Opinion 89-22


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.



STREETS AND HIGHWAYS -- Traffic Signals (responsibility of towns to install and maintain)
TOWNS -- Powers and Duties (responsibility to install traffic signals)

TOWN LAW, §64(16); VEHICLE AND TRAFFIC LAW, §§1651, 1652-a, 1652-b, 1660, 1682, 1684: Where a town has actual or constructive knowledge of hazardous traffic conditions at an intersection of a town highway and a county road located outside a village, the town has a responsibility to study the need for and, if necessary, to install and maintain appropriately designed traffic control devices at the intersection. Once it adopts a traffic safety plan for the intersection, the town also has a responsibility to continually review the plan in light of its actual operation. A town has no similar duty with respect to the intersection of two county roads located outside a village, unless the town constructed, or owns, maintains, or exercises some form of control over the intersection, such as by installing traffic control devices itself.

You ask whether a town is responsible for the design, installation, maintenance and upgrading of traffic signals at an intersection, wholly within a town, between (1) a town highway and a county road and (2) two county roads. You also ask whether a town is responsible for claims arising from "incidents" occurring at each type of intersection.

Towns are authorized to install and maintain traffic signals for the purpose of controlling traffic on streets and highways outside of cities and villages with the cost thereof constituting a town charge (Town Law, §64[16]). Similarly, towns are authorized generally to regulate traffic by means of "traffic-control signals" (see Vehicle and Traffic Law, §154) on highways outside of villages which are not State highways maintained by the State (see Vehicle and Traffic Law, §§1660[a][5], 1684). Towns are also authorized generally to erect "flashing signals" (see Vehicle and Traffic Law, §1113), outside of villages, on or at specified entrances to any county road or town highway designated by the town board a "through highway" (see Vehicle and Traffic Law, §149) or at any intersection, except an intersection where an entering highway is a State highway maintained by the State, designated by the town board a "stop intersection" or "yield intersection" (see Vehicle and Traffic Law §§1660[a][1], 1684). Therefore, under appropriate circumstances, towns are authorized to install and maintain "traffic signals", "traffic control signals" or "flashing signals" at the intersection of a town highway and a county road and at the intersection of two county roads.

As to the general nature of a town's responsibility to install and maintain traffic signals, we note that it has long been established that a municipality is under a "continuing" and "non-delegable" duty to maintain its roads and highways in a reasonably safe condition (see Kiernan v Thompson, 73 NY2d 840, 537 NYS2d 122, 534 NE2d 39 [1988]; Lopes v Rostad, 45 NY2d 617, 412 NYS2d 127, 384 NE2d 673 [1978]). Thus, a municipality has a legal duty to construct and maintain its highways in a reasonably safe condition, taking into account such factors as traffic conditions, terrain and fiscal practicality (see Gutelle v City of New York, 55 NY2d 794, 447 NYS2d 422, 432 NE2d 124 [1981]; Tomassi v Town of Union, 46 NY2d 91, 412 NYS2d 842, 385 NE2d 581 [1978]). The duty includes giving adequate warning, by signs or otherwise, of dangerous conditions in the highway (Atkinson v County of Oneida, 77 AD2d 257, 432 NYS2d 970 [4th Dept 1980]).

A municipality's duty to maintain its highways in a reasonably safe condition is derived from both the common law and statute (see, Lopes, supra). In this regard, we note that Vehicle and Traffic Law, §1682 provides that:

Local authorities in their respective jurisdictions shall place and maintain such traffic-control devices, conforming to the state manual and specifications, as they may deem necessary to indicate and carry out the provisions of this chapter or local traffic ordinances, orders, rules or regulations or to regulate, warn, or guide traffic...

Thus, although towns are not insurers of the safety of persons using their highways (Sanchez v Lipincott, 89 AD2d 372, 455 NYS2d 457 [4th Dept 1982]; see also Atkinson, supra), they are charged with the duty of warning, guiding and regulating traffic, as they deem necessary, by placing and maintaining "traffic control devices" (see Vehicle and Traffic Law, §153) conforming to the State manual and specifications (Sanchez, supra; see also Atkinson, supra; Woodcock v County of Niagara, 52 AD2d 1087, 384 NYS2d 310 [4th Dept 1976]). The duty can be breached where a town has actual or constructive knowledge of a hazardous condition and fails to correct the condition or warn of its existence (see Friedman v State, 67 NY2d 271, 502 NYS 2d 669, 493 NE2d 893 [1986]; Harris v Village of East Hills, 41 NY2d 446, 393 NYS2d 691, 362 NE2d 243 [1977]; Sanchez, supra). Breach of the duty, if the proximate cause of injury, may give rise to liability on the part of a town (see Atkinson, supra).

The liability of a town for negligence in warning, guiding and regulating traffic is, however, circumscribed by the limited immunity accorded highway safety planning functions (see Atkinson, supra; see also Ufnal v Cattaraugus County, 93 AD2d 521, 463 NYS2d 342 [4th Dept 1983]). This limited immunity requires liability for injuries arising out of the operation of a duly executed highway safety plan to be predicated on proof that the plan either evolved without adequate study or lacked a reasonable basis (Alexander v Eldred, 63 NY2d 460, 483 NYS2d 168, 472 NE2d 996 [1984]; Gutelle, supra; Weiss v Fote, 7 NY2d 579, 200 NYS2d 409, 167 NE2d 63 [1960]), or that an existing plan was not reviewed in light of actual operation (see Atkinson v County of Oneida, 59 NY2d 840, 464 NYS2d 747, 451 NE2d 494 [1983]). The rationale for the rule is that:

Lawfully authorized planning by governmental bodies has a unique character deserving of special treatment as regards the extent to which it may give rise to tort liability. It is proper and necessary to hold municipalities and the State liable for injuries arising out of the day-by-day operations of government---for instance, the garden variety injury resulting from the negligent maintenance of a highway---but to submit to a jury the reasonableness of the lawfully authorized deliberations of executive bodies presents a different question. [citations omitted] To accept a jury's verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts (Weiss, supra, at 7 NYS2d 585-6, 200 NYS2d 413).

