New York State Court of Claims

New York State Court of Claims

Monteforte v. THE STATE OF NEW YORK, #2008-045-501, Claim No. 110378


Highway design case, culvert located in the median outside the clear zone.

Case Information

PHYLLIS MONTEFORTE, as Administratrix of the goods, chattels and credits which were of DAWN IACOBELLI, deceased
1 1.The caption has been amended, sua sponte, to reflect the correct spelling of claimant’s first name.
Claimant short name:
Footnote (claimant name) :
The caption has been amended, sua sponte, to reflect the correct spelling of claimant’s first 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:
Siben & Siben, LLPBy: Andrew J. Schaber, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 31, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


A bifurcated trial was held to determine the issue of liability in this matter. It was established at trial that on Wednesday, May 7, 2003 at approximately 7:00 p.m., decedent, Dawn Iacobelli, was driving her vehicle eastbound on State Route 27, also known as Sunrise Highway, near Exit 57 South in Yapank, Long Island. At that time, decedent was involved in a fatal single vehicle accident. At the accident site, State Route 27 is a four lane highway with two eastbound and two westbound lanes of traffic separated by a grassy median approximately sixty feet wide. The speed limit on that portion of State Route 27 is fifty miles per hour.

The evidence established that decedent’s vehicle was traveling eastbound in the left hand lane when the vehicle’s right rear tire sustained a blowout causing the vehicle to skid to the left. The vehicle then veered onto the grassy median which separated the eastbound and westbound lanes of traffic. Donna Smith, an independent witness, was traveling in the westbound lanes of State Route 27 near the accident location at the time the accident occurred. She testified that she observed decedent’s vehicle traveling eastbound when it came across the traffic lane onto the median where it “seemed to stop”[2] and overturn. There was a drainage pipe surrounded by a culvert wall at that location. It was later determined that decedent’s vehicle traveled approximately 400 feet from the start of the tire marks it left on State Route 27 to the vehicle’s resting position. The culvert wall surrounding the drainage pipe was approximately five feet wide and three feet high (see Cl Exh 4).

Defendant, the State of New York, conceded that it owned State Route 27 and maintained the grassy median at the time of the accident. Defendant’s employees mowed the grass on the median using large tractors periodically throughout the year.

Claimant’s expert, Paul Streb, testified that he visited the scene of the accident, viewed the culvert wall and measured the distance from the culvert wall to the eastbound road edge of State Route 27. Mr. Streb determined that the distance was thirty feet[3]. He also stated that the median was approximately sixty feet wide. He explained that the purposes of a median included eliminating glare, separating traffic from head-on collisions and providing a space for errant vehicles to enter without crossing into other lanes of traffic. Mr. Streb confirmed that the highway, the drainage system and the culvert wall were originally constructed by the State of New York in 1958. Mr Streb stated that the New York State Highway Design Manual makes a reference to a “clear zone” which is based on basic recovery distances for drivers to regain control of vehicles which have traveled off the roadway. It was unclear whether Mr. Streb was referring to the most current version of the New York State Highway Design Manual during his testimony. Mr. Streb did not inform the Court as to the applicable New York State Highway Design Manual standards for a clear zone at the time the highway was built in 1958. Mr. Streb did state that under more current standards the clear zone for State Route 27 at the accident location would be nine meters or twenty-nine and one-half feet. He also stated that the figure is a minimum and the New York State Highway Design Manual states that a greater area should be provided whenever it is practicable to do so. Mr. Streb continued that since the culvert wall faced westbound traffic and the grass around it was not properly cut there were no visual clues of its existence for drivers of vehicles traveling in an eastbound direction.

Mr. Streb identified a 1997 highway project which encompassed the roadway and its environs where the accident occurred as a reconstruction project. Mr. Streb opined that as part of this project the culvert wall should have been rebuilt so as to conform to modern standards. He further stated that if an alternate construction of the culvert wall had been in place, such as a metal grid, as suggested in the Highway Design Manual, the deceased’s vehicle would have been able to continue traveling in the direction it was proceeding without overturning. He conceded on cross-examination that the Highway Design Manual provides guidelines for construction and that engineering discretion and judgment is permitted and necessary.

Defendant’s expert, Michael Hoffman, a licensed engineer employed by the New York State Department of Transportation, testified that he took a measurement from the eastbound travel lane side of the yellow edge line to the edge of the culvert wall. He calculated that the distance was thirty-one feet and six inches. He testified that under the current New York State Highway Design Manual standards for new construction the clear zone at the location of the accident would be nine meters or twenty-nine and one-half feet wide. He also stated that under current standards the median at that location should be thirty-six feet wide. He clarified that the existing clear zone and median would be in compliance if newly constructed or reconstructed under current design standards. He also testified that he reviewed the accident history of the subject highway location and was unaware of any previous accidents involving the culvert wall. Mr. Hoffman stated that he was also the engineer in charge of the 1997 highway project involving the subject highway area. He reviewed the corresponding contract for the highway project and explained that although the contract unit in Albany may have titled it a reconstruction contract it was actually a corrective maintenance project. He stated that a corrective maintenance project was not a reconstruction project. Mr. Hoffman informed the Court that he was the designer of the project and that the project concerned shoulder rehabilitation as well as concrete pavement repair. He explained that the work to be performed pursuant to the contract was essentially concrete repairs through patches as opposed to replacing the entire portion of the roadway.

