McCauley v. State

Herlihy, J.

(dissenting). I concur with Reynolds, J., together with the following memorandum.

This unfortunate accident happened on a winter night in northern New York when merely driving on the road created a hazard of unusual risk. The driver and his passengers had traversed the road earlier in the evening and were familiar with the general physical conditions there existing.

The majority have found negligence based upon a general finding of a drop between the road and the shoulder apparently based upon testimony of witnesses that the drop measured from one inch to five inches at various places along the road in the general location where the accident happened. There was testimony the road had been plowed earlier in the evening and the snow pushed two or three feet from the paved portion. Under such existing conditions, a finding of negligence was improper and while each case must be based upon its own particular facts, what this court said in Edwards v. State of New York (5 A D 2d 1033, 1034 [1958]) is appropriate to the present facts as to a drop between the shoulder and the highway proper: “any dangerous or hazardous condition which existed at or near the place of the accident was a result of natural causes, and not something for which the State can be held liable under the rule of reasonable care.”

The facts do not justify the finding of any emergency for which the State might be liable.

The majority’s second basis for negligence has to do with guardrails located on the opposite side of the road from the direction in which the automobile was traveling. The only theory for such finding must be based upon testimony that the said posts were not set in accordance with the specifications • — ■ 10.3 feet instead of 6.3 feet- — and it is assumed, rightly or wrongly, that if the posts had been placed in accordance with the specifications that they would have prevented the accident. It is my understanding that the obligation of the State so far as the construction of barriers is concerned is that they [barriers] be sufficient for the protection of travel generally. The rule is set forth in Countryman v. State of New York (251 App. Div. 509, 513) where the court said: “ There is no general or infallible rule as to the location or strength of barriers. They are to be placed where the way is perilous or where there are unusual or exceptional conditions, and they must be of a kind and so located as to furnish ‘ protection for travel generally. ’ ”

The finding of negligence here — as to guardposts — is unrealistic and attaches an intolerable burden of liability on the State.

There was no proof offered to show the happening of any prior or similar accidents, or in fact any accidents at this location.

I am in accord with the majority that the theory applied by the lower court in dismissing the claims — driving on the shoulder of the road — was not justified, but I am not in accord with the theory [one or more] of negligence now advanced by the majority. To say that a set of facts such as here developed should have been anticipated and was foreseeable so as to constitute actionable negligence is placing a burden on the State that is not reasonable, equitable or in conformity with the well known and recognized rules applicable to the law of negligence.

The judgments should be affirmed.

Bbegan, J. P., Coon and Gibson, JJ., concur in Per Curiam opinion; Heblihy and Reynolds, JJ., dissent and vote to affirm; Reynolds, J., in an opinion in which Heblihy, J., concurs; and Heblihy, J., in a memorandum in which Reynolds, J., concurs.

Judgments reversed, on the law and facts, and judgments directed for the claimants in accordance with the opinion, with costs to appellants.

Settle order on notice.