Opn. No. ( 1981 )

Charles H. Clark, Esq. Town Attorney, Canajoharie, New York

You ask several questions regarding the lighting of highways.

First, you ask whether a county may terminate lighting on public highways without advance notice to towns in the county. Under section 328 of the Highway Law the legislative body of a county, subject to the approval of the Commissioner of Transportation, may provide lighting on highways or bridges located in the county outside of cities and villages. The legislative body, in its discretion, may at any time discontinue the lighting of any highway or portion of it or of any bridge (ibid.). There is no requirement that the county give advance notice to the town prior to termination of lighting (ibid.).

You also ask whether towns are authorized to provide lighting on public highways without forming lighting districts. Section 64 (19) of the Town Law authorizes towns to contract for the lighting of improved state highways or county roads, including bridges, located in the town outside of any incorporated villages. The expense of such a contract is a town charge (id., § 64 [22]). A town may, subject to the approval of the Commissioner of Transportation, provide for the lighting of dangerous portions of any road or highway or bridge (Highway Law, § 327). The expense of such lighting is a general town charge (ibid.). The town board, in its discretion, may at any time discontinue the provision of lighting (ibid.). We note that a town may also establish lighting districts (Town Law, Articles 12 and 12-A).

Finally, you ask whether in the event of an accident a person could successfully sue a county or town for terminating lighting of a highway. To have a cause of action for negligence, a duty must be owed by the defendant to the plaintiff (Prosser, Law of Torts, 4th Edition, chapter 9, pp 324-327). Since the provision of lighting by towns and counties is discretionary and may be terminated at any time, there is no actionable duty to provide lighting.

We conclude that a county may terminate the lighting of public highways without advance notice to towns. Towns may provide lighting on public highways as a general town charge. There is no duty for a town or county to provide lighting on public highways.