel had already arrived
as he approached the accident site from the north on Route 82. He pulled his
vehicle to the side of the road and first ensured that the claimant was
receiving medical attention. Once he determined that Mrs. Hay was receiving
appropriate treatment and that the scene was otherwise secure he began his
investigation of the accident, the results of which are contained in the police
accident report received in evidence as Exhibit 22.
Trooper Mulrein stated that he was familiar with the location on Route 82 where
the accident occurred as he had grown up in the area and had routinely covered
that area on patrol while stationed at the State Police barracks in Pine Plains,
New York. Although he had investigated many accidents on Route 82 he had not
previously responded to any motor vehicle incidents at the specific location
where the subject accident occurred. With regard to his accident investigation
Trooper Mulrein testified that he and his partner, Trooper Eric Barns, obtained
license plate and other vehicle information and then began to observe the area
where the vehicle exited the roadway. He did not take any measurements at the
scene but stated that his observations led him to conclude that Mrs. Hay's
vehicle exited the roadway while proceeding north on Route 82, struck one or
more trees, continued in a northerly direction where it struck a tree stump and
re-entered the roadway coming to rest in the southbound lane of Route 82.
The trooper described the weather that day as clear and road conditions as dry.
He did not reach any conclusions with regard to the speed of the claimant's
vehicle at the time of the accident nor was he aware of the speed limit at that
particular location. "Animal's action" was the only contributing factor to the
happening of the accident noted in the police accident report (Exhibit 22). The
trooper had no recollection of the stump prior to the claimant's accident
stating "[i]t doesn't stand out as a stump that I remember seeing" (Tr. p. 50).
Trooper Mulrein could not recall whether there was accident debris, oil or
antifreeze on or around the stump at the time he performed his accident
Using Exhibits A through E as points of reference, Trooper Mulrein testified
on cross-examination that as one approaches the accident scene in the northbound
lane of Route 82 open farmland is encountered followed by a tree line which is
composed of both young and mature trees and runs parallel to Route 82 on the
right side of the road. He testified that at the scene he observed tire marks
leading from the roadway to a tree within the tree line, which had what Trooper
Mulrein described as a scar (an area where the bark had been torn from the
tree), and continued in a northerly direction approximately 15 feet to the
location of the stump. The trooper confirmed that he noted only "animal's
action" as a contributing factor in the happening of the accident and that the
surface condition of Route 82 at the vicinity of the accident was dry.
On redirect examination Trooper Mulrein testified that his investigation led
him to conclude the claimant's vehicle left the paved portion of Route 82
approximately 30 feet south of the stump, struck the tree where the bark had
been removed and continued north where the center front of the vehicle impacted
the stump. He estimated that the scarred tree was approximately 10 to 15 feet
from the road surface and that the stump was located approximately 8 feet from
the edge of the paved roadway.
The claimant's husband, Gene A. Hay, was called to the stand and testified that
on June 17, 2003 he resided with his wife on East Ancram Road in Ancramdale, New
York. At that time he was employed as a truck driver for Neburdick Brothers
located in Pine Plains, New York. He described the route taken that morning
from the couple's residence on East Ancram Road approximately five to six miles
to his place of employment. Mr. Hay testified that his wife dropped him at
Neburdick Brothers at approximately 6:55 a.m. and that shortly thereafter his
son appeared and informed him that the claimant had been involved in an
accident. He and his son traveled to the accident scene on Route 82 where his
older son had already arrived.
Mr. Hay testified that various vehicles and approximately 20 - 25 individuals
including Ancram Fire Department personnel were at the scene upon his arrival.
He observed his wife within the passenger compartment of her vehicle and that
the right rear wheel and axle had detached from the vehicle. He described the
front portion of the vehicle as "all caved in" (Tr. p. 87) and stated that the
vehicle's air bag had deployed. During the one-half to three-quarters of an
hour Mr. Hay was at the accident scene he also observed antifreeze on the ground
at or near the stump and also noticed that the stump, which he estimated was
approximately four to five feet tall, had apparently been cut using a chainsaw
on two sides at the height of approximately four or five inches above grade.
He also observed tire tracks, one track running approximately 4 to 5 feet from
the edge of the paved portion of Route 82 and a second running along the edge
of the shoulder.
Mr. Hay testified that he had traveled Route 82 at the accident site hundreds
of times in the years preceding the accident. He recalled the tree which had
been cut to create the stump and identified it as depicted in Exhibit 29. He
stated that the tree began to die and was cut down some time during 1999. He
had no information with regard to who was responsible for cutting down the
On cross-examination Mr. Hay stated that he never complained to the Department
of Transportation regarding either the tree or the stump. With regard to the
tire tracks he observed at the scene, Mr. Hay related that he noticed that
sand, which ran along the edge of the roadway, was "all scuffed up" (Tr. p.
