Bosley v. Division of Highways

18 Ct. Cl. 144

• Court: West Virginia Court of Claims
• Decided: March 14, 1991
• Docket: CC-90-108
• Status: Published

Opinion

PER CURIAM:

Claimant brought this action to recover damages to her vehicle , a 1987 Ford EXP, which occurred on February 6, 1990, when the vehicle struck a hole and/or a metal expansion joint on a bridge. Claimant's vehicle sustained damage to a tire which had to be replaced. The new tire cost $96.99 for which claimant now requests reimbursement.

Claimant testified that she was familiar with U.S. Route 250 in this area and knew that there was a hole in the surface of the road just before the Watson Bridge and a second hole on the bridge which is also a part of U.S. Route 250 in Fairmont, West Virginia. The hole struck was approximately two feet in diameter, and about four to five inches deep, and was just prior to an expansion joint between the road surface and the bridge surface. Claimant was not sure whether the tire was damaged as a result of striking the hole or striking the expansion joint. She was operating her vehicle at approximately thirty-five to forty miles per hour. The holes were filled with water at the time of her accident.

Dwayne Allen Miller, county assistant supervisor for Marion County, testified that records of the respondent reflect that cold mix was placed in the holes in the area of the Watson Street bridge on February 5, 1990. The condition of the expansion joint had been reported to the bridge engineer. He stated that "cold mix is usually just a temporary patch and it doesn't hold up."

The Court is of the opinion that respondent failed to properly maintain this area of U.S. Route 250. Claimant, however, was familiar with the area and failed to take reasonable care to avoid the hazard. The Court finds that under the doctrine of comparative negligence the claimant is 25 % negligent for this incident. Therefore, the Court makes an award in the amount of $72.74.

Award of $72.74.