Poysa v. State

• Decision Date: 21 December 1979
• Docket Number: Nos. 60851,60852,s. 60851
• Citation: 102 Misc.2d 269,423 N.Y.S.2d 617
• Parties: Vaino POYSA and Eva Poysa, Claimants, v. The STATE of New York, Defendant. Edna NORRIS, Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 617

423 N.Y.S.2d 617

102 Misc.2d 269

Vaino POYSA and Eva Poysa, Claimants, v. The STATE of New York, Defendant.

Edna NORRIS, Claimant, v. The STATE of New York, Defendant.

Claim Nos. 60851, 60852.

Court of Claims of New York.

Dec. 21, 1979.

Adams, Theisen & Ward, Ithaca, for claimants; Ralph W. Nash, Ithaca, of counsel.

Robert Abrams, Atty. Gen. by Donald P. Hirshorn, and James G. DiStefano, Asst. Attys. Gen., for defendant.

DECISION

THOMAS J. LOWERY, Jr., Judge.

The claimants seek damages caused by the discharge of rock and water on their property allegedly due to the negligence of the State in the design and reconstruction of East Shore Drive (N.Y.S. Route 34) in the Town of Lansing, County of Tompkins, New York. The claims were bifurcated and jointly tried solely on the issue of liability. ¹

On June 12, 1975, D. & T. Franzese Bros. Inc., under a contract with the State of New York, commenced work on the reconstruction of that part of East Shore Drive known as Esty's Hill. The project generally entailed the widening of the pavement and a reconstruction of the shoulders.

The road at this location ran generally south to north on an upgrade of approximately five per cent for a distance of over one mile. The topography of the land west of the road, where the claimants' property was situated, descended in grade towards Cayuga Lake. To the east of the road was a steep rock slope. A drainage ditch ran along the east edge of the shoulder at the base of the rock slope. Culverts had previously been constructed at intervals under the road. The latter permitted water to flow from the drainage ditch towards the lake.

During the course of reconstruction, and in accordance with design plans prepared by the State, light stone was placed along the eastern edge of the shoulder to form the foreslope of the drainage ditch on the east side of the highway. The loose stone was placed, in part, on top of bedrock and was not stabilized.

In formulating the design for the reconstruction of the road, no tests or studies were conducted by the State to determine the sufficiency of using light unstabilized fill material to construct the foreslope of the drainage ditch. The testimony of the claimants' expert established that, under the circumstances the placement of the unstabilized material was not in accordance with good engineering practices prevailing at that time. Moreover, during the course of the construction, the State was advised by the superintendent for the general contractor that the light stone placement would not hold. He likened the same to putting marbles on a slide. The State failed to heed this warning and directed the contractor to continue to place the fill.

Thereafter, on July 11, 1976, a heavy, but not unprecedented, rain fell on the area. The rainwater from this storm rushed down the drainage ditch, displacing the light stone material. Once the foreslope washed away, the shoulder itself began to erode. The material was carried downhill, blocking various culverts. As a result, water and debris was forced over the roadway onto the Poysa property. Further down the hill, water, stone, and other debris was channeled through a culvert opposite the Norris property. Large quantities of this material inundated the Norris home. ²

State's Liability

These claims call into question those circumstances under which the State may be held liable for the negligent design of a highway. The State seeks to avoid liability, Inter alia, through the imposition of the doctrine of governmental immunity, as set forth in Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63.

The holding in Weiss v. Fote, supra, has generated some confusion. Although the decision appeared to be premised on the doctrine of governmental immunity, the court added the caveat that liability could be found where it is demonstrated that a duly executed highway design plan was evolved without adequate study or lacked a reasonable basis. Thus, in a practical sense, the standard enunciated was no different than the reasonable man standard applied to professional malpractice in the private sector. In neither case may the court, with the benefit of hindsight, question a determination that had a reasonable basis at the time that it was made. As with professional experts, a governmental planning body cannot be called to task merely because subsequent events prove its decision to be in error. Hence, in both cases, liability will ensue only if it is found that due care was not exercised in the making of a judgment, or that no reasonable official or expert could have accepted the course of action chosen. (Compare Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63, Supra; Niagara Frontier Transit System Inc. v. State of New York, 57 A.D.2d 59, 394 N.Y.S.2d 930; Zalewski v. State of New York, 53 A.D.2d 781, 384 N.Y.S.2d 545, with Homere v. State of New York, 48 A.D.2d 422, 370 N.Y.S.2d 246; Williams v. State of New York, 30 A.D.2d 611, 290 N.Y.S.2d 263; St. George v. State of New York, 283 App.Div. 245, 127 N.Y.S.2d 147, Affd. 308 N.Y. 681, 124 N.E.2d 320; Fischer v. City of Elmira, 75 Misc.2d 510, 347 N.Y.S.2d 770, and Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760.) Therefore, it would appear that the doctrine of governmental immunity has no application where the safety of an implemented highway design is questioned.