The rule has been applied in cases seeking recovery against a municipality for the failure to install a traffic control device (see Alexander, supra; Cimino v City of New York, 54 AD2d 843, 388 NYS2d 276 [1st Dept 1976], affd 43 NY2d 966, 404 NYS2d 595, 375 NE2d 775 [1978]), as well as in a case seeking recovery against a municipality for the negligent planning and design of a traffic signal (see Weiss, supra). Thus, although a jury may decide whether a municipality is negligent in the maintenance of its traffic control devices, a jury may not substitute its judgment for that of the municipality regarding the design or planning of its traffic control devices (see Baily v Honda Motor Co. Ltd., 144 AD2d 119, 534 NYS2d 711 [3rd Dept 1988], mot for lv to app den 73 NY2d 705, 539 NYS2d 298, 536 NE2d 627 [1989]).

In order to obtain the benefit of the limited immunity accorded highway planning functions, a municipality, upon being made aware of a dangerous traffic condition, must undertake reasonable study thereof with an eye toward alleviating the danger, and after implementing a traffic plan, must continually review that plan in light of its actual operation (see Friedman, supra). This limited immunity, however, does not relieve a town of its duty to warn, guide and regulate traffic on its own roads by placing and maintaining appropriately designed traffic control devices (see Vehicle and Traffic Law, §1682; see also Sanchez, supra).

Based on the duty of towns to warn, guide and regulate traffic on their own roads by placing and maintaining traffic control devices conforming to the State manual and specifications (Vehicle and Traffic Law, §1682; see also Sanchez, supra) and the limited immunity accorded highway safety planning functions (see, e.g. Friedman, supra), we believe that, where a town has actual or constructive knowledge of hazardous traffic conditions at an intersection of a town highway and a county road located outside of a village, the town has a responsibility to study the need for and, if necessary, to exercise its authority under the Town Law and Vehicle and Traffic Law by installing and maintaining appropriately designed traffic control devices at the intersection. Once it adopts a traffic safety plan for the intersection, the town also has a responsibility to continue to review the plan in light of its actual operation.

It would appear, however, that, generally, a town has no duty to users of a county road which the town did not construct and does not own, maintain or control in any way (see Di Stefano v Donahue 124 AD2d 322, 508 NYS2d 104 [3rd Dept 1986]; Ossmer v Bates, 97 AD2d 871, 469 NYS2d 273 [3rd Dept 1983]; Burcroft v County of Orleans, 114 Misc 2d 16, 450 NYS2d 651 [1982]), nor an independent affirmative duty to the county with respect to such road, even though various statutes give towns rights with respect to county roads (see Di Stefano, supra). Thus, we further believe that a town has no duty to ascertain the need for, or to install and maintain appropriately designed traffic control devices at an intersection of two county roads located outside of a village, unless the town constructed or owns, maintains or exercises some form of control over the intersection. The circumstances under which a town would be held to have exercised sufficient control over an intersection of two county roads to acquire a duty to users of those roads are not entirely clear. However, should a town install traffic control devices at the intersection, we believe it likely that the town would be held to have exercised sufficient control over the intersection to acquire a duty to maintain and, if necessary, upgrade those devices.

Finally, we note that Vehicle and Traffic Law, §1652-a provides that, except in Suffolk County, a county highway superintendent in a county having a functioning traffic engineering unit, when authorized by the county governing board, may, inter alia, install and maintain traffic signals on any road, highway or street in a city, town or village, except a State highway maintained by the State, so long as city, town or village in which the signal is to be located consents thereto by written agreement with the county board (see 1987 Opns St Comp No. 87-52, p 79). Any such agreement must specify the authority and responsibility of the county highway superintendent, as well as any apportionment of costs. Vehicle and Traffic Law, §1652-b contains similar provisions applicable to Suffolk County.

With respect to whether an agreement pursuant to Vehicle and Traffic Law, §§1652-a or 1652-b would shift a town's duty with respect to traffic signals to the county, we note that, as previously indicated, a town's duty with respect to traffic signals is "non-delegable" (see Lopes, supra). This means that, generally, a town may not shift the responsibility for performing that duty by contract (see Lopes, supra; Pettengill v City of Yonkers, 116 NY 560 [1889]), even where the contract is specifically authorized by statute (Neddo v State, 194 Misc 379, 85 NYS2d 54, affd 275 AD 492, 90 NYS2d 650, affd 300 NY 533, 89 NE2d 253). However, in Magliano v Merckling, 99 AD2d 825, 472 NYS2d 419 (2nd Dept 1984), the court suggested in dicta that, by agreement pursuant to Vehicle and Traffic Law, §1652-b, a town could shift to the county its responsibility to maintain a traffic signal because section 1652-b specifically authorizes the agreement between the town and county to specify the county highway superintendent's "responsibility". Based on Magliano, supra, therefore, it may be possible for an agreement pursuant to Vehicle and Traffic Law, §§1652-a or 1652-b to shift a town's responsibility to install and maintain traffic signals to the county.

May 22, 1989
Mark A. Posner Esq., First Deputy Town Attorney
Town of Clarkstown