109) and interpreted that circumstance as a mark left by his wife's vehicle. He
did not see any other markings upon the pavement itself. He testified that
following the accident his wife's vehicle was towed to Jim's Auto Body in Pine
Plains, New York. An individual named John Hughes later took possession of the
vehicle and turned it into scrap metal, apparently without the witness's
permission and without any compensation having been paid.
Lance MacMillan was next called as a witness by the claimant. Mr. MacMillan
related that he is currently employed by the New York State Department of
Transportation (DOT) as an Assistant Regional Transportation Maintenance
Engineer, a position he has held since April 2005. Prior to that date the
witness had been employed in the Department of Transportation construction,
design and maintenance groups. The witness stated that as an Assistant Regional
Transportation Maintenance Engineer he oversees special crews including two
regional tree crews, two regional pavement striping crews and an equipment
operator instructor crew. One tree crew is headquartered in Poughkeepsie, New
York and the other in Maybrook, New York. The tree crew located in Poughkeepsie
covers the eastern half of Region 8 including Columbia, Dutchess, Putnam and
The witness examined Exhibit 25, record plans pertaining to the "Reconstruction
on Routes 82 and 22, a length of 10.5 miles, Columbia and Dutchess Counties."
He identified the site of claimant's accident as being depicted in the portion
of Route 82 shown on Page 22-R of the record plans. He agreed that a survey was
likely performed in preparation of the record plans but did not know where the
surveys were stored by the Department. Mr. MacMillan testified that the State
acquired Route 82 from Columbia County sometime during the 1980s.
Mr. MacMillan related that Region 8 maintains two regional tree crews, one
assigned to the east side of the Hudson River and the other to the west side of
the river. Each crew is composed of between five and six individuals. Members
of the regional tree crews do not identify hazardous trees to be removed but,
rather, depend upon individual residencies to designate those trees requiring
He next identified Exhibit 26 as the New York State Highway Maintenance
Guidelines ("Guidelines") in effect on June 17, 2003. He related that section
3.211 of the Guidelines provides that residency maintenance personnel are
permitted to remove smaller trees as well as larger trees which are not located
near utility lines or buildings. All other trees would be felled by the
regional tree crews.
Section 3.212 of the Guidelines provides:
"Objective: To remove all dead, dangerous and diseased trees from the right of
way where they present a hazard to the traveling public and interfere with
proper drainage and sight distance. In addition, trees may be removed as
directed by the Resident Engineer to improve the appearance of the highway
Mr. MacMillan testified that the provisions of section 3.212 apply to both
residency personnel and the regional tree crews. He was unable to cite a
definitive source for a definition of the term "hazardous tree," testifying that
employee training classes provide training in identifying hazardous trees based
upon their potential to fall into or otherwise affect vehicles on the roadway.
Varied sources are available for identifying hazardous trees, including
individuals who travel the road, crews responsible for maintaining the road,
resident engineers and local citizens and homeowners. According to Mr.
MacMillan "[a] hazardous tree can be lying across the road after a storm, a
hazardous tree can be something dead and rotten thirty feet from the roadway"
(Tr. p. 132-133).
The witness next addressed the provisions of section 3.213 of the Highway
Maintenance Guidelines which require "[t]he highways should be checked at least
twice a year to locate and schedule removal of dead and hazardous trees" (Tr. p.
134). It is the residency staff which is charged with the responsibility of
identifying hazardous trees. Although section 3.213 requires that highways be
checked at least twice a year, Mr. MacMillan testified that such inspections
occur "more than that" (Tr. p. 134). He could not state whether the tree which
had been cut to form the stump involved in the claimant's accident was within
the State's right-of-way as shown on the record plans (Exhibit 25). The
witness acknowledged, however, that although the plans are merely a graphic
representation of the roadway, they appear to show that the right-of-way line
runs through the center of a tree located at the same point on the right side
of Route 82 as the stump encountered by the claimant. In order to determine the
exact location of the right-of-way requires the services of a licensed land
surveyor. Upon further questioning by the Court, Mr. MacMillan confirmed that
the record plans show the right-of-way boundary running through the central
portion of the tree, which he circled for purposes of identification. The
witness was unable to define the terms "clear area" and "clear zone" or to
distinguish one from the other. He did not know what "clear area," or "clear
zone" requirements applied to the portion of Route 82 where the accident
occurred on June 17, 2003.
