Town Only Has A"Qualified Immunity" Not "Absolute Immunity" in Accident Case by Motorist Who Drove Through Guardrail

Case: Madden v. Town of Greene

Court: Supreme Court, Chenango County, New York

Date: 6/29/12

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury attorney)

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Facts: This driver had an accident when his car went off the road. He sued the Town of Greene, claiming that its guardrail was defectively designed. No hint is given as to the injuries plaintiff suffered in this one-car accident.

There is much back and forth in this decision about whether the Town is entitled to absolute immunity from accident claims such as this. The Town, of course claims that it is. The Court finds that the Town only has "qualified" immunity, and may be held liable in negligence.

However, the court did lay out the hard road of proof that this accident victim would have to travel to prove his case: that the Town breached a duty to upgrade the guard rail or that the guard rail was substandard when installed. For this accident victim to prove that the Town had a duty to upgrade the rail, he must show that accidents previously occurred there, or that the road had been reconstructed.

Held: Plaintiff's claim is timely. His time to sue began to run at the time of his accident.

Defective highway design claims are not discretionary actions so as to allow the municipality absolute immunity. The defense is denied summary judgment on its claim of absolute immunity from being sued.

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