GREGA v. THE STATE OF NEW YORK, #2002-029-148, Claim No. 101901 by Q9Pg4wvt


									GREGA v. THE STATE OF NEW YORK, #2002-029-148, Claim No. 101901


Liability only - Dead tree 13 feet from State road fell on claimant’s vehicle. Court finds State
had constructive notice of a dangerous condition which it failed to remedy. Inspection is not
reasonable. State found 100% liable.

                                         Case Information

UID:                                   2002-029-148
Claimant(s):                           THOMAS GREGA

Claimant short name:                   GREGA

Footnote (claimant name) :

Defendant(s):                          THE STATE OF NEW YORK

Footnote (defendant name) :            The caption has been amended sua sponte to reflect the only
                                       proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):                       101901

Motion number(s):

Cross-motion number(s):

Judge:                                 STEPHEN J. MIGNANO

Claimant’s attorney:                   Robert C. Lipsky, Esq.

Defendant’s attorney:                  Hon. Eliot Spitzer
                                       Attorney General of the State of New York
                                       By: Dewey Lee, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:                        February 15, 2002

City:                                  White Plains


Official citation:

Appellate results:

    The caption has been amended sua sponte to reflect the only proper defendant.
See also (multicaptioned case)

           This claim for personal injury arose from an accident on Route 44 in Amenia, New York on September 17,
1999 at approximately 8:20 a.m. The trial was bifurcated and this decision deals only with the issue of liability.
           It was established at trial that Route 44 generally runs in an east-west direction.2 Claimant testified that on
the morning of September 17, 1999, at approximately 8:00 a.m., he left Amenia, New York to return to his home in
Poughkeepsie. He stated that he was traveling westbound on Route 44 for about 15 minutes when suddenly a tree
landed on the roof and windshield of his 1994 Toyota pickup truck. The windshield of the truck collapsed in on
claimant (see Exhs. 1, 2 and 3). He testified that both his hands hurt and were bleeding. Claimant stated that the
tree fell from his left or the south side of Route 44; that the tree was dry and brittle; that the tree shattered when it hit
his vehicle and pieces of bark flew off the tree; that there were no leaves on the branches of the tree which fell on his
vehicle. He further stated that the portion of the tree trunk which remained standing had dried bark hanging from it
(see Exhs. 10, 11, 13, 14, 16 and 17). On cross-examination, claimant stated that the stump of the subject tree was
located approximately 13 feet from the edge of the roadway. Claimant stated it was located about 30 yards from
the nearest mile marker which was mile marker 2228.
           John T. Moran was called as a witness by claimant. Mr. Moran testified that (1) he is a graduate of the
University of Massachusetts Stockbridge School of Agriculture majoring in Agriculture and Park Management; (2)
he has attended yearly lectures and conferences regarding tree care and maintenance and has lectured regarding tree
evaluation and maintenance; (3) he also published articles in trade magazines; (4) he has worked in the tree industry
since 1969, is a consulting Arborist and owns his own company Arbor Care, Inc.; (5) he is certified by the
International Society of Arbor Culture, has a Massachusetts Arborist certification and is a licensed Arborist in the
State of Connecticut. The Court accepted the witness as an expert in the field of tree care, without objection.
           Mr. Moran testified that (1) he met claimant on October 11, 1999 when he went to the scene of the accident
and inspected the portion of tree which was still standing; (2) he identified the tree as an American Elm and
measured the diameter of the tree as 18 inches; he took photographs of the tree (Exhs. 4, 5, 6 and 7) and stated that
approximately 20 feet of the stem of the tree was still standing after the top portion fell on claimant’s vehicle; (3) he
noticed mushrooms growing at the base of the subject tree and that all the bark was peeling off the tree; (4) he
measured the distance from the edge of the road to the base of the tree as approximately 13 feet; (5) from looking at
the diameter of the tree, he estimated the height of the subject tree prior to the top of the tree falling was at 40 feet to
50 feet. The witness stated that the fact the bark was missing from the tree tells him that the tree had been dead for
a long period of time as does the presence of mushrooms at the base of the tree because this kind of mushroom
grows from decayed wood.
           Mr. Moran opined that the subject tree died of Dutch Elm Disease in 1996 based upon the amount of bark
that was coming off the tree. He stated his opinion that the tree would have started showing signs that it was dying
in 1996 in that the leaves on the tree start to turn yellow prematurely; that in 1997 only about 10% of the leaves on
the tree would have grown and the remainder of the tree would have been dead; that he believes the bark would have
started to peel off in the summer of 1997 and all the leaves would have been off the tree during the summer months
indicating the tree was dead. The witness stated that the fact the tree was dead would have been visible from Route
44 by 1997.
           On cross-examination, the witness was shown Exhibit F, a Report on Weather Conditions on Route 44 in
the Town of Amenia on September 16 and 17, 1999 prepared by Weather Surveys. Page 3 of the report relates that
Hurricane Floyd was located off the coast of North Carolina on September 16, 1999 and this produced heavy rain in
the Town of Amenia. The report also relates that on September 16, 1999 the winds were 10 to 20 miles per hour
(MPH) in the morning and increased to 15 to 25 MPH in the afternoon and night with gusts to 30 to 45 MPH (Exh.
F, Pg. 4). The exhibit also reports that on September 17, 1999, the date of the subject accident, the winds during the
day were 15 to 25 MPH with gusts to 25 to 35 MPH (id). The witness stated that winds of 15 to 25 MPH would not

