Opinion
50235.
Decided September 20, 2004.
NICHOLAS, PEROT, STRAUSS SMITH, P.C., (Michael J. Welch, Esq., of counsel), Attorneys for the Plaintiff.
SMITH, SOVIK, KENDRICK SUGNET, P.C., (Eric G. Johnson, Esq. and Karen M. Richards, Esq., of counsel), Attorneys for Defendants Town of Galen and its Highway Department.
I. INTRODUCTION
Tort law charges a municipality with the absolute, nondelegable duty to keep its highways in a reasonably safe condition for vehicular traffic. The question posed here is whether this duty extends to roadside conditions that cause injury to motorists who happen off the highway. The law has yet to evolve to admit a single categorical rule or principle that answers this question in all circumstances in which the issue arises. Rather, to borrow from Judge Friendly's comment upon another area of law similarly beset with doctrinal opacity, if we are to discover the scope and limits of municipal duty with respect to roadside conditions, we are more guided by the reference points picked out by the courts in particular cases than their elaboration of any theory or rationale that explain the results (Henry J. Friendly, The Public/Private Penumbra — Fourteen Years Later, 130 U Penn L Rev 1289,1291 [1982]). Guided by the excellent memoranda submitted by both counsel, this court examines the viability of plaintiff's theory of liability in light of the applicable decisional law and the facts of this case.
The term "roadside" as used by highway design professionals is "defined as that area beyond the traveled way (driving lanes) and the shoulder (if any) of the roadway itself" (American Assn of State Highway and Transportation Officials, Roadside Design Guide, Preface [2002] [hereinafter cited as AASHTO Roadside Design Guide]). This opinion adopts the same usage.
Those facts, for purposes of this motion for summary judgment by defendant Town to dismiss the complaint, are uncomplicated and largely undisputed. On Saturday, July 15, 2000, at approximately one o'clock in the afternoon, plaintiff Michelle Cave nee Fridley was driving her Pontiac sedan westbound on Turnpike Road in the Town of Galen. Near the intersection of Turnpike Road and Birch Road, about two or three miles from plaintiff's home, her intended destination, plaintiff went off the highway and collided with a wooden hitching post, suffering severe injuries as a result. The highway where the accident occurred is two lanes, one east and one west, with a posted speed limit of 55 miles per hour. It is a straight road albeit with mild grades. The immediate area is rural and, where the accident occurred, apparently otherwise unremarkable. There are Amish families living in the area, using the highway with horses and buggies.
Immediately preceding the accident, plaintiff was traveling about 50 miles per hour, when she crested a hill and saw a horse and buggy traveling eastbound in the opposite lane of travel. The road surface was apparently wet as it had rained earlier that day Plaintiff saw the horse's head turn in such way that indicated to her that the horse and buggy were about to enter her lane of travel. Anticipating that to occur, and to avoid collision if it did, plaintiff steered her vehicle to the right, applied her brakes, but unfortunately lost control of her vehicle. The vehicle starting spinning, left the road via its right shoulder and hit the wooden post north of the road. The impact of the vehicle and pole caused plaintiff's injuries.
Plaintiff's complaint seeks money damages from four defendants based upon allegations of actionable negligence. The individual defendants are two Amish men, one who drove the horse and buggy the plaintiff intended to avoid and the other the landowner who installed the wooden hitching post struck by the plaintiff. The Court granted a previous motion for summary judgment dismissing the action against the County of Wayne, leaving the Town of Galen (and its Highway Department) as the sole municipal defendant.
Defendant Town of Galen now moves for summary judgment dismissing the action against it and its Highway Department. Plaintiff opposes that motion, arguing that she states a viable cause of action against the Town and makes sufficient evidentiary showing, which, if credited by a jury, would warrant a finding of liability and an award of damages. The Town argues that under any view of the facts alleged by plaintiff, she states no viable claim against the Town, because it owed no duty of care to the plaintiff once she exited the highway through no fault of the Town and struck a post the Town did not install or approve for installation.
The Town is correct that the record does not raise genuine factual issues that a jury could resolve to infer that the Town was at fault in whole or in part for plaintiff's vehicle exiting the highway. Any negligence in that regard would be exclusively attributable to the plaintiff or the driver of the horse and buggy, or both. The questions remain, however, whether (1) there are issues of fact whether the siting of the wooden post in proximity to the highway could be found an act of negligence, and (2) if so, whether such negligence may be actionable as against the Town in this case. How these issues are resolved will be dispositive of the Town's motion for summary judgment, and, given the reported prevalence of roadside accidents, bear significantly on the responsibilities and concomitant liabilities of municipalities regarding the roadsides adjacent their highways. Section II explores the argument advanced by plaintiff that a safe roadside is well-recognized by the traffic engineering community as integral to proper design, construction, and maintenance of any highway, that there are accepted standards for determining whether a roadside is adequate, and there are genuine issues of fact whether the Town failed to abide these standards in this case. Section III addresses the argument advanced by the Town that this state's law of negligence does not recognize municipal responsibility for roadside hazards absent breach of the duty to keep the highway reasonably safe for vehicular travel, a duty ostensibly limited to those portions of the public right-of way intended for vehicular traffic
II. INDUSTRY OPINION AND STANDARDS REGARDING SAFE ROADSIDES
A. The Clear Recovery Zone Concept
Plaintiff's theory of negligence finds provenance in the "forgiving roadside" concept, evolving within the traffic engineering community since the mid-1960's. Until then, highway professionals generally saw their primary responsibility to keep drivers traveling safely over the roads rather than protecting errant motorists unable to stay on the roads. With studies indicating a significant percentage of traffic fatalities involving single vehicle collisions with fixed objects or overturns in roadside areas after leaving the highway, especially in rural areas, these professionals began to incorporate roadside safety concepts into the theory and practice of traffic engineering. This reflected the fact that no matter how safe a highway may be designed, constructed, and maintained, there would always be motorists who inadvertently, or by reason of necessity, stray from the traveled portion of the roadway.
