Tomassi v. Town of Union

• Decision Date: 07 December 1978
• Citation: 46 N.Y.2d 91,412 N.Y.S.2d 842,385 N.E.2d 581
• Parties: , 385 N.E.2d 581 Ettore TOMASSI et al., Respondents, v. TOWN OF UNION, Appellant. Ettore TOMASSI et al., Respondents, v. Louis FORBIDUSSI et al., Appellants. Robert CORWIN et al., Respondents, v. Margaret TANZINI et al., Appellants. Robert CORWIN et al., Respondents, v. Louis FORBIDUSSI, Appellant. Louis FORBIDUSSI et al., Plaintiffs, v. Margaret TANZINI et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 842

412 N.Y.S.2d 842

46 N.Y.2d 91, 385 N.E.2d 581

Ettore TOMASSI et al., Respondents, v. TOWN OF UNION, Appellant.

Ettore TOMASSI et al., Respondents, v. Louis FORBIDUSSI et al., Appellants.

Robert CORWIN et al., Respondents, v. Margaret TANZINI et al., Appellants.

Robert CORWIN et al., Respondents, v. Louis FORBIDUSSI, Appellant.

Louis FORBIDUSSI et al., Plaintiffs, v. Margaret TANZINI et al., Defendants.

Court of Appeals of New York.

Dec. 7, 1978.

Thomas F. O'Connor, Binghamton, for Louis Forbidussi, appellant.

David M. Gouldin, Binghamton, for Margaret Tanzini and another, appellants.

Brian R. Wright, Binghamton, for Town of Union, appellant.

Remo A. Allio, Endicott, and Harold Boreanaz of Boreanaz, O'Shea and Nemoyer, Buffalo, for Robert Corwin and another, respondents.

Vincent P. Vetrano, Endicott, for Ettore Tomassi and another, respondents.

OPINION OF THE COURT

COOKE, Judge.

Buffalo Street is a lightly traveled, east-west, two-lane roadway traversing a sparsely populated section of the Town of Union in Broome County. The macadam pavement is approximately 22 feet wide, with a shallow storm-water drainage ditch flanking both sides. On its southerly side, a driveway, built over a 15-inch sluice pipe in the drainage ditch, connects Buffalo Street with the Serowik home. The Serowiks had erected a stone wall and earthen embankment immediately adjacent to the drainage ditch and sluice pipe. An attractive flower garden adorned the embankment.

On the afternoon of September 24, 1972, the flowers were in bloom. It had rained earlier in the day but visibility was good although the roadway was wet. An automobile, owned by Alfred Tanzini and driven by his wife, was proceeding in a westerly direction along Buffalo Street. By her own admission, Mrs. Tanzini was not paying careful attention to her driving. She had just realized that she had driven past an intersecting road leading to her destination when her attention was drawn and affixed to the flower bed on the Serowik property. At the same time, an automobile owned and driven by Louis Forbidussi with passengers Ettore Tomassi and Robert Corwin was proceeding easterly on Buffalo Street at what was, according to one witness, an excessive rate of speed. By the time Mrs. Tanzini saw the approaching vehicle there was little she could do to avoid the impending collision. Forbidussi, too, took no defensive steps until impact was unavoidable, although he had the Tanzini vehicle in sight within ample time to avoid the accident. The impact from the resulting collision in the eastbound lane of the roadway forced the Forbidussi vehicle into the ditch where it hit the right bank. From there the car struck the stone wall adjacent to the ditch careened into the sluice pipe and came to rest against the driveway and pipe.

A jury found in favor of plaintiffs Tomassi and Corwin, apportioning 50% Of the liability against Tanzini, 25% Against Forbidussi and 25% Against the Town of Union. The single issue we address on this appeal is whether the town may be held to answer in damages for permitting the ditch to exist on the sides of Buffalo Street. The theory of plaintiffs' case against the town is that the construction of the ditch in such close proximity to the pavement constituted a hazard to motorists which was the cause of their injuries. Viewing the evidence, as we must, in a light most favorable to plaintiffs (Commisso v. Meeker, 8 N.Y.2d 109, 202 N.Y.S.2d 287, 168 N.E.2d 365), we hold that there are no grounds upon which the liability of the town may be properly predicated.

A municipality, of course, is not an insurer of the safety of its roadways. The design, construction and maintenance of public highways is entrusted to the sound discretion of municipal authorities and so long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied (Annino v. City of Utica, 276 N.Y. 192, 196, 11 N.E.2d 726, 727; Boyce Motor Lines v. State of New York, 280 App.Div. 693, 696, 117 N.Y.S.2d 289, affd. 306 N.Y. 801, 118 N.E.2d 819). The liability of a municipality begins and ends with the fulfillment of its duty to construct and maintain its highways in a reasonably safe condition, taking into account such factors as the traffic conditions apprehended, the terrain encountered, fiscal practicality and a host of other criteria (see, generally, Liability of Governmental Entity or Public Officer for Personal Injury or Damages Arising out of Vehicular Accident Due to Negligent or Defective Design of a Highway, Ann., 45 A.L.R.3d 875, and cases cited therein; cf. Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63).

Undoubtedly, certain risks are unavoidable. Especially in rural locales, such objects as utility poles, drainage ditches, culverts,...