Willful negligence puts the traveling public at unnecessary risk

To the Editor:

I would like to respond to last week’s article titled “Willsey files highway complaint, warns of danger.”  I appreciate the article and the opportunity to add important information. This is also an opportunity to explain my position regarding notices of highway defects.

I have been repeatedly accused of trying to set up the town for a lawsuit and some may interpret the article as if that was my goal with the Gifford Hollow Road defects. It’s not. I am not creating liability; I am identifying already existing liability and addressing it by suggesting what needs to be done about it over time.

I’m not guessing about these guide rail-related issues. I designed and reviewed guide-rail projects for decades. I participated in regularly offered roadside design classes year after year. I was the go-to guy at Region One Department of Transportation for guide-rail and bridge-rail questions in the design office. I advised professional engineers in these design matters.

I think it is important to understand that when the town clerk and/or the superintendent of highways receives a “Notice of Highway Defect” there is a process mandated byNew York State Town Law that requires the notice be saved by the town clerk in a ledger that describes the defect and its location, and the law very clearly requires that notice is to be saved for five years.

Such notices need to be available for Freedom of Information Law requests so bad actors can be held responsible for accidents resulting from that defect if the defect remains unaddressed.

If the town clerk and the superintendent of highways are not bad actors, liability is addressed to a degree when the defect is acknowledged, and further addressed if any action is taken to address the safety threat in the interim. When the defect is corrected, the liability is fully addressed.

Even if the town can just document that the defect has been recognized and action is being taken, the interim liability until it is corrected can be substantially reduced before the defect is fully corrected.

But taking absolutely no action at all and destroying the records of these notices is negligent and a violation of state Town Law. That was the policy of our last town clerk and is still the policy of our superintendent of highways.

I have six or eight years of photographs at numerous sites that were used to bring highway defects to the attention of the town clerk and superintendent. You can see the ongoing deterioration making these defects even more dangerous year upon year [examples are posted below].



The current town clerk finds no record of these notices even existing prior to her term. In contrast, her actions appear consistent with the law.

As one past example of negligence, the guide-rail system at Woodstock Lake has been the subject of multiple notices over the years. There are multiple missing posts, segments are on the ground and, like all the corrugated rail systems in Berne, the end transitions are not anchored (and unanchored rail transitions present vehicle impalement hazards — even at low speeds).

There are two very dangerous situations that the modern safety mechanisms in your vehicle cannot protect you from: vehicle impalement from unsecured rail terminations and drowning in an overturned car in a water hazard.

That’s why these defects are my priority. Do I expect them to be corrected immediately? No. I would expect a responsible elected official to have the defect evaluated and develop a plan to correct it over time.

The town’s insurance should not have to indemnify the negligent and illegal actions of elected officials.  We have years of photos of various clearly dangerous situations that have been ignored by the superintendent and apparently the associated notices were hidden or destroyed by the illegal actions of the then-town clerk.

This is not only willful negligence that puts the traveling public at unnecessary risk, but also reckless endangerment in my opinion. These two should be investigated by law enforcement before another person dies as a result of their behavior, not after.

Then I am surprised that the county and the state are not interested in this project. I think a guide- rail system at the intersection of Gifford Hollow Road and County Road 1 would probably have to extend onto the county right-of-way to protect traffic on the county road from the non-by passable hazard there. 

Agricultural access will likely have to be moved onto the county right-of-way to accommodate that safer guide-rail system. It is the responsibility of the county to review projects that impact county infrastructure. The county should “notice” this situation.

New York state is never interested in commenting on local issues even though the state provides the Berne highway superintendent with hundreds of thousands of fungible dollars. This money is spent with totally inadequate oversight (in my opinion) and no survey, no design, and no construction inspection.

I have documented years and years of unsafe and poor construction practices that threaten the workers and traveling public and create dangerous long-term highway features funded through CHIPs [Consolidated Local Street and Highway Improvement Program] by the state.

The notice of construction defects for this culvert are significant.

Finally, I would like to note that, from my experience, the Cornell Local Roads Program functions, among legitimate things, as an advocacy group for local highway superintendents, supporting them in doing whatever they want without consequence.

And if the quote attributed to Mr. [David] Orr [director of Cornell’s Local Roads Program] is accurate, that the Manual on Uniform Traffic Control Devices is just a guideline, his opinion is at odds with the state’s departments of transportation and motor vehicles.

That statement enables dangerous behavior and I think The Enterprise needs to get him to address the inaccuracy of his statement or accept the documentation I provide that says it is the law.

If the signs required by law were erected at the Bridge Road debacle, that would have prevented us ending up with a minivan in a deep excavation. 

Examples of other notices are provided.

Joel Willsey 

East Berne

Editor’s note: David Orr said, when reached for a response to the portion of the letter about earlier statements he had made to The Enterprise, that the Manual on Uniform Traffic Control Devices “has some things in there that are called ‘shalls.’ They specifically use the term ‘shall.’ In those cases, [standards] need to be followed. But everything else is either ‘should,’ or ‘may.’ And that’s always one of the challenges you run into. There’s a lot of ‘shoulds.’” 

Regarding the lack of rails at the intersection of Gifford Hollow and Switzkill roads, Orr said, “Whether there’s rail or not actually may depend upon a whole bunch of other factors. Rail is actually the sixth of seven things you would do, and some arguments could be made very easily that it’s actually the last thing you do if the road is a low-volume road, under 100 vehicles a day.” 

Neither Deputy Supervisor Anita Clayton, who was the previous town clerk, nor Highway Superintendent Randy Bashwinger responded to an Enterprise request for comment. 



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