"The forgiving roadside concept allows for errant vehicles leaving the roadway and supports a roadside design where the serious consequences of such accident are reduced" (AASHTO Roadside Design Guide § 1.2).
The industry vehicle spearheading this movement was the American Association of State Highway and Transportation Officials (AASHTO), an organization of respected pedigree and prominence in the field of highway design. Under the colloquialism "forgiving roadside" AASHTO began devising recommendations regarding roadside safety. The technical concept of a "clear recovery area" or "clear zone" appeared in 1967 when the AASHTO Traffic Safety Committee issued an influential report (to become known in the industry as the "Yellow Book") recommending, among other highway safety improvements, that a clear recovery area, thirty feet wide, free of obstructions, should be provided along and adjacent to rural highways. The 1974 second edition of the Yellow Book continued this recommendation, opining that "an unencumbered roadside recovery area" thirty feet or more "from the edge of the through traveled way permits about eighty percent of the vehicles leaving a roadway out of control to recover" (AASHTO Roadside Design Guide § 3-1[discussing 1974 Yellow Book]. Eventually AASHTO thought the topic of roadside safety significant enough to warrant stand-alone technical treatment comprehensively discussed in its Roadside Design Guide initially published in 1988, with new editions in 1996 and 2002.
AASHTO "is the nation's primary publisher of roadway and roadside design policies and guidelines. Most states base their highway design regulations on the many AASHTO books and reports published over the last fifty years" (Christensen, Paving the Way for a Road Hazard Case, 38 J. Trial Lawyers Assn. 47 (Jan. 2002).
Traffic Safety Committee, AASHTO, Highway Design and Operational Practices Related to Highway Safety § 1-2 (1967), discussed in AASHTO Roadside Design Guide § 3-1. This report stated: To increase safely when vehicles leave the pavement, a clear recovery area, free of physical obstruction, should be provided along the roadway thirty (30) feet or more from the edge of the traveled way in rural area. Corrective programs should be undertaken at once to eliminate from the roadside or to relocate to protected positions, such hazardous fixed objects as trees, drainage structures, massive sign supports, utility poles, and other ground-mounted obstructions that are now exposed to traffic. Id, quoted in Netecke v. State of Louisiana ( 747 So2d 489, 501 [La. 1999] [Johnson, J., dissenting], rehearing denied 747 So2d 489 [1999]. Courts discussing this concept employ the terms "clear recovery zone" or "clear zone" interchangeably, generally defined to mean "that area bordering the side of the road, starting at the edge of the traveled way which is designed to give an automobile space to recover if its runs off the highway ( Johnson v. Entergy Corp, 827 So2d 1234, 1236 n2 [La App 2nd Cir 2002]).
Even before the publication of the first Roadside Design Guide, AASHTO in 1977 modified its clear zone recommendation from a categorical thirty foot distance to a site specific distance calculated using a formula employing such variables as traffic volume, vehicle speed, and roadside geometry. AASHTO continued this approach to calculate clear zone distances, albeit with refinements, into each edition of the Roadside Design Guide. Under this nuanced approach, a roadside recovery area of at least 12 feet would be the minimum recommendation in any design for a highway permitting vehicle speeds of 55 miles per hour, that distance increasing when traffic volume, road curvature and grade, and roadside slope are considered (AASHTO Roadside Design Guide § 3-6 Table 3.1). In any event, the thirty foot distance originally conceived by AASHTO remains in average circumstances a serviceable rule of thumb.
AASHTO. Guide for Selecting, Locating, and Designing Traffic Barriers 16 and Appendix A (1977), discussed in AASHTO Roadside Design Guide § 3-2.
Under ideal circumstances, for a highway to be designed for optimal roadside safety, it would have to resemble an airport landing strip, with wide, flat, traversable areas on either side of the road, and barriers separating lanes of opposite travel (AASHTO Roadside Design Guide § 3.4.2.1). This, of course, will often be impractical. Accordingly, except in the case of new construction or major reconstruction projects, highway professionals recognize that compromises will be required (AASHTO Roadside Design Guide § 1-4, 3-15). For example, some fixed objects simply must be located near the traveled way. Typical are those necessary to assure safe travel — highway signs, roadway lighting, and railroad warning devices. Similarly, until technology dispenses the need for the current method of providing public utilities, or society is willing to bear the cost of underground installations, fire hydrants and utility poles must often be located roadside. Of less significant (and perhaps questionable) importance, are other roadside uses traditionally deemed beneficial to the public or adjoining landowners — trees, signs, mailboxes, and posts supporting fences and gates. In these situations, considering the recommended clear zone, as well as any crash history or potential for a particular site, AASHTO outlines a series of options in order of preference if an obstacle cannot be removed from the clear zone: (1) redesign the obstacle so it can be safely traversed; (2) relocate the obstacle to a point where it is less likely to be struck; (3) reduce impact severity by taking appropriate breakaway measures; (4) shield the obstacle with a longitudinal traffic barrier designed for redirection or use a crash cushion; or (5) delineate the obstacle to increase its visibility to a motorist (AASHTO Roadside Design Guide §§ 1-2, 2-2).
See Cormier v. Comeaux, 748 So2d 1123, 1131 [La 1999] ["Undoubtedly, it would be desirable for the DOTD to design roads so that no accidents would ever occur, however, economic realities make such a goal impossible to reach. Thus, we as a society must determine the lengths we expect the DOTD to go to ensure that our roads are safe."]
