New York State Court of Claims

New York State Court of Claims

PINOS v. THE STATE OF NEW YORK, #2007-029-008, Claim No. 108478


Claim by pedestrian who fell into drainage culvert is dismissed. No proof of negligent design or maintenance. Standards applicable to new highway construction not relevant to repaving of existing road.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 21, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages arising out of a November 5, 2001 incident in which she fell after stepping into a drainage culvert alongside Route 306, a State highway in Rockland County. She alleges defendant’s negligence was a proximate cause of the accident.

Claimant testified that she took the bus to and from work on the date in question and at about 5:30 p.m. she arrived back in Pomona, where she lived, and proceeded to walk along Route 306 after getting off the bus. She stated it was raining and very dark and there were no street lights. As she walked along the white line at the side of the road, she heard cars coming from behind her and took one step to the right and “fell into a hole.”[1] She hurt her foot and couldn’t get up until assisted by a neighbor. She did not see the “hole” into which she fell, either while she was lying on the ground or after receiving help, although she identified the area on the shoulder where she fell on a photograph (Exhibit “7”).

On cross-examination, claimant testified she saw the headlights of cars approaching her from behind as she walked along Route 306 in the direction of traffic, including the headlights of the car that “almost hit” her. She stated she was walking on an area that was part pavement and part grass and when this car came towards her, she moved one step to the right, to the grassy area, and fell. She did not notice the white post in the ground just ahead of where she fell, shown on the photograph.

David Costello, a former design engineer with the State Department of Transportation, testified at his March 16, 2005 deposition (Court Exhibit 1) that he was in charge of “minor projects” (id., 5) including pavement reconditioning and preservation, pavement maintenance and resurfacing projects. He was the project manager for a reconditioning or resurfacing project on Route 306 in the subject area that commenced in 1988. Costello, who retired from State service in 1998, did not have much specific recollection of the project or the area of Rockland County at the time of his testimony. He described the road as a “rural country road” (id., 15) with one lane in each direction separated by a center stripe, and white edge lines on each side of the road. There were no sidewalks in this basically rural setting with trees and brush along the roadside and no buildings (see Exhibits 4 through 9 and E through H). Costello indicated that the only provision made for pedestrians on such a road is the shoulder, which, without looking at the job plans, he estimated was three to four feet wide.

Costello was shown a number of photographs, presumably the same ones received at trial, and he identified the white post as a culvert marker, adjacent to a small “cross culvert” – a drainage pipe crossing under the road surface and perpendicular to it. The pole is intended as an aid for maintenance workers so they can find culverts to clean them. He described the shoulder in the area where claimant fell as in “fair to good shape” (id., 33) with some alligator cracking but no pieces missing.

Speaking generally with respect to installation of sidewalks and lighting along State highways, Costello testified that such items are generally initiated by a request from local officials and generally in urban settings unlike the area of Route 306 in question here.

Joseph McHugh, a civil engineer employed by Robson Forensics, Inc., a firm engaged in “investigative engineering,” testified as an expert witness for claimant. He was retained in August 2006 and prepared his report utilizing the information and measurements contained in defendant’s CPLR 3101(d) response summarizing the anticipated testimony of defendant’s expert witness. According to that report, Route 306 in the area of the subject accident was 21’ 3” wide across the travel way (including both lanes, from end line to end line) and the shoulders averaged 2’ 9” in width.

McHugh testified that the average daily traffic count (ADT) was 4,200 vehicles per day, a count that, on a “rural collector” road such as Route 306, called for travel lanes at least 12 feet wide and a clear area on each side of the road of 10 feet, according to both the New York State Highway Design Manual and the AASHTO [2] Manual. Although McHugh referred to standards set forth in both the AASHTO Manual and the Design Manual (which he stated was based on the AASHTO Manual), neither the manual nor any portions thereof were submitted as evidence at this trial.

McHugh referred to excerpts of plans for the 1988 project – titled “Reconstruction on Route 306” and described as “Asphalt Concrete Widening and Resurfacing” (Exhibit C) – and, based primarily on the title, concluded that the AASHTO and Design Manual standards, which are applicable to “new and major reconstruction,” should have applied to the project. No evidence, other than testimony, was introduced referencing the applicable standards in 1988, or at any time. Nevertheless, although he agreed that the AASHTO standards did not apply to resurfacing, restoration or rehabilitation projects, he contended that the 1988 Route 306 project was a “major reconstruction” because it called for widening of the road.

Referring to the drainage culvert that apparently was the “hole” into which claimant fell, McHugh alleged that the presence of the culvert “met the specifications” for the installation of a protective guide rail although, again, he did not reference the specific warrants for guide rail placement, other than noting that he did not know what the roadside slope was in this area, one of the primary guide rail warrants.

Defendant’s expert witness, Nicholas Pucino, was a longtime D.O.T. employee, serving as a design engineer with responsibility for all aspects of highway design and construction. He visited the site of claimant’s accident and took measurements on February 7 and March 17, 2006. Pucino testified that the subject portion of Route 306 was built by Rockland County in 1907 with a fourteen-foot wide travel way on a 24-foot roadway (including the shoulders) and was repaved and widened to a 20-foot travel way in 1944. Pucino advised that 10-foot lanes were in accordance with national policy in the 1940’s.

The road received further attention in 1990 when it was resurfaced, and portions widened, pursuant to the 1988 contract. Pucino noted that the contract was titled “Reconstruction on Route 306” (Exhibit C, 1) but he testified that the word “reconstruction” was a “boilerplate” term used on highway improvement contracts, and that the actual description of the work – “Asphalt Concrete Widening and Resurfacing” – was contained on the right side of the page, under the heading “Type of Construction” (id.). He insisted that highway widening and resurfacing is not reconstruction, which he defined as a “major undertaking”; for example changing the profile of the road, flattening out curves or modifying the drainage pattern.

Although the 1988 project called for widening and resurfacing, Pucino indicated that the contract provided for widening and the addition of curbs and sidewalks in more populated sections farther south but the area at issue here was not widened, merely resurfaced. He categorized this project as an R&P project (resurfacing and preservation), which simply involved putting a new coat of asphalt on the road without changing the profile or alignment. A reconstruction, on the other hand, would address many factors, such as the alignment, geometry, gradient and superelevation of the road, none of which come into play on a repaving or widening project.

Pucino described the subject area of Route 306 as a “typical rural, residential area, heavily wooded with sparse houses,” an evaluation confirmed by photographs submitted by both parties (see e.g. Exhibits 5, 8, H). He stated there was minimal pedestrian traffic in the area and there was no need for sidewalks or “special provision” for pedestrians, and he described the 2001 average daily traffic count of 4,200 vehicles as reflecting a “pretty low-class State highway” with a “low volume” of traffic.

Based on his conclusion that the 1988 project did not constitute “reconstruction” of the road, Pucino asserted that the AASHTO standards referenced by claimant’s expert – requiring 12-foot lanes and 10-foot shoulders – had no application. Moreover, he claimed that very few roads in the State conform to current AASHTO guidelines for new construction, and that “if you could not resurface a road without bringing it up to current standards, roads around the State would fall apart.” Pucino testified that Article 7 of the Highway Design Manual addressed guidelines to be considered when roads are resurfaced and stated these guidelines do not call for 12-foot lanes or 10-foot shoulder widths as do the guidelines for new construction or reconstruction. He stated that when a highway is repaved, State highway planners could consider widening the lanes or the shoulders, taking into account such factors as accident rate and truck usage, but pedestrian use is not a factor in determining shoulder widths.

Addressing the drainage culvert into which claimant fell, Pucino described it as a “small” culvert, 18 inches in diameter, that sat two feet below the highway surface. Since the culvert headwall was flush with the pavement, and the slope down to the culvert was a mild grade (16%) easily traversable by a vehicle, Pucino concluded that the culvert was not a hazard to traffic and there was no need for a guide rail. He stated it would “absolutely not” be good engineering judgment to install a guide rail at this location, since guide rails themselves constitute roadside hazards and here would pose more of a danger to traffic than does the culvert.

As to the condition of the shoulder pavement as shown on the photographs, Pucino agreed that the portion showing alligator cracking was “a little rough,” but he nevertheless maintained it was “sound.” In any event, claimant did not contend that her fall was caused by the condition of the pavement. Her claim rests upon the alleged failure to comply with applicable standards during the 1988 project, specifically, the failure to widen the lanes and the shoulders to bring them within the AASHTO and Design Manual guidelines.

