Sherman v. County of Cortland

Spain, J. Appeal from an order of the Supreme Court (Rumsey, J.), entered April 1, 2004 in Cortland County, which denied defendant’s motion for summary judgment dismissing the complaints. These actions stem from a single-car automobile accident which occurred on Cincinnatus Road in the Town of Cincinnatus, Cortland County on July 1, 1999. The driver, Beverly Withey (hereinafter decedent), was killed in the accident and her daughter, Melissa Sherman, suffered serious injury. Thereafter plaintiff Heather Sherman, on her own behalf as decedent’s daughter and as administrator of decedent’s estate, commenced a wrongful death action against defendant. Plaintiff Shirley Withey, as guardian of Melissa Sherman, commenced a personal injury action against defendant. In each action, plaintiffs allege that defendant negligently designed, constructed and maintained Cincinnatus Road, thereby causing the accident. Supreme Court denied defendant’s motion for summary judgment. On defendant’s appeal, we reverse. It is uncontroverted that the accident occurred when decedent’s vehicle, while proceeding northbound on Cincinnatus Road, traveled off the right shoulder of the road into a drainage ditch lying adjacent to the roadway, where it struck a culvert, causing the car to become airborne, rotate 90 degrees on its passenger side and then crash into a utility pole located some 11 feet off the side of the road. The reason the vehicle left the road is unknown; Melissa Sherman has no memory of the event, there were no other witnesses and no defect in the surface of the roadway itself is alleged. Instead, plaintiffs assert that the ditch, culvert and utility pole located in close proximity to the road constituted a dangerous condition created by defendant. [910] “A municipality has a nondelegable duty of maintaining its roads and highways in a reasonably safe condition,” which includes the duty to maintain the condition of paved shoulders alongside the roadway where the municipality has undertaken to provide them (Stiuso v City of New York, 87 NY2d 889, 890-891 [1995]). In addition, the state or a municipality may be liable for conditions adjacent to the highway which interfere with a motorist’s safe and legal use of the roadway, such as where tree limbs encroach upon a roadway (see e.g. Rinaldi v State of New York, 49 AD2d 361, 363 [1975]). “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” (Stiuso v City of New York, supra at 891, quoting Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). Furthermore, even if a duty on the part of the municipality were established, “no liability will attach unless the ascribed negligence of the [municipality] ... is the proximate cause of the accident” (Duger v Estate of Carey, 295 AD2d 878, 878-879 [2002] [internal citations and quotation marks omitted]). Here, it is undisputed that Cincinnatus Road—including the relevant, northbound lane which is over 10 feet in width—was in good condition. This daytime incident took place along a straight and level stretch of the rural road where the speed limit is 55 miles per hour. According to the police report, the weather was overcast and dry and there were no skid marks where the vehicle left the road. Indeed, plaintiffs’ expert did not question the adequacy of the traveling lane or identify any defect in the roadway or shoulder but, instead, listed the ditch, culvert and utility pole as contributing to the accident, ultimately concluding that the accident “was attributable to the dangerous and defectively designed, constructed and maintained roadside area adjacent to Cincinnatus Road.” “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” (Tomassi v Town of Union, supra at 97 [citation omitted]; accord Kirtoglou v Fogarty, 235 AD2d 1019, 1020-1021 [1997]). Significantly, it cannot be said that the ditch, culvert or utility pole caused decedent’s vehicle to leave the road and defendant cannot be held liable for the vehicle’s unforeseeable travel beyond the roadway. Accordingly, plaintiffs’ reliance on the existence and [911] condition of the ditch, culvert and utility pole is misplaced (see Tomassi v Town of Union, supra at 97; Huger v Estate of Carey, supra at 879; Kimber v State of New York, 294 AD2d 692, 694-695 [2002], lv denied 99 NY2d 501 [2002]). Although plaintiffs suggest that defendant may have breached its duty to follow prevailing state and federal standards and guidelines with respect to the width of the shoulder in the vicinity of where decedent’s vehicle left the roadway (see Preston v State of New York, 6 AD3d 835, 836 [2004], Iv denied 3 NY3d 601 [2004]), plaintiffs failed to proffer any link between that alleged inadequacy and the cause of the accident.* As indicated, the pavement was dry and in good condition and there was no indication that decedent attempted to stop the vehicle before it left the road. “[I]n the absence of any competent direct or circumstantial evidence establishing that [defendant’s] negligence ‘was a substantial cause of the events which produced the injury,’ plaintiff[s] failed to make a prima facie showing of proximate cause” (Plante v Hinton, 271 AD2d 781, 782 [2000], quoting Herdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980] [citations omitted]). Under the facts presented here, only speculation could link the width of the road to the proximate cause of the accident and “[m]ere speculation . . . will not suffice” (Plante v Hinton, supra at 782). In light of our holding, we need not address defendant’s remaining contentions. Mercure, J.P., Carpinello and Kane, JJ., concur. Footnotes [*] Conflicting evidence was presented concerning the actual width of the shoulder in the vicinity of the accident. Despite a suggestion by plaintiffs’ expert that a wide shoulder may be helpful to a driver who inadvertently leaves the roadway “to safely return to the roadway,” he never opined that the roadway failed to meet state and/or federal guidelines at the site of the accident or that the absence of a wide shoulder caused the accident.