Bottalico v. State, s. 62254

• Decision Date: 09 June 1983
• Docket Number: Nos. 62254,s. 62254
• Citation: 451 N.E.2d 454,464 N.Y.S.2d 707,59 N.Y.2d 302
• Court: New York Court of Appeals Court of Appeals
• Parties: , 451 N.E.2d 454 Lisa BOTTALICO et al., Respondents, v. STATE of New York et al., Appellants. Bruce MINCKLER et al., Appellants, v. STATE of New York, Respondent. (Claim& 60914.) Court of Appeals of New York

Page 707

464 N.Y.S.2d 707

59 N.Y.2d 302, 451 N.E.2d 454

Lisa BOTTALICO et al., Respondents, v. STATE of New York et al., Appellants.

Bruce MINCKLER et al., Appellants, v. STATE of New York, Respondent.

(Claim Nos. 62254 & 60914.)

Court of Appeals of New York.

June 9, 1983.

Robert Abrams, Atty. Gen. (Michael S. Buskus and Peter H. Schiff, Asst. Attys. Gen., of counsel), for appellants in the first above-entitled action and for respondent in the second above-entitled action.

Ronald G. McCormack, Bardonia, for respondents in the first above-entitled action.

Dominick Tocci, Albany, for appellants in the second above-entitled action.

OPINION OF THE COURT

COOKE, Chief Judge.

When the State or one of its governmental subdivisions undertakes to provide a paved strip or shoulder alongside a roadway, it must maintain the shoulder in a reasonably safe condition for foreseeable uses, including its use resulting from a driver's negligence. Injuries arising from a traveler's use of an improperly maintained roadway shoulder may be compensable through application of general principles of negligence and comparative negligence.

Claimants brought these actions to recover for injuries sustained when the automobiles in which they were riding went out of control after encountering precipitous drops from the roadways onto the shoulders. In each case, the Court of Claims found that the State had negligently maintained the shoulder and that this was a proximate cause of plaintiffs' injuries. The plaintiffs were also found to be negligent in driving off the roadway. Liability was apportioned according to fault.

The sole question on these appeals is whether the State may be held liable for resulting injuries caused in part when a traveler negligently drives off the roadway onto a shoulder maintained in a dangerous condition. In providing a roadway itself, the State has a duty to maintain it in a reasonably safe condition (see Gutelle v. City of New York, 55 N.Y.2d 794, 795, 447 N.Y.S.2d 422, 432 N.E.2d 124; Tomassi v. Town of Union, 46 N.Y.2d 91, 97, 412 N.Y.S.2d 842, 385 N.E.2d 581; Annino v. City of Utica, 276 N.Y. 192, 196, 11 N.E.2d 726). A comparable duty exists when the State undertakes to provide a shoulder adjacent to the roadway. It must maintain the shoulder in a reasonably safe condition for the foreseeable uses of it.

In Tomassi v. Town of Union (supra), 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" (Tomassi v. Town of Union, supra, 46 N.Y.2d at p. 97, 412 N.Y.S.2d 842, 385 N.E.2d 581, see, also, Flansburg v. Town of Elbridge, 205 N.Y. 423, 98 N.E. 750; King v. Village of Fort Ann, 180 N.Y. 496, 73 N.E. 481).

It is, however, both foreseeable and contemplated that, once provided, an improved shoulder at times will be driven upon. A shoulder may be described as that land immediately adjacent to and running alongside the main or paved portion of the highway, improved for limited purposes such as for allowing distressed automobiles to move out of the flow of traffic (see Webster's Third New International Dictionary p 2104). Although constructed for limited purposes, the very existence of the shoulder alters a driver's sense of safety and of the caution needed when traveling along the roadway. The driver may have no reason to expect that moving from the roadway to the...