B. Application of Standards to Accident Site
Plaintiff constructs her case of negligence against the Town based up application of the these concepts of roadside safety. The road at issue is a rural highway in the Town of Galen known as Turnpike Road, which the Town maintains as part of its local highway system. The paved portion of highway adjacent where plaintiff went off the highway was measured by plaintiff's expert to be eighteen feet wide. The Town Highway Superintendent testified during his deposition that adjacent the paved highway there is a four foot gravel shoulder, which the Town also maintains. The Highway Superintendent also testified that he measured the location of the post struck by the plaintiff to be 25 feet from the center of the highway, the edge of the right-of-way being 24.5 feet from the center. There are no pavement markings showing the highway centerline or edge of the driving lanes. Plaintiff's expert stated that the location of the post was nevertheless within the right-of-way based upon the location of a nearby stock fence running parallel to the highway. The individual defendant who placed the post testified at his deposition that he did not know the location of the town's right-of-way, but installed the post in line with an existing telephone pole. It would appear, in any event, that the post at issue was on or within inches of the boundary of the town's right-of-way.
Regardless of the proximity of the post to the town's right-of-way, it was located less than 12 feet from the edge of the road shoulder, and less than 16 feet from the edge of the paved portion of the road intended for vehicular traffic. The plaintiff's expert notes that "[i]t is foreseeable that motor vehicles, for whatever reason, may leave the traveled portion of the road."
Accordingly, opines the expert, sound engineering practice required that the Town take note of the developments in the traffic engineering community providing for clear recovery zones and measures to minimize the dangers presented by fixed objects in those zones. Plaintiff's expert points out that the Highway Design Manuel employed by the New York State Department of Transportation (DOT) guiding design of state highways provides specifically that a roadside clear zone of 30 feet should be provided for a highway permitting speeds of 50 miles per hour. Further, this manual states that if a fixed object within the thirty foot clear zone cannot be removed, it should at least be modified to the extent practicable with safety features to minimize injury that may be caused by a collision. Neither was done in this case. The failure of the Town in this regard, concludes plaintiff's expert, "was a significant and unequivocal deviation from well established and recognized principles of good engineering practice."
The opinion of the Town's expert in this matter submitted by way of affidavit fails to engage in any meaningful respect the concept of roadside safety that has developed in the traffic engineering community, nationally through the efforts of AASHTO and reflected on the state level in the DOT's Highway Design Manual. The Town's expert does not attempt to justify the location of post as compatible with a reasonable clear zone. Rather, he outlines the design, condition, and maintenance of the road as proper in all respects, and finds no defect that would place the Town in any way at fault for the plaintiff leaving the highway.
Were the issue before the Court simply whether the location of the post struck by the plaintiff deviated from generally accepted highway design principles, this motion for summary judgment would have to be denied. While it is undisputed that the Town did not give permission for the adjoining landowner to install the post several months before the accident, and while the Town denies actual knowledge of the post prior to the accident, there is an issue of fact whether the Town should have known of the post's existence at the time of the accident. If it is found that the Town should have known of the post, a fact finder may be able to reasonably determine that generally accepted practices required the Town to at least evaluate the site to determine if remediation of a potential roadside hazard was indicated, and if so, take appropriate measures.
The issue before the Court, however, is not simply whether the Town's performance of its highway function fell short of generally accepted traffic engineering practices, but whether that failure (if there be one) can constitute actionable negligence under the laws of this State.
III. NEGLIGENCE LAW AND THE CONCEPT OF ROADSIDE SAFETY
The elements of actionable negligence under the common law require that (1) the defendant owed the plaintiff a legally cognizable duty of care, (2) the defendant failed to abide that duty, and (3) the plaintiff suffered injury as a proximate result of that failure (79 NY Jur 2d, Negligence § 8). The first element — the existence of a duty — is the threshold issue in any negligence case, and especially critical, as here, where a claim of municipal liability is asserted. For negligence to be a viable theory of recovery, it must be based upon a breach of a duty of care to the injured party ( Strauss v. Belle Realty Co., 65 NY2d 399, 402), and is not actionable without damage to a person to whom the legal duty is owed ( Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136, 138).
As stated by Baron Pollack, and cited approvingly by Chief Judge Cardozo, "[p]roof of negligence in the air, so to speak, will not do" ( Palsgraf v. Long Is. R.R. Co., 248 NY 339, 341 [1928]). Concomitantly, "[i]n the absence of a duty, there is no breach and without a breach there is no liability" ( Pulka v. Edelman, 40 NY2d 781, 782 [1976]).
The existence of, and scope of protection afforded by, a duty of care that can predicate tort liability is an issue of law to be determined by the court ( Sanchez v. State, 99 NY2d 247, 251; Donohue v. Copiague Union Free School Dist., 64 AD2d 29, 33 [2d Dept 1978] affd 47 NY2d 440). On the other hand, it is generally for the jury as fact finder to determine whether that duty has been breached ( Darby v. Compagnie National Air France, 96 NY2d 343, 347. Foreseeability and causation of harm do not in and of themselves create or define the contours of such a duty, but will often control whether a duty has been breached ( Hamilton v. Beretta USA Corp, 96 NY2d 222, 223; Pulka v. Edelman, 40 NY2d 781, 785). Absent constitutional or statutory constraints, the common law leaves to the courts the responsibility to decide upon public policy grounds whether to impose a duty of care upon an actor, delimit its scope, and define the class of protected parties ( 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc., 96 NY2d 289, 289 Sukljian v. Charles Ross Son Co., 69 NY2d 89, 97). In performing this task, the courts are faced with "identifying and weighing the tradeoffs that are everywhere implicit in the choice of legal rules" (Epstein, Let "The Fundamental Things Apply": Necessary and Contingent Truths In Legal Scholarship, 115 Harv. L. Rev. 1288, 1292 [2002]). The task for this Court is to determine, if it can, how the jurisprudence of New York resolves the issue of municipal duty to a motorist who leaves the highway and sustains a roadside injury.
