Rinaldi v. State
| Decision Date | 13 November 1975 |
| Docket Number | No. 57951,57951 |
| Citation | 374 N.Y.S.2d 788,49 A.D.2d 361 |
| Parties | Frances RINALDI, as Administratrix of the Estate of Albert Rinaldi, Deceased, Respondent, v. STATE of New York, Appellant. Claim |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen., (Jeremiah Jochnowitz and Ruth Kessler Toch, Albany, of counsel), for appellant.
Burchetta, Goldsand & Burchetta, P.C., Carmel (Joseph L. Burchetta, Carmel, of counsel), for respondent.
Before HERLIHY, P.J., and GREENBLOTT, KANE, MAIN and REYNOLDS, JJ.
At about 7:20 P.M. on November 8, 1972, Albert Rinaldi, deceased, was operating his automobile in a generally southerly direction on New York State Highway Route No. 22, as he was homeward bound from his employment at the Castle Precision Instruments Company. At a point on the highway about two-tenths of a mile northerly of the north boundary of Putnam County and where the highway is bounded on the west by property of one Nikola, a large leader limb from a 160-year-old maple tree fell, and crashed down on Rinaldi's vehicle, causing his death. The maple tree was located within the highway right-of-way and but a very few feet from the easterly edge of the paved portion of the highway. The leader limb had, prior to falling, extended outward and over both the north and southbound lanes of the highway. Inspection subsequent to the accident revealed an area of advanced disease and decay near the anchor point of the leader limb, as well as a larger but similarly decayed area on the trunk of the tree. At the time of the accident it was windy and raining. The question of the possible contributory negligence of the driver has not been raised, for the obvious reason that there is not an iota of evidence in the record that would support such a theory. After trial, the court awarded damages to the estate in the sum of $375,000, and from the judgment thereon the State now appeals.
The State contends that it had no notice of any defective, diseased or dangerous condition of the tree; that its inspection procedures were reasonable and satisfied the requirements of the law; that the accident was due to an act of God, and that the award was excessive.
It is well settled that the State has a duty to maintain its highways in a reasonably safe condition for travel (Highway Law § 12; Doulin v. State of New York, 251 App.Div. 767, 295 N.Y.S. 663, affd., 277 N.Y. 558, 13 N.E.2d 472) and this duty extends not only to the road surface and shoulders, but also applies to conditions Adjacent to and Above the highway, which could reasonably be expected to result in injury and damage to the users thereof (Edgett v. State of New York, 7 A.D.2d 570, 184 N.Y.S.2d 952; Doulin v. State of New York, supra). That this duty extends to trees which overhang a highway was clearly enunciated by then Mr. Justice Herlihy in Edgett (supra) 7 A.D.2d at p. 574, 184 N.Y.S.2d at p. 956 where he wrote:
A tree owned by the State with branches overhanging the highway constitutes potential danger to the traveling public and the duty to properly inspect and correct by trimming or removal is essential to proper maintenance.
It is, of course, equally certain that while the State has this duty, no liability attaches unless the State has had actual or constructive notice of the dangerous or potentially dangerous condition (Berkshire Mut. Fire Ins. Co. v. State of New York, 9 A.D.2d 555, 189 N.Y.S.2d 333) and then fails to take reasonable measures to correct the condition.
The court found that the State had constructive notice, if not actual notice, and that reasonable inspection procedures could have readily divulged the dangerous condition. We agree. Perusal of the record reveals that several clearly visible alert signals existed which, if not singularly, collectively heralded the distinct probability of impending danger and disaster on this much traveled highway. To begin with, claimant's expert testified to the two large areas of decay on the tree. Concededly, the upper area might have been obscured from casual observation by foliage and limbs, but the lower affected area was three and one half feet by two and one half feet in dimension and...
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