| Madden v Town of Greene |
| 2009 NY Slip Op 06066 [64 AD3d 1117] |
| July 30, 2009 |
| Appellate Division, Third Department |
| Kurtis R. Madden, an Infant, by Wendy L. Madden, His Parent andGuardian, et al., Respondents-Appellants, v Town of Greene et al.,Appellants-Respondents. |
—[*1] Sugarman Law Firm, L.L.P., Syracuse (Rebecca A. Crance of counsel), for Dean Calice andanother, appellants-respondents. Thorn, Gershon, Tymann & Bonanni, L.L.P., Albany (Arthur H. Thorn of counsel), forrespondents-appellants.
Garry, J. Cross appeals from an order of the Supreme Court (Rumsey, J.), entered May 21,2008 in Chenango County, which, among other things, partially denied a motion by defendantTown of Greene for summary judgment dismissing the complaint against it.
In June 2003, plaintiff Kurtis Madden (hereinafter plaintiff), then 16 years old, was involvedin a motor vehicle accident while driving with a friend (hereinafter the passenger) on HotchkissRoad in the Town of Greene, Chenango County. Both plaintiff and the passenger were wearingshoulder belts but had not buckled their lap belts. Plaintiff allegedly has no memory of theaccident, but the passenger testified that as the vehicle negotiated the second of two curves,plaintiff steered suddenly to the right and partially onto the shoulder in order to avoid anoncoming dump truck that appeared to be partially in plaintiff's lane of traffic. The passenger[*2]testified that plaintiff steered back onto the paved roadwaybut lost control of the vehicle, which then left the road in the area of a small bridge and culvertover a stream, descended a slope, crossed the stream, and came to rest on its roof. Plaintiff wasseverely injured.
Plaintiffs commenced this negligence action against defendants Chris Freeman and DeanCalice, the driver and the owner of the dump truck, respectively, and against defendant Town ofGreene (hereinafter the Town), alleging that Freeman's negligent operation of the dump truckprecipitated the accident by forcing plaintiff to take evasive action and that the Town negligentlyfailed to install, maintain, and repair a sufficient guardrail that would have prevented plaintiff'svehicle from leaving the road. The Town moved for summary judgment dismissing thecomplaint on the ground that it had not received prior written notice of any defective highwaycondition and that any negligence on its part was not the proximate cause of plaintiff's injury.Freeman and Calice moved for summary judgment dismissing the complaint against them onproximate cause grounds, and plaintiffs cross-moved for partial summary judgment on the issueof the Town's alleged breach of its duty of care. Supreme Court denied all of the motions exceptthat part of the Town's motion relating to plaintiffs' claims of negligent maintenance and repairof the existing guardrail, which claims were dismissed pursuant to the Town's prior writtennotice law. These cross appeals ensued.
Local Law No. 1 (1974) of the Town of Greene provides that no civil action for damages orinjuries to person or property arising out of alleged highway defects may be maintained againstthe Town in the absence of prior written notice. It is undisputed that no such notice was given.Plaintiffs' claims alleging negligent maintenance and repair of the existing guardrail were basedon nonfeasance rather than on the affirmative creation of a defect or dangerous condition andwere properly dismissed (see Akley v Clemons, 237 AD2d 780, 782 [1997]). Further, weagree with Supreme Court that plaintiffs' claims based on the Town's alleged negligent failure todesign and install a sufficient guardrail were not subject to dismissal on prior written noticegrounds because they relate to highway planning decisions that are not within the purview of thisrequirement (see Lugo v County of Essex, 260 AD2d 711, 713 [1999]). "'[M]unicipalities owe a nondelegable duty to the public to construct and maintain their roads in areasonably safe condition' " (Russo-Martorana v Theophilakos, 46 AD3d 1047, 1048[2007], quoting Temple v Chenango County, 228 AD2d 938, 938 [1996]). The duty isgenerally "limited to reasonable safety of those portions of the road intended for vehicular use"(Hill v Town of Reading, 18 AD3d 913, 915 [2005]), but a roadside hazard such as asteep slope or a ditch may be so "inherently dangerous [that] a municipality has a 'duty toprevent vehicles from leaving the road or, if they do, to eliminate the danger' " (Popolizio vCounty of Schenectady, 62 AD3d 1181, 1182 [2009], quoting Hill v Town ofReading, 18 AD3d at 915-916 [internal quotation marks omitted]).