This conclusion is supported by an examination of the principles underlying the application of governmental immunity ³ as they have evolved to the present day. The notion that certain acts or decisions should not be reviewed by the court rests upon two separate doctrines: (1) public official immunity, and (2) separation of powers immunity.

The doctrine of public official immunity is based on the policy that the acts or determinations of certain officials should not be influenced by the danger of subsequent retaliatory suits for damages. (Rottkamp v. Young, 21 A.D.2d 373, 249 N.Y.S.2d 330, Affd. 15 N.Y.2d 831, 257 N.Y.S.2d 944, 205 N.E.2d 866.) Though historically and most commonly applied to acts of judges (See Murray v. Brancato, 290 N.Y. 52, 48 N.E.2d 257; Lange v. Benedict, 73 N.Y. 12, Writ of error dsmd., 99 U.S. 68, 25 L.Ed. 469; See also, Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331), the immunity has, however, been extended to legislators (East River Gas-Light Co. v. Donnelly, 93 N.Y. 557) and to quasi-judicial determinations of other public officers outside of the judicial branch. (See Schanbarger v. Kellogg, 35 A.D.2d 902, 315 N.Y.S.2d 1013, Mot. for lv. to app. den., 29 N.Y.2d 485, 325 N.Y.S.2d 1026, 274 N.E.2d 754, App. dsmd. 29 N.Y.2d 649, 324 N.Y.S.2d 1033, 272 N.E.2d 590, Cert. den. 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d 789 (District Attorney); Cunningham v. State of New York, App.Div., 1979, 422 N.Y.S.2d 497 (Deputy Attorney General); Rottkamp v. Young, 21 A.D.2d 373, 249 N.Y.S.2d 330, Affd. 15 N.Y.2d 831, 257 N.Y.S.2d 944, 205 N.E.2d 866, Supra (Building Inspector); Matter of Town of Cheektowaga v. City of Buffalo, 67 A.D.2d 812, 413 N.Y.S.2d 52 (City Commissioner of Transportation); See also, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (Public Prosecutor).)

Where it applies, the immunity is absolute, no matter how wrongful or injurious the act, and regardless of the breach of an otherwise recognized tort duty. (East River Gas-Light Co. v. Donnelly, 93 N.Y. 557, Supra ; Murph v. State of New York, 98 Misc.2d 324, 413 N.Y.S.2d 854; Brenner v. County of Rockland, 92 Misc.2d 833, 401 N.Y.S.2d 434.) In such cases, public policy simply prefers the protection of the free exercise of judicial or quasi-judicial discretion over the right to seek redress for any injury resulting from an official's conduct.

Clearly, Weiss v. Fote was not premised on this type of absolute immunity, since the holding there was predicated on a standard of reasonable care. The Weiss court, in effect recognized that courts should be loathed to totally prohibit a review of governmental acts where there is no clear need to do so. (See Grimm v. Arizona Board of Pardons & Paroles, 115 Ariz. 260, 564 P.2d 1227; See also, Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214.) To hold that safety design functions are absolutely immune from review makes little sense where such functions are no different than the functions of professionals in the private sector. In both cases, the judgments made involve no more than the application of sound architectural or engineering practices. This being the case, there is no danger to the public interest in allowing such judgments to be reviewed in negligence suits. (Cf. Ferri v. Ackerman, --- U.S. ----, 100 S.Ct. 402, 62 L.Ed.2d 355.)

The second predicate of immunity, separation of powers, is premised on the notion that the courts may not intrude into the policy making decisions of coordinate branches of government. Thus, it has consistently been held that there is no liability for a breach of the executive or legislative duty to govern, which is owed only to the general public. (Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860; Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635.)

In seeking to determine whether a particular act or decision involves a duty owed only to the general public, the courts have attempted to classify various functions under such amorphous titles as "governmental", "discretionary", "proprietary", or "ministerial". The former two were applied to those cases where the court wished to apply immunity, while the latter two were applied where they did not. (See Separation of Powers Under Discretionary Functions Exception: Political Question in Tort Litigation Against the Government, 56 Iowa Law Rev. 930.) The flaw in such an approach is apparent. Unlike public official immunity where an analysis of the nature of an act or decision is critical, separation of powers immunity should be...