The general rule is that a municipality is immune from tort liability resulting from negligent performance of a governmental function ( see Balsam v. Delmar Engineering Corp, 90 NY2d 966, 967. However, the law has long recognized as an exception the duty of a municipality to keep its streets and highways in a reasonable safe condition for vehicular traffic ( see Melby v. Duffy, 304 AD2d 33, 39 [2nd Dept 2003]). This duty is absolute and nondelegable, and includes "the duty of guarding against such dangers as can or ought to be anticipated in the exercise of reasonable prudence and care" ( Annino v. City of Utica, 276 NY 192, 196). The dispute here is not the existence of the duty, but its scope.
The rule is derived from the principle that a municipality's responsibility or "duty" is "ordinarily one owed to the public at large and not to any particular individual or class of individuals" ( Cuffy v. City of New York, 69 NY2d 255, 260 [1987], citing Moch Co. v. Rensselaer Water Co., 247 NY 160 [1928] [negligent failure to provide adequate water and pressure at fire hydrants to extinguish fire not actionable]). Interestingly, Chief Judge Cardozo, who authored the Court's opinion in Moch, later that same year voted with the Court to apply the municipal tort immunity rule in Nichitta v. City of New York ( 250 NY 530 [1928]. At that time, he expressed privately to his colleagues his disapproval of the rule: "The whole doctrine is foolish, antiquated, unjust, and ought to be abolished. But I suppose we shall have to leave the change to the clumsy process of legislation" (Kaufman, Cardozo 252 [1998]).
Some states have embraced the roadside safety concept as part of its duty to the motoring public. The courts in these jurisdictions primarily rely upon the fact that the state had officially or by agency practice adopted standards providing for a "forgiving roadside" by means of a clear recovery area (see e.g. Greenlee v. State of Louisiana, 753 So.2d 364, 367 [La.App.1st Cir. 2000]. In Louisiana, for example, courts hold:
In Greenlee, the court noted that the state transportation department used AASHTO manuals employing the clear zone concept in designing its roads. In Netecke v. State of Louisana ( 747 So2d 489, 495 [La 1999], the Louisiana Supreme Court relied upon prior decisional law rather than industry manuals to state: DOTD [Department of Transportation and Development] must maintain the shoulders and area off the shoulders, within its right-of-way, in such a condition that they do not present an unreasonable risk of harm to motorists using the adjacent roadway and to others, such as pedestrians, who are using the area in a reasonable and prudent manner. DOTD's duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons a motorist might find himself on, or partially on, the shoulder. This duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive (citations omitted).
"In placing utility poles along traveled roadways, a utility company has a duty not to create obstructions or perilous conditions for motorists who inadvertently or by reason of necessity stray from the traveled portion of the roadway; in other words, utility companies owe motorists a duty to keep the `clear recovery zone' free from obstructions" (Johnson v. Entergy Corp., 827 So.2d 1234, 1239 [La App 2nd Cir 2002].
Louisiana would apply this same duty to the governmental entity responsible for the roadway (see Shepard v. Scheeler, 674 So2d 1135, 1147 [La App 4th Cir. 1996] [affirming trial court finding that state "is at fault for knowingly allowing the encroachment upon the clear zone and it must be held liable for that fault"]), but not with regard to roads constructed prior to promulgation of the clear recovery guidelines ( see Satterly v. Louisana Indemnity Co., 704 So2d 882, 885 [La App 3rd Cir. 1997]) In Martin v. Missouri Highway and Transportation Dept. ( 981 SW2d 577 [Mo Ct App WD 1998]), the Missouri court rejected the argument that the state transportation department as a matter of law had no duty to keep safe any areas outside the traveled portion of the road. Rather, it found that the state had adopted AASHTO guidelines as a matter of practice and thus assumed a duty for proper design, construction, and maintenance of clear zones. Notwithstanding that the road at issue predated such guidelines, the guidelines applied to the extent of maintaining clear zones by removing dangerous trees from the right-of-way (id at 583). The court held that failure to remove the tree that plaintiff's decedent struck was a breach of that assumed duty.
