Bell v. Division of Highways

28 Ct. Cl. 125

• Court: West Virginia Court of Claims
• Decided: July 9, 2010
• Docket: CC-09-0366
• Status: Published

Opinion

PER CURIAM:

Claimant brought this action against Respondent for flood damage to a rental property that he formerly owned at 580 Whittington Road, Charleston, Kanawha County. The Court is of the opinion to deny the claim for the reasons more fully stated below.

In My of2008, Claimant’s rental home was flooded during a storm event. Claimant alleges that Respondent had cut down trees or cleaned out the ditch lines, which caused the flooding on his rental property.²¹ The documentation submitted to Claimant’s insurance company indicates that the damage to the house was caused by a storm. Although the Claimant submitted an invoice for the cost to perform the repairs, the majority of the items listed are not related to water damage. Claimant did not specify the cost to repair the items that are related to this incident. Further, Claimant indicated that he no longer owns the property and did not perform the repairs.

Respondent contends that it is not responsible for the flooding which occurred at 580 Whittington Road. Mike Welch, Crew Supervisor for Respondent, testified that he is familiar with the work that Respondent performed in July of 2008 near Whittington Road. Mr. Welch stated that Respondent cleaned out a ditch line and removed small trees that were blocking the ditch line.

In the instant case, the Claimant has failed to demonstrate that Respondent was negligent in its maintenance activities near Whittington Road. Claimant is unaware of whether the flooding was the result of Respondent’s activities or a storm. Since Claimant has failed to establish that Respondent’s negligence was the proximate cause of the damages sustained to the property at

580 Whittington Road, the claim must be denied. Even if the Claimant had established the Respondent was negligent, Claimant has not proven his damages. In Syllabus Point 4 of Konchesky v. S.J. Groves and Sons Co., 135 S.E.2d 299 (W.Va. 1964), the Supreme Court of Appeals of West Virginia held, “Damages cannot be awarded for injury done to property where the evidence is speculative, conjectural or uncertain as to the amount of damages.”

In accordance with the findings of fact and conclusions of law as stated herein, the Court is of the opinion to and does deny this claim.

Claim disallowed.

²¹

Q. Do you know what kind of work they were doing, Department of Highways?

A. No.

Q. Do you know what they did?

A. No. The only thing I can tell you is what my sister told me and the neighbors and the guy that rented from me, was that they were clearing out maybe a ditch and cut trees down.