The witness was next questioned with regard to the provisions of Highway
Maintenance Guidelines section 3.215, which provides:
"Trees shall be cut as close to the ground as possible to avoid interference
with mowing operations. Stumps in built up areas in front of residences and
within 30 feet clear area (from edge of pavement) etc . . . should be scheduled
for removal by chipping or grubbing."
Mr. MacMillan agreed that the stump at issue here was not cut at ground
level and most likely constituted a violation of the direction contained in
section 3.215 of the Guidelines, if in fact state employees were involved in
cutting the tree. He went on to state that given the proximity of the stump (or
tree) to the highway boundary shown on the record plans, Department road
maintenance employees would likely be hesitant to cut the stump because "a lot
of times we get into trouble for going off of our boundary without proper cause"
(Tr. p. 149).
Although the Highway Maintenance Guidelines address the removal of stumps in
front of residences and within a thirty-foot clear area from the edge of the
pavement, the witness estimated that there were "thousands of trees within that
30 feet" (Tr. p. 149) at or near the accident site on Route 82.
With regard to section 3.701 of the Highway Maintenance Guidelines which
provides "it is essential that the foremen know the right-of-way limits on all
sections under their jurisdiction", Mr. MacMillan testified that most
information regarding right-of-way boundaries is passed down informally over
time or through markers established to determine the boundary line of adjoining
Finally, Mr. MacMillan testified that he did not know who cut the subject tree
nor does he know when the tree was cut.
On cross-examination the witness testified that a guideline is "[s]uggested
practice to follow when addressing certain issues" (Tr. p. 155). Referring to
Exhibit 25, he confirmed that the type of construction performed pursuant to the
plan was "asphalt concrete resurfacing" (Tr. p. 157) as set forth in the upper
right hand corner of the cover page of the exhibit. He described asphalt
resurfacing as a process in which an existing roadway is overlaid with asphalt
in order to improve road quality and friction resistance. Road reconstruction
was described as "ripping out the existing roadway and rebuilding it" (Tr.
p.158). With regard to the project detailed in Exhibit 25, the witness stated
that the amount of truing and leveling course material (31,000 tons) and top
course material (14,000 tons) relative to the amount of base (496 tons) and
binder (675 tons) used in the work led him to conclude that the majority of work
performed pursuant to the plans involved the application of an asphalt overlay
to the existing road surface. Exhibit W was identified as a road history report
for 2.75 miles of Route 82 from the Dutchess County line to Ancramdale,
including the accident site.
Charles Lewis was called to the stand. Mr. Lewis identified himself as the
Regional Tree Crew Supervisor for Region 8 which encompasses seven counties from
the Whitestone Bridge to Rensselaer County, New York and includes both the east
and west sides of the Hudson River. Mr. Lewis has supervised Region 8 tree
crews for approximately 25 years and described his duties as ensuring that trees
identified by residencies are removed in a timely and safe manner. A typical
tree crew is composed of five individuals who are largely provided on-the-job
training in the use of a bucket truck, chain saws and chippers. The regional
tree crews do not work independently of the residencies but rely upon residency
personnel to identify trees to be removed. The regional crews visit each county
"a couple times every year" (Tr. p. 183). Although the witness was familiar
with a document referred to as a "tree list" he was not provided such a list but
would rather be accompanied to sites selected by residency personnel who would
set up the work area where tree removal was to be performed.
Mr. Lewis testified that he had no recollection of cutting trees on Route 82 in
1999, 2000 and 2001. He was uncertain whether the regional tree crews removed
trees on Route 82 in 2003. When asked whether there were rules governing the
manner in which tree removal work was performed, the witness responded "[w]e
take it down in the safest way possible and cut them to the ground" (Tr. p.
188). Trees were cut as close to the ground as possible for safety reasons,
primarily to avoid leaving fixed objects along the side of the roadway. Mr.
Lewis stated that he was familiar with the stump at issue herein and had visited
the accident site. When asked whether he had any memory of his tree crew having
cut the tree he answered that he did not. Upon further questioning by the Court
the witness stated that, in fact, his tree crew did not cut the tree. He was
unable to identify the right-of-way boundary at the site of the claimant's
accident and confirmed that photographic exhibits shown him at his deposition
demonstrate that the stump had been cut, although not fully, just above ground
level. Mr. Lewis testified that he did not know who made the cuts.
On cross-examination Mr. Lewis confirmed his previous testimony on direct that
his tree crews were not involved in cutting the tree and creating the stump with
which the claimant's vehicle collided.