There is no reported New York case explicitly accepting or rejecting the clear zone concept as such as part of a local municipality's duty to motorists. At the outset, the Court must address the Town's argument that the road in question was constructed well before any industry standards relating to clear zones, and thus would be exempt as a matter of law from conforming its roads to modern design standards that apply the concept. As the Town points out, a municipality is under no legal duty to upgrade a road simply by reason of subsequent changes in design specifications ( see Merino v. New York City Transit Authority, 218 AD2d 451 [1st Dept 1996]; Smith v. State, 191 Misc.2d 553 [Ct. Claims 2002]). Consequently, subsequent safety guidelines cannot generally provide the standard for measuring a municipality's duty to maintain older highways (see Evans v. Stranger, 307 AD2d 439, 441 [3rd Dept 2003]; Rittenhouse v. State, 134 AD2d 774 [3rd Dept 1987]). However, the absence of a duty to bring older roads up to current safety specifications would not negate a duty not to increase the risk to the motoring public by allowing conditions interdicted by such specifications to be created after those specifications become applicable ( cf. Cormier v. Comeaux, 748 So.2d 1123, 1137 [La. 1999] [Knoll, J., dissenting]); compare Preston v. State, 6 AD3d 835 [3rd Dept 2004] [tree preexisting clear zone concept]. There is surely a distinction between judging a road by standards in effect at the time of its construction and judging subsequent changes (here, installation of a fixed post at the edge of the public right-of-way) by standards applicable at the time of that change Notwithstanding the industry embrace of the roadside safety concept, followed by those states who incorporate it into their tort law, New York courts have not done so except indirectly in particular types of cases. The font of recent New York decisional law in this area is Tomassi v. Town of Union ( 46 NY2d 91). There a motorist was forced off a town road due to a collision with another vehicle into a ditch adjacent the road, which deflected the vehicle into a stone wall and then a sluice pipe. The issue before the Court of Appeals was whether the town could be held liable for permitting the ditch to exist along side the road. In oft-quoted language, the Court, speaking through Judge Cooke, stated that a municipality is not "an insurer of the safety of its roadways," holding that "so long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed by the municipality is satisfied" (id at 97). Focusing on the facts of that case, the Court stated:
Chapter 1 of the New York State Manuel of Highway Design states the Manual's purpose is to provide uniformity of design practice regarding highways under the jurisdiction of the New York State Department of Transportation. As such, chapter 10 of the Manual and its clear recovery zone provisions relied upon by plaintiff pertain to state not local highways. Accordingly, whatever mandatory aspects that Manuel may have concerning state highways and consequent liability impact do not dictate the duty of local municipalities regarding clear recovery zones ( see Merrill Transport Co v. State, 97 AD2d 921, 921-922 [3rd Dept 1983]; Skiff v. State, 125 Misc.2d 791 [Ct Claims 1984]).
"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. 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. This paved roadway, 22 feet in width, is more than adequate for safe public passage, and travel beyond those limits is neither contemplated nor foreseeable. To be sure, any public roadway, no matter how careful its design and construction, can be made safer. Indeed, plaintiffs' expert witness testified that the town should have posted signs warning motorists of the drainage ditch, painted center lines on the roadway and eliminated the ditch by installing shoulders. We decline, however, to impose a duty upon the town which transcends that imposed by reasonable care and foresight-resulting in conversion of the town into an insurer of the safety of its highways
* * *
In sum, there is nothing in this record to warrant a conclusion that reasonable care required the town, at the pain of civil liability, to provide more safeguards to prevent motor vehicles leaving the roadway than it had done" ( Id. at 97-98) (citations omitted).
The same, or very similar views, are expressed in the progenitive case of Kinne v. State ( 8 AD2d 903 [3rd Dept 1959]).
In Bottalico v. State of New York ( 59 NY2d 302), the Court of Appeals, again speaking through by then Chief Judge Cooke, distinguished Tomassi from a case of an alleged negligently maintained highway shoulder improvement, stating:
"In Tomassi v. Town of Union ( 46 NY2d 91), a municipality was held to be not liable for injuries caused when an automobile was negligently driven off a paved roadway into a drainage ditch. Implicit in that decision was that the municipality had no duty to improve and maintain the land abutting the roadway in a reasonably safe condition for passage by automobiles. Given that the road itself was adequately constructed, it was held that travel on adjacent land unimproved for use by automobiles was "neither contemplated nor foreseeable'" ( 59 NY2d at 305 [citations omitted]).
More recently, the Court of Appeals endorsed and cited Tomassi for the proposition that "where the paved road surface is `more than adequate for safe public passage,' travel beyond those limits on 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, 87 NY2d 889,891 [1995]).
Based upon Tomassi, the general rule has emerged and been applied by the Appellate Divisions that, with important exceptions, a municipality's duty to the motorist is one limited to reasonable safety of those portions of the road intended for vehicular use ( see Kimber v. State of New York, 294 AD2d 692, 694 [3rd Dept] lv denied 99 NY2d 501 ["where an adequate paved roadway is provided, a municipality is not under a duty to maintain, for vehicular traffic, unimproved land beyond the limits of the paved roadway"]). Absent breach of this duty, liability will not attach for injuries sustained by motorists who go off the traveled portion of the road and meet mishap with some object or condition in an area not intended for vehicular travel (see Clark v. City of Lockport, 280 AD2d 901, 902 [4th Dept 2001] ["municipal or other liability does not attach simply because a plaintiff was injured in a collision with a fixed object placed within the public right-of-way but outside the traveled portion of the highway"]; Guy v. Rochester Gas Elec. Corp, 168 AD2d 965 [4th Dept 1990] lv denied 77 NY2d 808.
Some courts have employed a proximate cause rather than duty analysis to reach the same results. Under this approach, when some cause other than the municipality's negligence results in a vehicle leaving the road, it is that cause rather than alleged negligent placement of the object struck that will be deemed the proximate cause of any injuries ( see e.g. Darling v. State of New York, 16 NY2d 907 [1965]; Kirtoglou v. Forgarty, 235 AD2d 1019 [3rd Dept 1997]; Crecca v. Central Hudson Gas Electric, 146 AD2d 858 [3rd Dept 1989]; Scotti v. Niagara Mohawk Power Corp., 136 AD2d 478 [1st Dept 1988]).
Where New York courts have recognized viable claims for municipal liability for roadside accidents in this State, they have not done so by creating a general duty of care to ameliorate all roadside conditions potentially hazardous to an errant motorist, as the clear recovery zone concept would suggest. Rather, our courts have focused on those situations where the municipality has created or could reasonably foresee a risk of roadside injury greater than the inherent risk that at any time and at any point for a variety of reasons a motorist may drive of the road. To impose a liability based simply upon failure to abate this inherent risk would effectively make a municipality, under the "pain of civil liability," the "insurer of the safety of its highways," something our courts have declined to do ( Tomassi, 46 NY2d at 97-98). Undoubtedly, it would be desirable for municipalities to design highways and adjacent areas so that no accidents would ever occur. The clear recovery zone guidelines devolving from the forgiving roadside concept are certainly salutary in this respect, but aspirational and not alone a basis to define or measure the legal duty of a municipality to the motoring public.