The fact that the guardrail in place at the time of the accident did not comply with currentdesign standards is undisputed. The Town's highway superintendent averred by affidavit that itwas the Town's policy to gradually upgrade culverts and roadways as repairs became necessaryand as finances permitted, and that the culvert where the accident occurred had been markedwith a delineator to indicate that it did not comply with current standards and should be upgradedwhen significant repairs or redesign were required. However, a municipality is not required toupgrade highways that complied with design standards when they were built merely because thestandards were subsequently upgraded (see Vizzini v State of New York, 278 AD2d 562,563 [2000]; Merino v New York City Tr. Auth., 218 AD2d 451, 457 [1996], affd89 NY2d 824 [1996]). Such upgrades become necessary when the roadway has a history ofaccidents or [*3]when the roadway undergoes significant repairsor reconstruction (see Vizzini v State of New York, 278 AD2d at 563). The Towncontends that it had no duty to upgrade the guardrail because no previous accidents had occurredthere and the roadway had no history of significant repair. In this regard, however, the record isdeficient. The highway superintendent averred that many of the Town's culverts and most of itsroads were constructed before current design guidelines became effective, but no evidence wasprovided as to when the culvert and guardrail where the accident occurred were constructed orwhat standards were in effect at that time. Questions of fact therefore exist as to whether the roadcomplied with applicable engineering standards when it was built and whether any suchstandards formed the basis of the design and installation of the existing guardrail (see Templev Chenango County, 228 AD2d at 939). Further, the Town did not establish its entitlementto qualified immunity as a matter of law for its highway planning decisions with regard to theoriginal design and placement of the guardrail because it did not show that these determinationsresulted from " 'a deliberate decision-making process' " (Norton v Village of Endicott,280 AD2d 853, 854-855 [2001], quoting Holmes v City of Elmira, 251 AD2d 844, 845[1998]; see Popolizio v County of Schenectady, 49 AD3d 1117, 1119 [2008]).
As to the road's history of significant repairs, one of the Town's experts stated that a "major"repaving of the highway took place in 1996. Merely overlaying a highway with new pavement,as opposed to "ripping it out and rebuilding it or reconfiguring it," does not constitute significantrepair or reconstruction for the purpose of requiring a municipality to upgrade a roadway tocomply with current design standards (Hay v State of New York, 60 AD3d 1190, 1192[2009]). Whether the work performed in 1996 on this roadway was sufficiently extensive toconstitute significant repair or reconstruction obligating the Town to upgrade the culvert andguardrail cannot be determined on this record because no evidence of the nature and extent of thework, other than the expert's brief reference, was provided. The limited proof before SupremeCourt did not permit a determination whether the Town was negligent in the original design ofthe guardrail or in subsequently failing to modify the design. Supreme Court therefore properlydenied both the Town's motion for summary judgment and plaintiffs' cross motion for summaryjudgment on the issue of the Town's alleged breach of duty.
Even when there are factual issues as to a breach of duty, "summary judgment neverthelessis appropriate when the proof negates proximate cause as a matter of law" (Russo-Martoranav Theophilakos, 46 AD3d at 1048). The Town contends that it should have been grantedsummary judgment because plaintiff's accident was not proximately caused by the absence orinadequacy of a guardrail. The Town's expert opined that plaintiff's accident would still haveoccurred even if a guardrail complying with current standards had been in place because hisvehicle left the road before reaching the area where such a guardrail would have been located.The expert further opined that the accident was caused by plaintiff's alleged excessive speed andoversteering rather than by any defect in the guardrail, and that the severity of plaintiff's injurieswas caused by his failure to wear a lap belt. Plaintiffs' experts submitted contradictory affidavitsopining that the vehicle left the road at a different location closer to the culvert, where theyallege that current standards require a guardrail that would have kept the vehicle on the road.They further assert that a lap belt would not have prevented plaintiff's injuries. We agree withSupreme Court that the contentions of plaintiffs' experts raise substantial issues of fact barringsummary judgment and that the alleged defects in the expert analyses on both sides do not renderthem incredible as a matter of law but, instead, raise questions of weight and credibility forfactual determination.[*4]
Finally, Freeman and Calice contend that their motion forsummary judgment should have been granted because there is no evidence that Freeman'snegligence proximately caused the accident. They argue that there is no evidence that the truckwas traveling at a high rate of speed or made any sudden movement into plaintiff's lane, and thatthe passenger's testimony that it appeared to be encroaching in their lane does not establish thatplaintiff himself observed the truck or believed that it was in his travel lane. Supreme Courtfound that plaintiff's abrupt swerve to the right just after his passenger allegedly observed thatthe truck appeared to be in their lane provided a basis from which the factfinder could reasonablyinfer that he had made the same observation. We agree that, given the lower standard of proofthat may be applicable on this issue if plaintiff establishes a causal connection between hisclaimed amnesia and Freeman's alleged negligence, the passenger's testimony was sufficient topresent issues of fact precluding summary judgment (see Noseworthy v City of NewYork, 298 NY 76, 80 [1948]; Schechter v Klanfer, 28 NY2d 228, 232-233 [1971]).
Cardona, P.J., Spain, Rose and Kane, JJ., concur. Ordered that the order is affirmed, withoutcosts.