Adkins v. Department of Highways

13 Ct. Cl. 307

• Court: West Virginia Court of Claims
• Decided: December 3, 1980
• Docket: CC-80-207
• Status: Published

Opinion

GARDEN, JUDGE:

On an unspecified date, the claimant was operating his 1969 Camaro automobile in a westerly direction on Will’s Creek, a State maintained secondary route near Elkview, West Virginia, when the roof of his car was struck by a large boulder which apparently rolled from the hillside adjacent to this two-lane asphalt road. It was estimated that this boulder weighed from 200 to 250 pounds. As a result, claimant’s car, which had a value of $800.00, was demolished, and claimant received a neck injury. He was accompanied by his daughter and granddaughter, neither of whom was injured.

Claimant stated that he was travelling at a speed of 25 miles per hour, and was very familiar with the road as a result of travelling it on a daily basis. He indicated that he had never before experienced falling rocks in the area, but assumed that the respondent, who had been doing some grading in the area, had loosened the boulder, which later fell on the roof of his car.

This Court has previously held that evidence of an unexplained falling of a rock onto a highway without a positive showing that the Department of Highways knew or should have known of a dangerous condition or could have anticipated injury to personal property is insufficient to justify an award. Hammond v. Department of Highways, 11 Ct. Cl. 234 (1977).

By reason of the foregoing, the requested award is disallowed.

Claim disallowed.