Wayne Shutts was called to the stand and testified that he is a Highway
Maintenance Supervisor II in the Columbia County Residency. As such he is
involved in planning and scheduling maintenance activities on the state highways
within Columbia County. Mr. Shutts held the same position in 1999. Although he
was made aware that a car had collided with a stump on Route 82, he did not
visit the site immediately but rather noticed the stump while performing
guardrail repair in the area approximately one year following the accident. At
that time Mr. Shutts observed that the stump appeared to have been damaged in
the accident. He estimated that the stump was approximately three to four feet
from the edge of the pavement and was approximately three to four feet in height
and 18 inches in diameter. He subsequently visited the site a second time with
other individuals and observed what appeared to be fencing which ran along and
within the tree line at the site of the accident. The witness reviewed various
photographic exhibits (Exhibits A - M) and identified certain of the photographs
which depicted the fencing he had observed while at the site.
Mr. Shutts testified that maintenance crews perform various functions along
Route 82 including sweeping sand from the road following winter, mowing grass in
the spring and fall and performing maintenance activities throughout the year.
Although the residency has employed independent contractors to cut trees in the
past, including along Route 82, he was unable to identify which contractors were
so employed between 1999 and 2003.
On cross-examination Mr. Shutts testified that a customer service request is a
form completed by Department of Transportation personnel in response to
complaints received from the public. Such complaints would generally include
those concerning trees or stumps alongside state highways. As a Highway
Maintenance Supervisor, Mr. Shutts would investigate the customer service
request and prepare an evaluation of the matter. He could not recall ever
investigating a customer service request in the year 2000 concerning removal of
a tree stump.
The claimant called Francis Pizza to the stand. Mr. Pizza testified that he
has been the Assistant Resident Engineer in the Columbia County DOT Residency
for seventeen years and is currently Acting Resident Engineer in Columbia
County. Mr. Pizza testified that he visited the scene of claimant's accident
with certain other individuals and acknowledged that he observed the stump
depicted in claimant's Exhibit 31. He did not know who cut the tree or when it
was cut. Nor was he aware of the stump depicted in Exhibit 31 until after the
claimant's accident. The witness confirmed that the stump constituted a fixed
object, a term which could include trees, telephone poles, stumps, signs and
outcroppings. Mr. Pizza testified that he was not familiar with the formal
definition of the term "clear area" which he described as a concept primarily
addressed by design engineers. He had been involved with the issue of a clear
area in the context of highway maintenance only with regard to "guiderail
issues" (Tr. p. 245). He did not know whether a clear area had been
established on Route 82 at the site of claimant's accident.
Mr. Pizza agreed that according to the Highway Maintenance Guidelines, which
the witness testified he generally followed in performing his duties as Acting
Resident Engineer, the objective of the DOT tree removal procedure was the
removal of dead, dangerous and diseased trees from the right-of-way where they
present a hazard to the traveling public and/or interfere with proper drainage
and sight distance. He stated that although Section 3.213 of the Guidelines
provide that the roadway should be checked at least twice a year to identify and
schedule the removal of dead and hazardous trees, the actual policy in place
within the Columbia County Residency was to perform such inspections "in normal
operation of all patrols" (Tr. p. 248).
With regard to the roadwork described in Exhibit 24, including that portion of
Route 82 where the claimant's accident occurred, Mr. Pizza testified that the
surface of Route 82 as well as the gravel shoulders were paved but that the work
did not change the configuration of either the roadway or shoulders.
On cross-examination the witness testified that the sources available to
support the operations of residencies are limited in terms of money, personnel
and equipment. He described Route 82 near the Dutchess-Columbia County
boundary as "a very rural road" (Tr. p. 260) and related that several major
highways transect Columbia County including the Taconic State Parkway and State
Routes 9, 9H and 23. The Court received in evidence Exhibit Y, data pertaining
to the average annual daily traffic volumes recorded in the 2003 State Highway
Sufficiency Ratings. Mr. Pizza identified the data as part of an official
publication of the State of New York which he utilizes in the course of his
employment as a Resident Engineer/Assistant Resident Engineer. Specifically,
the data provides information regarding the annual average daily traffic volume
on state highways as reported in the 2002 Traffic Volume Report. Exhibit Y
reflects an average annual daily traffic volume of 850 cars within a 2.74 mile
portion of Route 82 beginning at the Dutchess County line and proceeding north
into Columbia County. The witness testified that the average annual daily
traffic volumes as reflected in the Highway Sufficiency Ratings are
significantly higher on other highways within Columbia County. The witness
testified that those roads with higher traffic volume or more dense population
receive first priority in determining the allocation of residency assets.
