Asbury v. Department of Highways

14 Ct. Cl. 45

• Court: West Virginia Court of Claims
• Decided: November 9, 1981
• Docket: CC-81-54
• Status: Published

Opinion

GARDEN, JUDGE:

At about 5:30 p.m. on September 8, 1980, the claimant, Leona Asbury, was operating a 1974 Oldsmobile automobile owned by her husband, Tom Asbury, in a southerly direction on Route 52. Route 52 is a two-lane, paved highway running generally in a north-south direction between Kenova and Prichard, West Virginia. According to the testimony of the claimant, Leona Asbury, a slip had occurred during the spring of 1980, which had partially blocked the southbound lane of Route 52. At the point of the slip, claimant Leona Asbury moved to the left to avoid it, and met a northbound truck owned by the Guepel Construction Co. The truck moved to its right, partially left the road, and, in passing the car operated by Leona Asbury, threw rocks which damaged the windshield of the southbound Oldsmobile, necessitating repairs in a total amount of $383.95.

Leona Asbury, while testifying that the condition in the southbound lane had existed since the spring of 1980, candidly admitted that she had never complained to the respondent about the condition of this particular area of Route 52. Even if a showing of negligence had been demonstrated by claimants, it would appear that an intervening act of negligence on the part of the northbound truck was the proximate cause of the damage to the claimants’ vehicle.

Claim disallowed.