Opinion
July 15, 1982
Appeal from a judgment in favor of claimants, entered October 20, 1980, upon a decision of the Court of Claims (Hanifin, J.). Following a bifurcated trial, claimant Bruce Minckler was awarded a judgment of $50,000 against the State for injuries sustained as a passenger in a one-car accident on a State highway. The judgment against the State followed an interlocutory judgment finding that the State had negligently maintained the highway shoulder and apportioning liability 10% to claimant, 50% to the vehicle's driver and 40% to the State. The State has taken this appeal and argues that the trial court mistakenly found that it owed a duty to claimant to maintain the highway shoulders for use by the traveling public. We agree. Under the circumstances presented by this case, in which the driver maneuvered his vehicle onto the defective shoulder solely by reason of his own negligence and not as the result of any emergency, the State owed no duty to those traveling in the car to properly maintain the highway shoulder ( Rolando v. State of New York, Dept. of Transp., 58 A.D.2d 694, mot for lv to app den 43 N.Y.2d 643, app dsmd 43 N.Y.2d 746; Guyotte v. State of New York, 22 A.D.2d 975, mot for lv to app den 15 N.Y.2d 483). Accordingly, any negligence by the State in regard to maintenance of the roadway's shoulder cannot serve as the basis for an award in this case. Judgment reversed, on the law, without costs, and claim dismissed. Mahoney, P.J., Sweeney, Kane, Main and Yesawich, Jr., JJ., concur.