On redirect examination Mr. Pizza acknowledged that page 22-R within Exhibit 25
appears to include a graphical representation of a tree, in the same location as
the stump with which claimant's vehicle collided, existing at the site at the
time the survey underlying the plans was prepared.
On re-cross-examination Mr. Pizza testified that page 22-R reflects the
existence of many trees along the highway boundary of Route 82. He further
testified that Exhibits A and B both depict a large tree located approximately
the same distance from the paved portion of the highway as the stump with which
the claimant's vehicle collided.
The final witness was Conrad P. Hoffman, a Licensed Professional Engineer and
Land Surveyor. Mr. Hoffman described his employment history, including his
involvement as City Engineer in the City of Mechanicville, New York and Town
Engineer for the Town of Stillwater, New York. Mr. Hoffman testified that he is
familiar with the provisions of the New York State Highway Design Manual and
Highway Maintenance Guidelines as the result of his involvement with municipal
The witness was retained by the claimant for the purpose of evaluating whether
the stump located at the site of claimant's accident on State Route 82
constituted a hazard. He visited the site on September 1, 2004 where he
examined the stump and took measurements and photographs. According to the
witness both lanes of traffic on Route 82 at the accident site measured
approximately 11 feet in width. The paved shoulder of the northbound lane of
Route 82 was approximately three feet wide while the southbound shoulder
measured approximately two feet in width. He testified that the stump measured
43 inches in height and 23 inches in diameter and was located three feet from
the edge of the northbound lane shoulder. There were ditches on both sides of
the roadway. While at the scene Mr. Hoffman walked to a point approximately
one-half mile south of the stump and then walked forward observing the approach
to the accident site. While doing so, the witness took photographs and observed
existing signage which he determined was appropriate.
Mr. Hoffman testified that Exhibit 49 depicts a saw cut which extends
approximately half-way through the base of the stump. He stated that the
highway reconstruction plans received into evidence as Exhibit 25 contain a
graphic representation of a tree at the site where the stump was located at the
time of claimant's accident. He testified that Exhibit 29 is a photograph taken
from a photo log on June 30, 1999 that shows a tree at the stump's location
leading the witness to conclude that the tree was cut sometime subsequent to
The witness testified that the plans received in evidence as Exhibit 25 are
"as-built plans" (Tr. p. 310) prepared following completion of the project.
The plans indicate an award date of April 5, 1991; a completion date of June 22,
1992 and that the work was finally accepted by the State on August 12, 1992.
Based upon his review of the plans, Mr. Hoffman testified that the work
undertaken pursuant to the contract was "a reconstruction project" (Tr. p.
311-312) based upon the following analysis:
"These plans say – the title of them is Reconstruction on Routes 82 and
22. So I believe it's a reconstruction project because the State says that it's
a reconstruction project. They don't call it an overlay, they don't call it a
rehabilitation, they call it a reconstruction" (Tr. p. 312).
Mr. Hoffman defined the term "clear area" as an obstacle-free area alongside a
highway where vehicles which leave the roadway can recover without sustaining
significant damage. He stated that the clear area on Route 82 at the site of
claimant's accident was three feet. The witness defined a fixed object as
"something that is located in the clear area, and generally, it's an object that
can be removed" (Tr. p. 319). He testified that photographic evidence as well
as the plans received as Exhibit 25 illustrate that a fixed object, a tree, was
located within three feet of the pavement edge at the time the plans were
prepared. In the opinion of the witness, permitting such a fixed object to
remain within three feet of the highway edge failed to comply with good and
accepted highway maintenance standards. In addition, Mr. Hoffman provided his
opinion that "[a] stump located within three feet of the edge of the shoulder is
a roadside obstacle and a hazard" (Tr. p. 326) which should have been removed
from the side of the highway.
On cross-examination the witness acknowledged that the stump was not located
within the paved portion of Route 82. He was unable to state when Route 82 was
originally constructed or what standards applied at that time.
On redirect examination, Mr. Hoffman testified that the plans pertaining to
work done on Route 82 (Exhibit 25) illustrate that work was performed
immediately adjacent to the paved shoulders which he interpreted as
demonstrating "that the plans show a clear area of ten feet on either side" of
the roadway (Tr. p. 341).
The witness testified on re-cross-examination that the roadwork plans were
based upon a field survey. He acknowledged that numerous trees are shown within
the State's right-of-way on page 22-R. When asked whether all trees within ten
feet of the highway should have been removed as part of the road project he
responded "[a]bsolutely, yes, sir" (Tr. p. 342). In his opinion, all trees
within ten feet of the edge of the paved portion of the roadway should have been
either removed or barricaded as part of the road reconstruction project.
