Looking at the tree, it was clearly rotted and ready to fall. In New York, each municipality has a non-delegable duty to have an inspection plan, (a plan that should be followed up on, too...), consisting of, well...inspecting the roadways to see if there are any dangerous trees nearby that could crash on cars or pedestrians.
Part of preparing any case for trial in such a case involves questioning the employees of the municipality, (here, the Town of Malone), of what they saw about the trees, or what they knew about the inspection program, if any. Invariably -- AND I MEAN INVARIABLY -- a current employee never has seen a dangerous condition exist and any inspection procedure was the responsibility of someone else. Naturally, the reason for such "know-nothing" testimony is that the employee does not want to lose their job, or "get in trouble". Thus, integrity is abandoned and the paycheck is secure. Of course, this culture of "I didn't see anything", or "that is not my job" is based upon dysfunctional political systems, and dysfunctional departments. In Malone, the Highway Superindendant is elected. The employees serve at the pleasure of the Town Board.
I was fortunate enough, however, in my particular case to have the unique situation of being able to take the testimony of the Highway Superindendant who was at the helm when my client was injured but who had since retired. He was safely collecting retirement, he was not in danger of losing his election or being criticized by the Town Board, and, I guess, he could now be truthful. Here's a sample:
"Question [Joe Nichols]: Sir, did you periodically drive ---when you were a highway superintendent, did you periodically drive the town roads to check on their condition?
Answer [Highway Superindendent]: Why--they used to have a road inspection every spring with the supervisor and councilmen and that sort of stuff. And they used to go down and ride around the roads, and all they done was talk about politics while they were there, so that didn't do no good. So, after that was done, they all went back to the garge and went home. So, as far as that inspection, that was the only final inspection. And we haven't had that in -- I don't know how many years now -- four or five years maybe. We--they just done away with it."
Because of the "I see nothing" mentality in this case, our client suffered fractures to her spine. And this particular tree at issue should have been trimmed, because it was a dead tree. Moreover, the town had the right and the duty to trim it. But this is what happened:
Testimony of Highway Superintendent: "I told him, [the owner of the field adjacent to the right of way with the dead trees] that the trees look like they should all be taken out, and what I offered to do was take them all out and take the stumps and all out.
Question [Joe Nichols]: What did he say to you after you offered that?
Answer: He said, "No, them are shade for my cows."
Question: Now after that conversation with [the owner of the field] did you ever talk to the town attorney about what your rights or your obligations were as town highway superintendent in the removal of those trees?
Answer: No.
Question: Why?
Answer: Just never did, just let it go, I guess...What's the sense of getting into an argument with somebody, might as well forget about it.
Question: All right. So, one of the reasons you didn't want to do it was you didn't want to get into an argument?
Answer: That is correct. What's the sense in getting into it?
Question: Did there come a time that you learned that [the injured person] had been involved in an incident where one of those trees along the Junction Road fell onto her car?
Answer: I didn't know who it was that the tree fell on the car...Yeah, I heard it afterwards."
No comments:
Post a Comment