  While the area of the subject accident was located on a curve in the road, the road generally
runs in an east-west direction, the Court will refer to it as such for ease of reference as the parties
did at trial.
have an effect on trees but that wind gusts of 30 to 45 MPH might cause trees to be weakened. The witness stated
that winds such as those recorded on September 16 and 17, 1999 were not unusual.
           The State called as a witness Richard D. Howard. Mr. Howard testified that (1) he has been employed by
the New York State Department of Transportation (hereinafter DOT) for 24 years; (2) that on the date of the subject
accident he held the position of Highway Maintenance Supervisor II and currently holds the same position; (3) as
part of his duties he performs road inspections of State roads looking for dead trees located on the side of the roads;
(4) that the inspection is a windshield survey; that is, as he drives along the road, traveling at about 10 to 15 MPH he
scans both sides of the road looking for dead trees; (5) that he performs this inspection in a State vehicle equipped
with a yellow dome light which is activated and the 4-way flashers also activated. The witness stated that Exh. B is
a list of trees he considered to be dead, prepared in 1997, after performing a road inspection of various State roads,
including Route 44 in Amenia. He testified that the list does not contain any notation of a dead tree at mile marker
2228, the location of the subject accident. Mr. Howard reviewed the dead tree lists he prepared in 1998 (Exh. C)
and 1999 (Exh. D) and neither notes a dead tree at about mile marker 2228 on Route 44. The witness further
testified that the dead trees noted on the tree list are eventually removed by a contractor hired by the State.
           Mr. Howard testified that he is a Volunteer Firefighter in the Town of Amenia and on the morning of
claimant’s accident he heard a call on his radio regarding the accident and went to the scene. He stated that there is
no doubt in his mind that the tree which fell on claimant’s vehicle was dead.
           On cross-examination, Mr. Howard testified that DOT sent him to a class to identify dead trees, however
his recollection of the details of this training were somewhat non-specific.
           It is well settled that the State has a duty to maintain its roadways in a reasonably safe condition and that
duty extends to trees adjacent to the roadway which could reasonably be expected to result in injury or damage to
the users of the roadways (see, Harris v Village of East Hills, 41 NY2d 446; Guido v State of New York, 248 AD2d
592). The duty to “properly inspect and correct [the potential danger] by trimming or removal is essential to proper
maintenance” of trees by the State (Edgett v State of New York, 7 AD2d 570, 574). Liability, however, does not
attach unless the State had actual or constructive notice of the potentially dangerous condition and then failed to take
reasonable measure to correct the condition (see, Leach v Town of Yorktown, 251 AD2d 630). “In order to
constitute constructive notice, a ‘dangerous condition must have been visible and apparent and must have existed for
a sufficient length of time prior to the accident to permit [the] defendant’s employees to discover and remedy it’”
(citation omitted) (Fowle v State of New York, 187 AD2d 698, 699).
           The New York State Court of Appeals stated in Ivancic v Olmstead, 66 NY2d 349, 351:
           “At least as to adjoining landowners, the concept of constructive notice with respect to liability for falling
trees is that there is no duty to consistently and constantly check all trees for nonvisible decay. Rather, the
manifestation of said decay must be readily observable in order to require a landowner to take reasonable steps to
prevent harm. (See, Berkshire Mut. Fire Ins. Co. v State of New York, 9 AD2d 555.)” (see also, Leach v Town of
Yorktown, supra, 251 AD2d 630, supra).

          Here, the testimony of claimant’s expert, Mr. Moran, established that the subject tree trunk showed
outward, visible signs of decay up to three years prior to the claimant’s accident. He testified that, based upon his
inspection, the tree died of Dutch Elm Disease. The visible signs of decay were the peeling bark, the growth of
mushrooms at the base of the tree and the fact that the leaves of the tree would have first turned yellow prematurely
and then not blossomed at all. He opined, without contradiction, that the subject tree showed signs it was dying in
1996 and was dead by 1997. He further testified that all these signs would have been visible from the road by
someone doing a tree inspection. Thus, we find that the subject dead tree of approximately 40 to 50 feet in height
located 13 feet from the edge of the State roadway constituted a dangerous condition of which the State had
constructive notice.
          Mr. Howard, the State’s employee responsible for looking for dead trees, stated that when he arrived at the
scene of the accident he knew the subject tree was dead. He also testified that he had driven along Route 44 since
at least 1997 (see Exh. B) and had not seen any dead trees in the area of the subject tree. However, the Court notes
that Mr. Howard conducted his inspections by himself, as he was driving a vehicle and attempting to view trees on
both sides of the road. It was also established that this tree was located on a curve in the road, presumably requiring
more attention to driving. We do not believe such methodology constitutes a reasonable inspection.
          Based upon the foregoing, we find that the subject tree constituted a dangerous condition of which the State
had constructive notice and failed to take reasonable corrective measures (see, Rinaldi v State of New York, 49
AD2d 361). We further find the State’s negligence in performing tree inspections to be the proximate cause of the
accident. We find the State to be 100% responsible for the subject accident. The Chief Clerk is directed to enter
an interlocutory judgment in favor of claimant and against the defendant, State of New York.
          Upon filing of this decision, the Court will set the matter down for trial on the issue of damages as soon as
practical. Counsel for both sides are hereby directed to contact the Court to establish a conference date regarding
outstanding discovery matters with respect to the issue of damages. Counsel are directed to consult with each other
regarding potential conference dates and to contact the Court regarding same within 30 days subsequent to receipt of
this decision.

                                                                                                February 15, 2002
                                                                                            White Plains, New York

                                                                                    HON. STEPHEN J. MIGNANO
                                                                                     Judge of the Court of Claims

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