There are essentially three factual situations where our courts have recognized injures caused by roadside accidents actionable.
A. Failure of Care to Keep Motorists Safely On The Road
Negligence liability attaches were the municipality bears responsibility for the motorist exiting that portion of the highway intended for vehicle use. This category of liability encompasses a broad spectrum of cases where dangerous highway conditions may divert a driver from the highway proper. The classic case involves defective highway design or maintenance as exemplified in Stiuso v. City of New York ( 87 NY2d 889). There the Court of Appeals reversed the Appellate Division and reinstated a jury verdict in favor of a passenger in a vehicle that swerved off the road when an animal darted in front of the car. The driver drove into a municipally constructed, concrete swale-like shoulder adjacent the road and was unable to navigate his way back on to the highway, eventually hitting a boulder. There was testimony at trial that both the road and concrete swale were unsafe due to the pitch caused by the crowning effect of repeated highway resurfacing. The Court found under those facts that the municipality failed in its duty to maintain the highway "in a reasonably safe condition for foreseeable uses, including those uses resulting from a driver's negligence or an emergency" ( id. at 891).
The duty to use reasonable care to keep motorists safely on the road extends not only to the design and maintenance of the actual highway, but to those off-highway conditions that can reasonably be anticipated to cause motorists to drive off the highway into an unsafe roadside (see Klimek v. Town of Ghent, 114 AD2d 614, 616 [3rd Dept 1985] [negligent construction of culvert by town caused erosion of the road shoulders, which caused the roadside accident]). These are cases where it is foreseeable that objects or conditions hazardous to highway travel will be encountered by the unwary motorist. Two recent Appellate Division decisions demonstrate. In Hilliard v. Town of Greenburg ( 301 AD2d 572 [2nd Dept 2003], a decayed tree fell upon a town highway killing one and injuring the other occupant of a vehicle traveling the highway. The Appellate Division denied the Town's motion for summary judgment seeking to dismiss the negligence claim, finding an issue of fact whether the Town has constructive notice of the decayed tree. In doing so, the court reaffirmed the common law rule that "`[t]he duty of a municipality to maintain its roadways in a reasonably safe condition extends to trees which are adjacent to the road and which could reasonably be expected to pose a danger to travelers'" (id at 572, quoting Leach v. Town of Yorktown, 251 AD2d 630 [2d Dept 1998)]). Similar in principle is Niles v. County of Chautaugua ( 302 AD2d 1001 [4th Dept 2003], where the plaintiff driver swerved off a county highway to avoid a deer crossing the highway, and was injured when she hit a tree. Plaintiff claimed that the county was negligent in failing to post signs in the area warning of the hazard of deer crossing. Although the that claim was dismissed by summary judgment based upon the facts of that case, the Appellate Division implied that municipal notice of heavy deer traffic or deer/vehicle accidents in the area where the plaintiff encountered the deer would have raised an triable issue of fact ( id. at 1002-03).
The plaintiff here does not argue that the defendant Town was negligent in the design or maintenance of the paved highway, its adjacent shoulder, or any other area of intended vehicle use She relies, however, upon the common law rule applied in Hillard v. Town of Greenburg, supra, which extends the duty of a municipality to abate roadside conditions that "could reasonably be expected to pose a danger to travelers" ( 301 AD2d at 572). Failure to maintain a clear recovery zone, argues plaintiff, is a breach of that duty. Hillard, however, like Niles v. County of Chautagua, supra, represents a line of authority where the roadside conditions present danger to motorists while they are still traveling on those portions of the road intended for vehicular use. Here, there is no argument that the post with which plaintiff collided was in an area intended for vehicular travel, or caused plaintiff to leave the road and shoulder. Plaintiff asks this Court to extend the rule recognized in Hillard to encompass areas not only intended for vehicular use, but to roadside areas not intended for vehicular use, but arguably should be under the clear recovery zone standards. However salutary the clear recovery zone guidelines may be, it would be an intellectual sleight-of-hand to bring them through this back door as a general basis for negligence liability in the face of the Court of Appeal's holding in Tomassi and its progeny.
Indeed, Muller v. State ( 240 AD2d 881 [3rd Dept 1997]), a case involving a motorcyclist going off the highway and hitting an embankment near the edge of a stone culvert, the Appellate Division appears to have rejected a similar argument. Said the Appellate Division: "The State has a duty to the traveling public to maintain its highways and their adjacent shoulders in a reasonably safe condition. The relevant area here, however, lies, beyond the shoulder of the highway. Claimant's expert, without proper foundation or discussion, implied that such area should be maintained in a traversable condition. We deem such conclusion erroneous and beyond the scope of the State's duty since it involved an area well beyond the traversable shoulder and since an emergency use of such additional area was neither contemplated nor foreseeable" (Id at 882 [citations omitted]). See also McKenna v. Garcia ( 189 AD2d 756, 757 [2d Dept 1993]) (defendant town had no duty to remove boulder on its property adjacent to roadway); Van De Bogart v. State, 133 AD2d 974, 976 [3rd Dept 1987] ["safe recovery area" adjoining road not required unless road could not be safely negotiated at moderate speed]; Young v. New York Thruway Authority ( 76 AD2d 834, 835 [2d Dept 1980]) ("Under well-settled law, the defendant has no duty to maintain its entire right of way in a condition safe for travel by either motorists or pedestrians.")
