There is a common-sense rule on the books in New York which is not commonly known: if your car accident was at least partially caused by the defective design or dangerous condition of the roadway, you may be able to recover damages from the local municipality responsible for maintaining the roadway.

A municipality has the nondelegable duty of maintaining its roads and highways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271). This duty extends to conditions adjacent to the highway, and if the State or governmental subdivision undertakes to provide a paved strip or shoulder alongside the roadway, it must maintain that shoulder in a reasonably safe condition for foreseeable uses, including those uses resulting from a driver's negligence or an emergency (see Bottalico v State of New York, 59 NY2d 302, 305-306; see also, Stiuso v City of New York, 87 NY2d 889, 890-891; see Carollo v Town of Colden, 27 AD3d 1077, 1078). 

That duty includes "an obligation to provide and maintain adequate and proper barriers along its highways" (Gomez v New York State Thruway Auth., 73 NY2d 724, 725).

On the other hand, where the paved road surface is "more than adequate for safe public passage," travel beyond those limits on unimproved land adjacent to the roadway is generally not contemplated or foreseeable and therefore the municipality is under no duty to maintain it for vehicular traffic (see Tomassi v Town of Union, 46 NY2d 91).

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer