Weiler v. Town of Osceola

• Decision Date: 18 July 1966
• Citation: 51 Misc.2d 163,273 N.Y.S.2d 90
• Parties: Alvin WEILER, Plaintiff, v. TOWN OF OSCEOLA, Defendant.
• Court: New York Supreme Court

Page 90

273 N.Y.S.2d 90

51 Misc.2d 163

Alvin WEILER, Plaintiff, v. TOWN OF OSCEOLA, Defendant.

Supreme Court, Lewis County.

July 18, 1966.

[51 Misc.2d 164] Frank G. Pratt, Utica, for plaintiff.

William J. Powers, Jr., Rome, for defendant.

DECISION

RICHARD J. CARDAMONE, Justice.

The plaintiff is the owner of an Allis-Chalmers Crawler tractor. On April 11, 1965, (Easter Sunday) Robert Blair, the Town Superintendent of Highways of the Town of Osceola, Lewis County, New York, attempted to extricate a passenger vehicle stuck in the mud and snow in the Town of Osceola. While attempting this, the town truck which Blair was operating also became mired down. The plaintiff, who had been logging the day before on premises adjacent to this town road had left his tractor near the road, after first removing the battery and draining the radiator so that the tractor would not freeze. According to the testimony, Blair operated the plaintiff's tractor while extricating the town truck and the passenger vehicle. In so doing, however, the tractor, which had no water in it, was damaged. This action was thereafter instituted by the plaintiff against Robert Blair and the Town of Osceola. Blair has defaulted in appearing.

Highway officers are personally liable for injuries to property or persons where they are negligent in connection with the repair or construction of highways. They are not personally liable, however, for acts done without negligence so long as they act within the scope of their authority and within the discretion which the law gives them in performing their duties. Where the Town Superintendent acts honestly and without negligence, he is not personally responsible (Bowman v. Town of Chenango, 227 N.Y. 459, 125 N.E. 809 (1920)). This immunity obtains only so long as the Superintendent acts within the scope of his authority, and he is liable where he exceeds his discretionary powers or commits a trespass (Beardslee v. Dolge, 143 N.Y. 160, 38 N.E. 205 (1894)). The authority and discretion vested in the Town Superintendent of Highways must be exercised according to the interests of the town and not arbitrarily, wastefully or negligently (Gardner v. Town of Cameron, 155 App.Div. 750, 140 N.Y.S. 634 (Fourth Dep't. 1913); affd. 215 N.Y. 682, 109 N.E. 1074 (1915)). The Town Superintendent here was unquestionably negligent in his use of the plaintiff's tractor. No doubt exists as to his own personal liability to the plaintiff for his negligent act (Flansburg v. Town of Elbridge, 205 N.Y. 423, 98 N.E. 750, 41 L.R.A.,N.S., 546 (1912); Campbell v. Powers, 155 App.Div. 862, 140 N.Y.S. 675 (Third Dep't. 1913)).

The question to be resolved is whether the Town of Osceola is also liable for the Highway Superintendent's actions. Under prior law, towns were not liable in the absence of a statute, for damages caused by defective highways but the Commissioner, as an independent, public official, was solely responsible. The Highway Superintendent was not held to be the agent of the town, so as to make the town liable for his negligent acts, but an independent, public officer (Lynch v. Town of Rhinebeck, 210 N.Y. 101, 103 N.E. 888 (1913); People ex rel. Morey v. Town Board of Audit of Town of Oyster Bay, 175 N.Y. 394, 397, 67 N.E. 620, 621 (1903); Short v. Town of Orange, 175 App.Div. 260, 161 N.Y.S. 466 (Third Dep't. 1916); Kittle v. Town of Kinderhook, 214 App.Div 345, 212 N.Y.S. 410 (Third Dep't. 1925)). The Town Superintendent of Highways acts in his official capacity, independent of control and direction on the part of the town, and owes it no duty or obligation except to dispense monies which are supplied by the town (Clarke v. Town of Russia and Herkimer County, 257 App.Div. 703, 15 N.Y.S.2d 415 (Third Dep't. 1939) revd. on other grounds, 283 N.Y. 272 (1940); Lynch v. Town of Rhinebeck, (supra) 210 N.Y. at page 106, 103 N.E. at page 890).

By legislative enactment (Town Law, § 65--a and Highway Law § 215), however, liability for damages caused by defective highways is imposed upon the towns, providing the statutory requisites are met (Hay v. Town of Onondaga, 194 Misc. 773, 87 N.Y.S.2d 473 (Sup.Ct. Onondago Co.1949)). The waiver of immunity of the State (Ct.Cl.Act., § 8) waives similarly the immunity of the State's political subdivisions for the torts of its officers or employees while they are acting as such (Bernardine v. City of New York, ...