New York State Court of Claims

New York State Court of Claims

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 post-trial decision.

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:
Conway and Kirby, LLPBy: Thomas A. Conway, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Frederick H. McGown, III, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 7, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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, 2007.

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 m.p.h[1]. 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. p.14)[2]. 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 investigation.

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 tree.

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 Westchester Counties.

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 removal.

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 roadside."
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 private property.

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 clients.

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 June, 1999.

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 Section 2.05:
"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 [1986]). 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 [1978]). 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 [1995]; Sherman v County of Cortland, 18 AD3d 908 [2005], lv denied 5 NY3d 713 [2005]). 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 [2002]; see also Owens v Campbell, 16 AD3d 1000 [2005], lv denied 5 NY3d 704 [2005]; Kimber v State of New York, 294 AD2d 692 [2002], lv denied 99 NY2d 501 [2002]; Shevalier v Bentley, 268 AD2d 622 [2000]). 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 [2005]; Ingoglia v Leshaj, 1 AD3d 482 [2003], lv denied 2 NY3d 705 [2004]; Clark v City of Lockport, 280 AD2d 901 [2001], lv denied in part and dismissed in part 96 NY2d 932 [2001]; Adamy v Ziriakus, 199 AD2d 1018 [1993], lv denied 83 NY2d 755 [1994]).

The Court of Appeals decision in Tomassi can be traced, in part, to Kinne v State of New York (8 AD2d 903 [1959], affd 8 NY2d 1068 [1960]) 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 [1962], affd 12 NY2d 770 [1962]).

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 [2004], citing Cave v Town of Galen, 4 Misc 3d 1026[A] [Ct Cl 2005], affd 23 AD3d 1108 [2005]).

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 [1988]; Temple v Chenango County, 228 AD2d 938, 939-940 [1996]; Brady v City of New York, 39 AD2d 600, 601 [1972]). 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 [2003]). 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 [2004], lv denied 3 NY3d 601 [2004]; Chalk v State of New York, 147 AD2d 810, 811 [1989]; 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 [1998]; ,Hilliard v Town of Greenburgh, 301 AD2d 572 [2003]; Guido v State of New York, 248 AD2d 592 [1998]; Rinaldi v State of New York, 49 AD2d 361 [1975]. 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 [2004] [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 [2004]; Thompson v County of Putnam ,163 AD2d 517 [1990]; Klimek v Town of Ghent, 114 AD2d 614, 616 [1985]). 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 [1989]) 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 [2005], quoting Preston v State of New York, 6 AD3d 835, supra, 835-836; see also Vizzini v State of New York, 278 AD2d 562 [2000]; Benjamin v State of New York, 203 AD2d 629 [1994]; Rittenhouse v State of New York, 134 AD2d 774 [1987]). 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 [1987]). 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 well.

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 [1994], citing Mason v State of New York, 180 AD2d 63, 66 [1992]). 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 [1987]); 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 [2005]; Galapo v City of New York, 95 NY2d 568 [2000]). 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 [2000]). 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
Saratoga Springs, New York

Judge of the Court of Claims

[1].The witness testified that the speed limit on this portion of Route 82 was "about 45".
[2].Parenthetical references including "Tr." refer to the trial transcript.