Upon further inquiry by the Court the witness testified that, in fact, the
Highway Design Manual does not require maintenance of a ten-foot clear zone.
His testimony that such a ten-foot zone was required was based upon information
contained in a document which applies to roads other than State highways. The
Highway Design Manual does, however, address the issue of clear areas in
"Roadside clear area. The horizontal distance clear of fixed objects given in
Tables 2-1 and 2-2 . . . should be followed whenever feasible. Strong
overriding issues must be involved when it is proposed not to provide this.
Guiderail should be provided when these distances cannot be met. Trees within
these distances should be removed if local attitudes are such that it is
possible" (Tr. p. 350).
This concluded the evidence adduced at trial.
It is well-settled that the State has a nondelegable duty to maintain its
highways in a reasonably safe condition (Friedman v State of New York, 67
NY2d 271 ). As a general rule, however, this duty is limited to those
portions of the highway intended for vehicular use (Tomassi v Town of
Union, 46 NY2d 91 ). Thus, where the paved portion of the highway is
adequate for safe passage "travel beyond those limits on unimproved land
adjacent to the roadway is generally not contemplated or foreseeable and
therefore the [State] is under no duty to maintain it for vehicular traffic"
(Stiuso v City of New York, 87 NY2d 889, 891 ; Sherman v County
of Cortland, 18 AD3d 908 , lv denied 5 NY3d 713 ). As
stated by the Court of Appeals in Tomassi,
"Undoubtedly, certain risks are unavoidable. Especially in rural locales, such
objects as utility poles, drainage ditches, culverts, trees and shrubbery are
often in close proximity to the traveled right of way (see Hayes v
Malkan, 26 NY2d 295, 297). But for the careful driver, the placement of
these items near the pavement creates no unreasonable danger. Often they simply
enhance the beauty of the highway, prevent the flooding of roadways and serve
the needs of area residents" (id. at 97).
Since Tomassi was decided it has been repeatedly recognized that "the
presence of trees or shrubbery in close proximity to the roadway is to be
expected in rural areas and does not create an unreasonable danger for the
careful driver" (Duger v Estate of Carey, 295 AD2d 878, 879 ;
see also Owens v Campbell, 16 AD3d 1000 , lv denied 5
NY3d 704 ; Kimber v State of New York, 294 AD2d 692 , lv
denied 99 NY2d 501 ; Shevalier v Bentley, 268 AD2d 622 ).
The fact that a tree or other object is situated within the State's right-of-way
triggers no duty of care so long as it is outside the travel portion of the
highway (Cave v Town of Galen, 23 AD3d 1108 ; Ingoglia v
Leshaj, 1 AD3d 482 , lv denied 2 NY3d 705 ; Clark v
City of Lockport, 280 AD2d 901 , lv denied in part and dismissed in
part 96 NY2d 932 ; Adamy v Ziriakus, 199 AD2d 1018 ,
lv denied 83 NY2d 755 ).
The Court of Appeals decision in Tomassi can be traced, in part, to
Kinne v State of New York (8 AD2d 903 , affd 8 NY2d 1068
) in which the Court held that to the extent the State provided "an
unobstructed pavement reasonably adequate to accommodate traffic it is
permissible for it to use the remaining land within the boundary lines of the
highway for other useful purposes", including trees which enhance the beauty of
the highways (id. at 903). Similar to the facts in the case at bar, the
claimant in Kinne struck a tree located three feet from the shoulder of
the highway, which was twenty feet in width consisting of two lanes of ten feet
each. Having determined that the travel portion of the highway was adequate,
the Court declined, for policy reasons, to impose a duty of care in favor of the
operator of an errant vehicle, stating: "Carried to its logical conclusion, the
theory of negligence applied to this case would require that the State cut and
remove every tree located within the extreme highway limits along every State
highway in the State of New York, or permit them to remain at its peril of being
subject to damages" (id. at 903; see also Ellis v State of New
York, 16 AD2d 727 , affd 12 NY2d 770 ).
