Valerie Park, Infant, by Her Father, Harry Park, and Harrypark, Individually, Plaintiffs-appellees, v. Village of Waverly, New York, Defendant-appellant, 457 F.2d 1139 (2d Cir. 1972)

This is a diversity action arising out of an automobile accident on the River Road, Village of Waverly. Appellee Valerie Park, a girl of fifteen, was a passenger in a car driven by James Coleman which, after meeting and passing a car driven by Glen Baker, struck a concrete culvert headwall on the shoulder of the roadway. Valerie and her father, Harry Park, commenced this action against Coleman, Baker, the owners of the two vehicles, and appellant Village. The cases against the individual defendants were severed and settled. The case against appellant proceeded to trial and resulted in a jury verdict in favor of appellees. The district court denied motions for a directed verdict and for a new trial.

Appellants contend that (1) there "is no proximate legal cause relationship" between the conduct of the Village and appellees' damages, and (2) "Absent prior written notice, the Village is liable only for affirmative negligence, which is not shown." Under New York law this court must take "the view of the proof most favorable to the verdict." Hannan v. Schmitt, 18 A.D.2d 854, 236 N.Y.S.2d 107, 108 (3d Dept.1963).¹ 

Sufficiency of the Evidence

From a review of the record as a whole and viewing the proof in the light most favorable to the plaintiffs, we are satisfied that the case was properly submitted to the jury under appropriate instructions²  and that the jury was justified in finding that the defendant Village was negligent and its negligence was a proximate cause of the damages.

The accident occurred at a sharp unmarked curve on a narrow road, which was maintained and patrolled by the Village. While there was a conflict in the testimony, the jury could properly find that Coleman, traveling at a speed of 30 to 35 miles an hour, was forced to drive partially on the shoulder by reason of the Baker car driving over the center of the highway.³  There were no curve warning or speed limit signs, no center line or shoulder markings, guard rails or guide rails, and no abutment signs or warnings. The shoulder was covered with grass, weeds and brush which obscured the culvert abutment.

There was evidence that a police officer had made a special investigation of the site as the result of a number of prior accidents and had recommended curve warning and speed limit signs and guide rails. A well qualified expert witness testified that the conditions at the site of the accident were not in accord with standard and acceptable highway practices in the area. In particular, the roadway was not properly marked and should have had curve signs and guide rails, and the abutment was improperly obscured by growth, was not properly marked, and was too close to the highway for safety.⁴ 

There was ample evidence to sustain a jury finding that appellant's negligence was a proximate cause of the accident.⁵ Was Prior Written Notice Required?

Section 341-a of the Village Law of the State of New York provides in pertinent part:

"No civil action shall be maintained against the village for damages * * * sustained in consequence of any street, highway, bridge, culvert, * * * being defective, out of repair, unsafe, dangerous or obstructed * * * unless written notice of the * * * condition * * * relating to the particular place, was actually given to the village clerk and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of * * * or the place otherwise made reasonably safe."

No prior written notice was given in this case.

In Doremus v. Incorporated Village of Lynbrook, 18 N.Y.2d 362, 275 N.Y.S.2d 505, 507, 222 N.E.2d 376 (1966) the Court of Appeals concluded that "section 341-a read strictly, as it should be read, refers to physical conditions in the streets or sidewalks and was an effort to exempt the villages from liability for holes and breaks of a kind which do not immediately come to the attention of the village officers unless they are given actual notice thereof." It was held that the statute did not cover a defective stop sign which allegedly caused an automobile accident.

The New York courts have held also that notice is not required where the village has created the defective condition, Hebbard v. Ives, 8 A.D.2d 648, 184 N.Y.S.2d 971 (3rd Dept.1959), or where there are "affirmative acts of negligence" on the part of the village, Overdorf v. Village of Endicott, 7 Misc.2d 883, 166 N.Y.S.2d 514 (Broome Co.Ct.1957).

There was substantial evidence from which the jury could find that appellant had created the defective condition and also that the defects were not of the kind requiring notice under section 341-a.⁶ 

Affirmed.