Claimant, Phyllis Monteforte, as administratrix of the goods, chattels and credits which were of Dawn Iacobelli, deceased, argues that defendant was negligent in, inter alia, failing to adhere to roadside safety guidelines. Claimant contends that defendant permitted an unreasonably dangerous condition, the culvert wall, to exist on the grassy median adjacent to the highway. Claimant also alleges that defendant was involved in a reconstruction project prior to the subject accident and therefore had a duty to redesign the dangerous condition. There is no claim in the present action that a defective condition existed on the paved roadway surface which caused decedent’s vehicle to leave the paved roadway area. The uncontradicted evidence established that a blown out tire caused decedent’s vehicle to enter the median.

The State has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (Friedman v State of New York, 67 NY2d 271 [1986]). However, the State is not an insurer of the safety of its roadways and the mere fact that an accident resulting in injury occurred does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978]; Brooks v New York State Thruway Authority, 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]). The claimant must either prove that the State was negligent and that such negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020 [1987]), or show that the State’s negligence was a substantial factor in aggravating claimant’s injuries (see Gutelle v City of New York, 55 NY2d 794 [1981]).

The State must use reasonable care in its construction and maintenance of any shoulder it provides for emergency use (see Stiuso v City of New York, 87 NY2d 889, 891 [1995]; Bottalico v State of New York, 59 NY2d 302, 305-306 [1983]. Where circumstances warrant, the State must also protect motorists from culverts and other foreseeable hazards located immediately adjacent to the shoulder (see Stiuso, supra; Kimber v State of New York, 294 AD2d 692 [3d Dept 2002]). However, “where the paved road surface is ‘more than adequate for safe public passage’” travel beyond the paved roadway onto “unimproved land adjacent to the roadway is generally not contemplated or foreseeable and therefore the municipality is under no duty to maintain it for vehicular traffic” (Stiuso v City of New York, supra at 891 [1995]).

Although defendant periodically mowed the grass on the median and knew of the existence of the culvert wall, it was not reasonably foreseeable that a motor vehicle would travel off the roadway the distance necessary to reach the culvert wall (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Green v County of Allegany, 300 AD2d 1077, 1078 [4th Dept 2002] [municipality not negligent in maintaining culvert wall as travel by vehicles in the area of feature was neither contemplated nor foreseeable]; Muller v State of New York, 240 AD2d 881, 882 [3d Dept 1997] [State had no duty to protect motorist from culvert located well beyond the shoulder]; Ryan v State of New York, 7 Misc 3d 1025(A), 2005 Slip Op 50752 *4, [Ct Cl 2005, Hudson, J.] [headwalls positioned beyond shoulder area not unreasonable danger, since vehicular traffic beyond road and shoulder limits is neither contemplated nor foreseeable]). Thus defendant’s duty did not extend outward to the culvert wall since use of the area by motorists is neither contemplated nor foreseeable (see Mallon v County of Orange, 45 AD3d 816 [2d Dept 2007]).

Defendant is also entitled to qualified immunity for the design and planning of its roadways (Weiss v Fote, 7 NY2d 579 [1960]; Friedman v State of New York, 67 NY2d 271 [1986]). The qualified immunity may be overcome by a showing that the highway design plan was developed without adequate study or that it lacked a reasonable basis (id.). Claimant’s expert failed to inform the Court as to the applicable design standards in effect when Route 27 was originally built. Claimant offered no proof showing that the design of the highway as originally built was inadequately developed or lacked a reasonable basis.

Claimant’s expert does point out that a more recent New York State Highway Design Manual provides that a roadside clear zone of twenty-nine and one-half feet should be provided and if a dangerous object cannot be removed then it should be modified with certain safety features to minimize injury. “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” (Guzov v State of New York, 48 AD3d 751 [2d Dept 2008] [citations omitted]; see also Preston v State of New York, 6 AD3d 835 [3d Dept 2004], lv denied 3 NY3d 601 [2004]). Claimant argues that since the roadway underwent reconstruction in 1997, defendant was under an obligation to bring it in conformity with the more current 1997 highway design standards. This argument fails for several reasons. First and most simply it is undisputed that even under the more current standards the culvert wall lies outside the clear zone requirements. Additionally, the Court accepts defendant’s expert testimony that although the 1997 construction contract was titled reconstruction, it was merely a roadway repair project. Aside from the use of the word reconstruction on the contract papers, claimant did not establish that any significant reconstruction work was undertaken by defendant on State Route 27 at the accident location. Finally, claimant failed to show that there was an accident history in the immediate area associated with the culvert wall which would suggest to defendant that reconstruction of the area was necessary (Kimber v State of New York, 294 AD2d 692 [3d Dept 2002]). In fact, defendant’s expert, Mr. Hoffman testified that there were no prior accidents involving the culvert wall despite the high volume of vehicles which traverse the roadway on a daily basis (see Def Exhs K, K1 and K2). Thus, defendant was not required to reconstruct the relevant highway area in accordance with more current design regulations.

Therefore, based on the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, that defendant should be held responsible for this tragic accident. Accordingly, the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.

The Clerk of the Court of Claims is directed to enter judgment accordingly.

March 31, 2008
Hauppauge, New York

Judge of the Court of Claims

[2].All quotes taken from trial notes
[3].The measurements of 30 feet by claimant’s expert and 31 feet 6 inches by defendant’s expert were stipulated to by both parties at the start of the trial.