The Tomassi Court delineated the bounds of a municipality's duty to
maintain its highways in a reasonably safe condition by reference to such
factors as the terrain encountered and fiscal practicality. In doing so, the
Court declined to impose a duty "which transcends that imposed by reasonable
care and foresight – resulting in the conversion of the town into an
insurer of the safety of its highways (id. at 98)." Though not
inconsistent with this rule, certain so-called exceptions have emerged
(see Hill v Town of Reading, 18 AD3d 913 , citing
Cave v Town of Galen, 4 Misc 3d 1026[A] [Ct Cl 2005], affd 23 AD3d
One common exception applies where roadside hazards are so inherently dangerous
that the state or municipality has a duty to erect barriers of sufficient
strength to hold an automobile traveling at a reasonable rate of speed (Hill
v Town of Reading, supra, citing Gomez v New York State
Thruway Auth., 73 NY2d 724 ; Temple v Chenango County, 228 AD2d
938, 939-940 ; Brady v City of New York, 39 AD2d 600, 601 ).
These cases involve points of particular danger such as bridges (Brady v City
of New York, supra), roadways abutting steep embankments (Temple
v Chenango County, supra) and known dangerous conditions opposite a
T-intersection (McDonald v State of New York, 307 AD2d 687 ). In
these cases the roadside condition "could reasonably be expected to result in
injury" absent the implementation of precautionary measures (Preston v State
of New York (6 AD3d 835, 836 , lv denied 3 NY3d 601 ;
Chalk v State of New York, 147 AD2d 810, 811 ; see also
Kimber v State of New York, supra). Without notice of the
specific dangerous condition, however, liability cannot be grounded upon the
neglect of that duty (id.). Here, no points of particular danger existed
which could reasonably be expected to result in injury absent the implementation
of precautionary measures. The rural roadway where this accident occurred was
relatively straight and level and there were no prior accidents which would have
alerted the State to the potential danger.
Similarly, a duty to maintain trees adjacent to the highway has been recognized
where they could reasonably be expected to pose a danger to travelers (Leach
v Town of Yorktown, 251 AD2d 630 ; ,Hilliard v Town of
Greenburgh, 301 AD2d 572 ; Guido v State of New York, 248
AD2d 592 ; Rinaldi v State of New York, 49 AD2d 361 . In
such cases "[a] municipality is on notice to make a close inspection only when
it is determined that a tree is 'hanging precariously' over the roadway or
'leaning precariously toward the [roadway]' (Collado v Incorporated Town
and/or Vil. of Freeport, 6 AD3d 378, 379  [citations omitted]).
These cases are easily distinguishable from the instant matter as they involve
foreseeable danger to users of the travel portion of the roadway. Here, in
contrast, the tree stump with which the claimant collided posed no foreseeable
danger to careful users of the travel portion of the roadway.
While perhaps not an "exception" to the no-duty rule set forth in
Tomassi, the Court of Appeals in Stiuso v City of New York,
supra, made clear that defects in the paved portion of the shoulder of
the roadway which result in an off-the-road collision may serve as a basis for
the imposition of liability (see also Herzog v Schroeder, 9 AD3d
669 ; Thompson v County of Putnam ,163 AD2d 517 ; Klimek
v Town of Ghent, 114 AD2d 614, 616 ). There, the evidence adduced at
trial indicated that the roadway was unsafe due to a near vertical drop-off at
the side of the road caused by repeated road resurfacing. Here, unlike the
facts in Stiuso, no allegation is made that any defect in the paved
portion of the road contributed to the accident. Rather, the facts in the
instant action are more analogous to those in Alberti v Rydill (152 AD2d
520 ) where the plaintiff's vehicle left the traveled portion of the
roadway striking a two-foot high tree stump located some two and one-half to
three feet from the paved highway. The Court held, as a matter of law, that the
accident was caused by the negligence of the driver of an oncoming vehicle and
that the proximity of the tree stump to the highway did not create an
unreasonable danger to travelers.
Claimant's allegations of negligence in this case stem solely from the
existence of the tree stump located three to four feet from the edge of the
paved shoulder of the highway. No defects in the roadway were alleged to have
contributed to the accident nor were any particular points of danger in the
character of the roadway identified. In this regard the presence of a tree in
close proximity to a roadway, or the stump remaining after a tree is cut, does
not constitute the type of danger to which the "particular points of danger"
doctrine applies. By all accounts the roadway where the accident occurred was
unobstructed and reasonably adequate to accommodate traffic. To impose a duty
of care for the roadside condition complained of in this case would result in
establishing a standard of care akin to that of an insurer, a proposition
explicitly rejected by the Court of Appeals in Tomassi.
Claimant also relies on purported violations of the Highway Design Manual (HDM)
and the Highway Maintenance Guidelines to establish a violation of the
applicable standard of care. According to Mr. Hoffman, the claimant's expert,
both the HDM and the Guidelines require a thirty-foot clear area adjacent to the
roadway which is calculated by reference to the design speed of the highway.