Although neither party submitted any provisions of the Highway Design Manual or the AASHTO Manual, there was no dispute as to their relevant contents, as relevant to this case, nor is there any doubt as to the applicable law. Absent a major reconstruction, or an accident history indicating the existence of a dangerous condition, there is no duty to bring existing roads and highways up to standards applicable to new construction (Cave v Town of Galen, 23 AD3d 1108 [4th Dept 2005]; Preston v State of New York, 6 AD3d 835 [3d Dept 2004]; Vizzini v State of New York, 278 AD2d 562 [3d Dept 2000]; Benjamin v State of New York, 203 AD2d 629 [3d Dept 1994]; Kissinger v State of New York, 126 AD2d 139 [3d Dept 1987]; Segnit v State of New York, 148 AD2d 519 [2d Dept 1989]; Holscher v State of New York, 59 AD2d 224 [3d Dept 1977]). Claimant did not dispute this well-established principle of law. Instead, she contended the 1988 project should be deemed a significant reconstruction of the road so as to bring into play contemporaneous highway design principles requiring 12-foot lanes and 10-foot shoulders and she further contends that had such a road been constructed as part of the project, she would not have fallen into the culvert.

Decisions addressing which highway improvement will be deemed to be a major reconstruction are uniform in requiring much more than was present here. In fact, such decisions often use repaving projects as specific examples of work that does not constitute a major or significant reconstruction. For example, in Vizzini, supra, the court held that 1997 standards did not apply to a roadside culvert constructed in 1931 (with a slope of 36.5% to 46.7%) because “since 1931, although the road surface had been repaved three times, there had been no major reconstruction or renovation of the existing highway” (278 AD2d 562, 563). In Benjamin, supra, the court rejected claimants’ contention that a repaving project that included widening the shoulders from two to four feet “constituted a reconstruction project, not merely repaving, and, as such, required” compliance with current DOT policy (203 AD2d 629, 630). The court noted that “there is nothing in the record which indicates that the project constituted a modernization or correction of the road, which is the sine qua non of a reconstruction project” (id). In Kissinger, supra, even a project involving adding a lane and flattening a curve, described as a “project to reconstruct Route 30A” that was “the subject of extensive. . .review,” did not bring into play the clear zone requirements of the Highway Design Manual because “this was neither new construction nor major reconstruction” (126 AD2d 139, 142, 144).

It is apparent that the 1988 project at issue herein did not involve reconstruction of Route 306, much less the major or significant degree of reconstruction required to even consider the AASHTO or Design Manual guidelines. All that the 1988 project involved in the area of claimant’s accident was applying new layers of pavement. This is the quintessential example of work that does not constitute reconstruction or require upgrading of other aspects of the road to current standards. Nothing in this record established either a need or intention to change anything about the road, to modernize it or to address some existing safety problem. Even taking into consideration the widening, sidewalk installation and curb placement that took place at some unspecified distance farther south on Route 306 would not change this conclusion.

Moreover, the proof did not establish that the roadside condition of the subject portion of Route 306 was dangerous nor was it in any way indicative of a breach of defendant’s duty to provide a roadway, including a shoulder, that was reasonably safe for users, both vehicular and pedestrian. The photographic evidence depicts a situation that may be found alongside rural highways throughout the State. The culvert does not appear to be a hazard to vehicular traffic or to pedestrians who look where they are going and do not step blindly in the dark.[3] Finally, the complete lack of any evidence of a possible safety problem – e.g., proof of prior accidents or complaints from local officials – supports the conclusion that the road was safe for both vehicular and pedestrian users.

For the foregoing reasons, the court finds that claimant failed to establish any negligence on the part of defendant contributing to her accident. Accordingly, the court now grants defendant’s dismissal motion, upon which decision had been reserved, and the Clerk of the Court is directed to enter judgment in accordance herewith.

February 21, 2007
White Plains, New York

Judge of the Court of Claims

[1].Unless otherwise indicated, all quotations are from the court’s trial notes.
[2].American Association of State Highway Transportation Officials.
[3].Although claimant’s expert witness, McHugh, testified as to the need for a guide rail at the location, the court indicated at trial that guide rails did not appear to be an issue in the case and claimant did not mention the issue in her post-trial submission. In any event, the proof did not indicate any need for a guide rail at this location.