[1995 NY Int. 310]
Decided December 28, 1995
Anthony J. DeMarco, for appellant.
John Hogrogian, for respondent.
MEMORANDUM:
The order of the Appellate Division should
be reversed, with costs, and the case remitted to the Appellate Division
for consideration of the facts pursuant to CPLR 5613.
Plaintiff suffered serious personal injuries while a passenger
in an automobile travelling on Todt Hill Road in Staten Island. The
driver of the vehicle swerved off the road when an
animal darted in front of the car. The driver swerved onto what
he thought was the shoulder or "swale," a paved concrete strip abutting
the asphalt roadway. He was unable to steer back onto the road, because
one of his tires became stuck in the swale in the manner of a bowling ball
in the gutter lane. The car eventually struck a boulder and went
out of control.
Plaintiff commenced this action alleging,
among other things, that the City negligently maintained the section of
Todt Hill Road where the accident occurred. Specifically, plaintiff
alleged that defendant had created a "crowning effect on the roadway
surface such that [the roadway] was pitched into a depression on the shoulder,"
which resulted in a hazard to
vehicles. At trial, plaintiff's reconstruction expert testified
that the section of Todt Hill Road where the accident occurred was unsafe
because of the near vertical drop-off or swale at the
side of the road, a condition he represented was caused by defendant's
repeated resurfacing of the road. The expert opined that the proximate
cause of the accident was the unsafe condition of the road.
After a bifurcated
jury trial, defendant was found 65% negligent and the driver of the vehicle
35% negligent, and plaintiff was awarded $3,750,000 in damages. The
Appellate
Division reversed the judgment of Supreme Court and dismissed the complaint
on the ground that defendant was under no duty to maintain unimproved land
adjacent to the roadway, citing Tomassi v Town of Union (46 NY2d 91).
A municipality has the nondelegable duty of
maintaining its roads and highways in a reasonably safe condition (see
Friedman v State of New York, 67 NY2d 271). This duty extends to
conditions adjacent to the highway, and if the State or governmental subdivision
undertakes to provide a paved strip or shoulder alongside the roadway,
it must maintain that shoulder in a reasonably safe condition for foreseeable
uses, including those uses resulting from a driver's negligence or
an emergency (see Bottalico v State of New York, 59 NY2d 302, 305-306).
On the other hand, 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 (see Tomassi, supra, at 97).
The Appellate Division's reliance on Tomassi
was misplaced, as the court could not have determined as a matter of law
that the accident was caused by a condition existing on unimproved land.
* * * * * * * * * * * * * * * * *
Order reversed, with costs, and case remitted to the Appellate Division,
Second Department, for further proceedings in accordance with the memorandum
herein. Chief Judge Kaye and
Judges Simons, Bellacosa, Smith, Levine and Ciparick concur. Judge
Titone took no part.
Decided December 28, 1995