However, it is well-settled that "compliance with design standards adopted after
the construction of a highway is not required unless the municipality undertakes
'significant repair or reconstruction' that would provide an opportunity for
compliance with the new standards" (Cave v Town of Galen, 23 AD3d 1108,
1109 , quoting Preston v State of New York, 6 AD3d 835,
supra, 835-836; see also Vizzini v State of New York, 278
AD2d 562 ; Benjamin v State of New York, 203 AD2d 629 ;
Rittenhouse v State of New York, 134 AD2d 774 ). Otherwise, "the
State is not obliged to undertake expensive reconstruction simply because
highway safety design standards have changed since the original construction"
(Van De Bogart v State of New York, 133 AD2d 974, 976 ). Here, it
is undisputed that the applicable standard set forth in the HDM was adopted
after Route 82 was constructed. Unless the work performed as part of the 1990
project is considered significant repair or reconstruction, therefore,
compliance with the HDM was unnecessary.
Claimant's expert opined that the work performed in the early 1990's
constituted significant repair or reconstruction based, in part, upon the fact
that the project was entitled "Reconstruction on Routes 82 and 22". He
testified in this regard that "the title [of the plans] is Reconstruction on
Routes 82 and 22. So I believe it's a reconstruction project" (Tr. p. 312).
Mr. Hoffman indicated that if application of an asphalt overlay was the only
work performed, it would not properly be classified as reconstruction. Hoffman
contended, however, that the work performed on Route 82 included not only an
asphalt overlay but the rehabilitation of the shoulders and roadside ditches as
First, the Court notes that despite the inclusion of the term "reconstruction"
in the title of the plans, the cover page of the record plans makes clear in the
upper right hand corner that the type of construction undertaken was "asphalt
concrete resurfacing." Secondly, the work performed during the 1990's project
did not, in the Court's view, constitute significant repair or reconstruction
which is characterized by "modernization or correction of the road, which is the
sine qua non of a reconstruction project" (Benjamin v State of New
York, 203 AD2d 629, 630 , citing Mason v State of New
York, 180 AD2d 63, 66 ). Examples of work which have been held
insufficient to trigger mandatory compliance with the HDM include the flattening
of a curve near a house and the filling in of a nearby pond (Kissinger v
State of New York, 126 AD2d 139 ); median barrier replacement, bridge
rehabilitation and repavement, new drainage work and the installation of light
poles (Guan v State of New York, 16 Misc 3d 1103[A] [Ct Cl 2007]); and
the milling and resurfacing of a roadway (Ryan v State of New York, 7
Misc 3d 1025 [A] [Ct Cl 2005]). The renovation of the highway in this case
consisted of resurfacing of the roadway and rehabilitation of the ditches. More
than this is necessary to establish the type of significant repair or
reconstruction requiring compliance with then current highway design standards.
Claimant's reliance on the Highway Maintenance Guidelines is similarly
misplaced. First, evidence establishing a breach of guidelines which transcend
the standard of reasonable care cannot be considered negligence (Gilson v
Metropolitan Opera, 5 NY3d 574 ; Galapo v City of New York, 95
NY2d 568 ). Here, it is clear that imposition of a duty to clear-cut
trees which pose no unreasonable danger to the careful driver transcends the
duty of care owed by the State to the traveling public (Tomassi v Town of
Union, supra; Hamilton v State of New York, 277 AD2d 982
). Second, while the testimony established that the Guidelines are
generally followed where possible, it is clear that the particular guidelines in
question are aspirational and do not alone afford a basis for finding a legal
duty. Accordingly, the Highway Maintenance Guidelines provide no basis for the
imposition of a duty to remove the tree stump in question.
In this case there is no proof as to the identity of the individual(s) who cut
the tree and created the stump, which claimant does not dispute was located on
unimproved land outside the paved portion of the highway. Nor is there proof
of prior accidents involving either the tree or stump which would have provided
the defendant notice of a specific dangerous condition. The claimant does not
allege that the road surface or shoulders played any role in the happening of
the accident and claimant's proof was insufficient to establish that the work
performed on Route 82 during the 1990's was such as to mandate compliance with
modern concepts such as a "clear area" or "clear zone" not existing at the time
the roadway was originally constructed. As a result, the State may not be found
liable for the failure to remove the stump which caused claimant's injuries as
it fulfilled its duty to maintain its highways in a reasonably safe condition
for use by the public. Accordingly, the claim is dismissed. All motions not
specifically addressed herein are denied.
Let judgment be entered accordingly.
December 7, 2007
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
.The witness testified that the speed limit on
this portion of Route 82 was "about 45".
.Parenthetical references including "Tr."
refer to the trial transcript.