Ferguson v. SheahanFerguson v. Sheahan
Spain, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered August 28, 2009 in Tompkins County, which denied a motion by defendant Town of Ithaca for summary judgment dismissing the complaints.
These consolidated personal injury actions arise out of an
Plaintiffs thereafter commenced these actions alleging, as relevant here, that the Town, as owner of the portion of Sand Bank Road where the accident occurred, breached its duty to safely maintain the road and that such negligence caused or contributed to plaintiffs’ injuries. The Town moved for summary judgment and, finding that plaintiffs raised material questions of fact regarding the adequacy of the roadside barriers and signs near the location of the accident, Supreme Court denied the motion. On the Town‘s appeal, we now affirm.
“Municipalities owe a nondelegable duty to the public to construct and maintain their roads in a reasonably safe condition” (Temple v Chenango County, 228 AD2d 938, 938 [1996] [citations omitted]; see Madden v Town of Greene, 64 AD3d 1117, 1119 [2009]). This includes a duty to provide and maintain adequate and proper barriers or guide rails where appropriate (see Gomez v New York State Thruway Auth., 73 NY2d 724, 725 [1988]; Popolizio v County of Schenectady, 62 AD3d 1181, 1182 [2009]; McDonald v State of New York, 307 AD2d 687, 689 [2003]) and a duty to properly maintain curves and erect adequate warning signs (see Levine v New York State Thruway Auth., 52 AD3d 975, 976 [2008]; Duger v Estate of Carey, 295 AD2d 878, 878 [2002]). However, “no liability will attach unless thе ascribed negligence of the [municipality] . . . is the proximate cause of the accident” (Sherman v County of Cortland, 18 AD3d 908, 910 [2005], lv denied 5 NY3d 713 [2005], quoting Duger v Estate of Carey, 295 AD2d at 879).
In meeting its initial burden, the Town relied on Sheahаn‘s deposition testimony where he admits that he was barefoot, listening to loud music and in the process of putting on his seatbelt moments before the accident, and that he never saw the 10-miles-per-hour warning sign before entering the curve. The Town also submitted the deposition of its Highway Superintendent, who testified that the earthen berm was created to prevent cars from going into the gorge and was maintained by the Town, and the affidavit and report of George Ruotolo, an expert in accident reconstruction. Ruotolo opined that the Bronco was going between 23 and 28 miles per hour at the start of the skid and, given the road сonditions, this speed was unreasonably high for the curve. Ruotolo concluded that the sole cause of the accident was Sheahan‘s inattention and excessive speed and that, but for that conduct, the earthen berm would have been an effective barrier.
In response to the Town‘s motion, plaintiffs prоffered the affidavit of John Serth, a licensed professional engineer specializing in accident reconstruction, who opined that the guide rail was nоt long enough to adequately protect motorists from the gorge and that the Bronco‘s speed was not unexpected, given the unposted speed zоne and the suddenness of the curve. He also disagreed with Ruotolo‘s findings that the earthen berm was an effective barrier, noting that the sloped side of the berm bеcame a ramp that effectively vaulted the Bronco into the
The Town argues that its failure to install a guide rail at the point of the accident is not actionable because there was no evidence of another аccident where a vehicle went over the berm and into the gorge. The Town‘s Highway Superintendent, however, acknowledged that the berm was designed to prevent vehicles from entering the gorge. Further, he acknowledged that there had been more than five accidents at the curve, including one within a day or two of the instant accident in which a truck had gone over the berm but not into the gorge. These prior instances where vehicles failed to negotiate the curvе, combined with the inherently dangerous roadside condition posited by a 150-foot-deep gorge, are ample evidence that the curve presented a danger to motorists (see Hill v Town of Reading, 18 AD3d at 915-916).
The Town also contends that it is entitled to summary judgment because the sole cause of the accident was Sheahan‘s negligence. Although it is uncontroverted that Sheahan was distracted at the time of the accident, plaintiffs successfully raised unresolved issues of fact concеrning whether plaintiffs’ injuries were caused or aggravated by the earthen berm, the absence of a guide rail and/or the lack of adequate warning signs (see Hill v Town of Reading, 18 AD3d at 916; Holmes v City of Elmira, 251 AD2d 844, 845-846 [1998]; Temple v Chenango County, 228 AD2d at 940).
Cardona, P.J., Peters, Stein and Garry, JJ., concur. Ordered that the order is affirmed, with one bill of costs.