B. Duty To Protect Motorists From Roadside Hazards
Constituting "Points of Particular Danger."
Notwithstanding an otherwise safely designed, constructed, and maintained highway, courts have recognized that some types of roadside conditions are so inherently dangerous as to impose upon the municipality the affirmative duty to either prevent vehicles from leaving the highway or to eliminate the danger if they do ( Gomez v. New York State Thruway Authority, 73 NY2d 724). In Brady v. City of New York ( 39 AD2d 600 [1st Dept 1972], the Appellate Division stated the rule "that, at points of particular danger along its highways and bridges, a municipality is obligated to provide barriers of sufficient strength to hold an automobile traveling at a reasonable rate of speed" (emphasis added). The Court concluded "[t]here is little doubt that a bridge which carries vehicles over deep water constitutes such a point of danger" ( id.; see also Zalewski v. State of New York, 53 AD2d 781 [3rd Dept 1976](defective bridge guardrails). The rule was applied by the Third Department in Temple v. Chenango County ( 288 AD2d 938 [3rd Dept 1996], where the court found an issue of fact precluding summary judgment whether a guardrail should have been installed along a road abutting a steep and deep embankment, which "may have been a breach of [the county's duty] to provide a safe highway" ( id., see also Gomez v. New York State Thruway Authority, 73 NY2d 724; McDonald v. State, 307 AD2d 687 [3rd Dept 2003]; Appelbaum v. County of Sullivan, 222 AD2d 987 [3rd Dept 1995]; Van Son v. State, 116 AD2d 1013 [4th Dept 1986] ["[T]he State is obligated to provide barriers of sufficient strength to hold an automobile traveling at a reasonable rate of speed at points of particular danger along its highways and bridges."]).
The rationale includes as well cases where it can be shown that the municipality was negligent in not installing a barrier separating opposite lanes of travel on an expressway even though the municipality's negligence did not cause a vehicle to cross over into the opposite lane of travel ( Stuart — Bullock v. State of New York, 33 NY2d 418 [1974).
These cases involve stretches of highway intentionally constructed and maintained at elevations that guarantee a motorist leaving the road will lose control of the vehicle and meet certain catastrophe. The situation by its very nature eliminates the possibility of any recovery zone, or any outcome for the errant driver other than disaster. The only solution is installation and maintenance of proper guardrails. One may either limit these "points of particular danger" cases to their facts so to exclude the less extreme cases as the one at bar, or take them as signs of nascent doctrine that would embrace the more articulated clear recovery zone concept as a test to determine those roadsides that pose the particular dangers municipalities are required to address or face civil liability.
The courts of this state have taken the middle course, resisting a rule that would engraft the additional duty upon municipalities to maintain a roadside clear recovery zone adjacent every stretch of highway. They allow, however, that there may be particular circumstances where it is foreseeable that motorists otherwise obeying the rules of the road will nevertheless drive off the highway ( see Preston v. State, 6 AD2d 835 [3rd Dept 2004]). This is but a particular application of the broader duty of municipalities to design and maintain their roads for safe use, which includes a continuing duty to reassess design and maintenance plans in light of changing conditions and experience ( see generally Ernest v. Red Creek Central School District, 93 NY2d 664; Demesmin v. Town of Islip, 147 AD2d 519 [2nd Dept 1989]). These cases turn upon the principle that when a municipality "is made aware of a dangerous highway condition and does not take steps to remedy it, [the municipality] can be held liable for resulting injuries" ( Ernest, supra at 673, citing Friedman v. State of New York, 67 NY2d 271). Accordingly, a claim under this theory generally fails without a "history of accidents in the immediate area associated with the [off-road hazard] which would place the [municipality] on notice of the need for reconstruction or remediation'" ( Kimber v. State of New York, 294 AD2d 692, 694 [3rd Dept] lv denied 99 NY2d 501 [internal quotation marks and citation omitted]; cf. Palloni v. Town of Attica, 278 AD2d 788 [4th Dept 2000].
Although not a New York case, Kantz v. Elkhart County Highway Department ( 701 NE2d 608 [Ind. 1998], decided by the Indiana Court of Appeals, nicely exemplifies the type of analysis required under this theory. There the court reversed the grant of summary judgment dismissing the complaint of a passenger injured in a vehicle alleged to have driven off the roadway and collided with a tree stump located in the public right-of-way. Surveying its prior decisions, the court distinguished between cases where "it was foreseeable for a motorist to leave the traveled portion of a road and to suffer harm by striking an object adjacent to the road," from those "where there is nothing inherent in the location of the object to put its owner on notice of the potential danger to motorists, [and] the harm is not foreseeable" ( Id. at 613). Among the factors considered in these cases was whether the object was located adjacent a sharp curve, located near a dangerous intersection, located near road construction diverting the normal course of travel, and whether there was a history of prior accidents involving the same object. In Katz, the court found a municipal duty to a motorist who hit the stump, given the narrow road (eighteen feet wide), the stump being only one foot off the road, repeated calls to the County that the stump was a hazard, and the County's awareness of marks on the stump indicating that it had previously been hit by vehicles. Based upon these facts, the Court held "that it was reasonably foreseeable that a vehicle would leave the paved portion of the county road and strike the tree stump" ( id. at 613-614; compare Rittenhouse v. State, 134 AD2d 774, 775 [3rd Dept 1987]).
The facts of the instant case stand in contrast. Even after extensive discovery, plaintiff can not point to anything remarkable about the area where the accident occurred that would suggest that it was a "point of particular danger" either in the sense that there was no roadside, that the roadside was palpably unsafe, or that there was a confluence of site specific factors that history and experience indicated to be a threat to motorists. There is no history of accidents in the relevant vicinity that bear any colorable resemblance to the one at issue. In short, there are no facts shown, even assuming actual or constructive notice of them by the Town, that would have arguably triggered the Town's continuing duty to review motorist safety as may have related to the post and implement remedial measures if appropriate. Indeed, the post was intentionally installed by the defendant landowner no closer to the highway than a nearby utility pole at or near the edge of the public right of way.
C. Duty To Maintain Safe Roadside Installations
The third exception obtains where a municipality, having elected to install roadside highway improvements, does so negligently either in their design, construction, or maintenance ( see Bottalico v. State, 59 NY2d 302,305 [1983]). In such cases, although the municipality may not be a fault for a motorist leaving the roadway, it will be liable if its negligence relating to the improvement caused or aggravated a plaintiff's injuries. This basis of this form of liability has long been recognized. For example, in Kaplan v. City of New York ( 10 AD2d 319 [1st Dept 1960] [Stevens, J.]), a taxicab drove off a city street and struck a pillar supporting an elevated transit railroad overpass. There was no evidence that the city was in any way culpable in the taxicab leaving the street. The Court stated that the city "owed the duty of so constructing and maintaining the pillar that it would be in a reasonably safe condition for use by the prudent driver traveling at a reasonable rate of speed even in an emergency" ( id. at 321-322). Such duty would be breached if the proof showed the pillar "constituted an unreasonable and dangerous obstruction" ( id. at 325).
The Court of Appeals addressed this aspect of a municipality's duty to the traveling public in Gutelle v. City of New York ( 55 NY2d 794. There the city installed guardrail abutments that were alleged to be defective, and injuries occurred when a vehicle left the road and struck the same. The Court found summary judgment dismissing the action improper, stating: "That the existence of the allegedly defectively designed abutments did not cause plaintiff's vehicle to leave the roadway in the first instance is of no moment. As long as it can be demonstrated that the abutments were a substantial factor in aggravating plaintiff's injuries, a cause of action may be upheld" ( id. at 796).
The Appellate Divisions have consistently applied Gutelle to sustain causes of action arising out of mishaps with municipal improvements not part of the roadway actually intended for travel. Three Fourth Department cases are examples. In Pontello v. County of Onondaga ( 94 AD2d 427 [4th Dept 1983] [Schnepp, J.], lv dismissed 60 NY2d 1055), it was alleged that a defective highway shoulder adjoining a ditch was a basis of municipal liability when a vehicle went off the highway into the ditch, crashing into a culvert. The Court held "the fact that this alleged negligence of [a defective shoulder] cannot be considered as a cause of the vehicle's leaving the road in the first instance is inconsequential if plaintiff is able to show the existence of a factual issue to support a conclusion that the county's negligence was a substantial factor in producing the injuries from which [decedent] died (id. at 431). A couple of years later, the Fourth Department revisited the issue in Kirisits v. State of New York ( 107 AD2d 156 [4th Dept 1985] [Denman, J.]), a motorist drove off a state highway and hit a guardrail, that was claimed to be defective in both design and the manner in which it was maintained. The Court framed the issue as one of proximate cause, that is, not that the State caused the accident, but that the defective guardrail caused or aggravated the injury (Id at 158). And again in Lizzo v. County of Onondaga ( 170 AD2d 1000 [4th Dept 1991], the Fourth Department applied the same reasoning to affirm the denial of summary judgment in a case where a motorist went off the road and hit a bridge retaining wall that was alleged to have been negligently maintained and the source of aggravation of plaintiff's injuries.
Plaintiff's reliance on this line of cases ignores the fact that in each instance the alleged roadside defect or hazard was attributable to faulty municipal installation or maintenance of a municipal improvement designed to be used in conjunction with, or at least compatible with, the adjacent highway use. These cases have not been extended to impose a duty upon municipalities to ensure that other than municipal installations are compatibly with roadside safety as reflected in the clear recovery zone concept. The reasons may be those suggested by the Court of Appeals in Tomassi ( 46 NY2d 91, supra), being that the private or public benefits of such installations outweigh the incremental gains in public safety resulting from their removal. In addition, unless the municipality owns the road in fee, not typical in cases of rural highways, adjacent property owners may have proprietary rights to use such of their land subject to the public right-of-way as they will, provided that use not infringe upon the right of the public to safe passage ( see generally Ashland Oil Refining Co., 26 NY2d 390, 392; 1995 Ops Atty Gen No. I 95-31; 1992 Ops Atty Gen I 92-60). Research has not revealed any reported case where the clear recovery zone concept has been employed to delimit these landowners' proprietary rights.
IV. Conclusion
In sum, notwithstanding the general acceptance in the traffic engineering community of the clear recovery zone concept, and some sister states' adoption of that concept as an integral aspect of a municipality's duty to provide reasonably safe highways, New York has followed a different path. That path as charted by the Court of Appeals over twenty-five years ago in Tomassi v. Town of Union ( 46 NY2d 91) holds to the proposition that "where the paved road surface is adequate for safe public passage, travel beyond those limits on unimproved land adjacent to the roadway is generally not contemplated or foreseeable, and, therefore, the municipality is under no duty to maintain it" (1B NY PJI3d 1185 [2004]). Application of this principle has not depended upon whether the roadside object or condition satisfies some test of social utility or other criterium of worthiness, as plaintiff argues. The exceptions that are recognized are limited and do not apply to the facts of the present case, even taken, as this Court must take them, in light most favorable to the plaintiff. Should modern circumstances, gained experience, and shifting policy concerns in this field militate in favor of a change in the law, that initiative must come from the appellate courts or legislative branch of government.
Accordingly, the Court must grant the motion for summary judgment dismissing the complaint as against the Town of Galen.