Cardwell v. Division of Highways

28 Ct. Cl. 41

• Court: West Virginia Court of Claims
• Decided: September 10, 2009
• Docket: CC-09-0108
• Status: Published

Opinion

PER CURIAM:

Claimant brought this action for vehicle damage which occurred when her 2001 Pontiac Grand Am struck rocks on U.S. Route 52 in Bluewell, Mercer County. U.S. Route 52 is a road maintained by respondent. The Court is of the opinion to make an award in this claim for the reasons more fully set forth below.

The incident giving rise to this claim occurred at approximately 8:30 p.m. on January 7, 2009. U.S. Route 52 is a paved three-lane road, with two lanes traveling uphill and one lane traveling downhill. The road has center lines and edge lines, and the speed limit is forty-five miles per hour. The claimant testified that it had been raining for three days. At the time of the incident, the claimant was driving up the hill in the right lane at between thirty-five and forty miles per hour when her vehicle struck rocks in the travel portion of the road. Claimant testified that she travels this road frequently, and she had seen rocks on the road on other occasions. She stated that rocks fall from the hillside onto the side of the road, and every time it rains, the rocks roll onto the roadway. When the claimant returned to the site of the incident to take a photograph, the rocks had been moved onto the side of the road near the hill side. As a result of this incident, claimant’s vehicle sustained damage in the amount of $690.09. Although claimant’s insurance deductible was $250.00, her insurance company required her to pay $60.00 for a replacement tire since her original tire was worn.

The position of the respondent is that it did not have actual or constructive notice of the condition on U.S. Route 52. Michael R. McMillion, Transportation Crew Supervisor for respondent in Mercer County at the time of this incident, testified that U.S. Route 52 is a high priority road in terms of its maintenance. He stated that the berm in this area is between five or six feet wide, and the hill side near the road is between twenty to thirty feet high. Mr. McMillion testified that there are no falling rock signs at this location. The DOH 12, a record of respondent’s work activity, indicates that respondent received several 911 calls regarding various areas in the County where there had been rock slides, tree falls, and ditch lines that needed to be cleaned out. Respondent cleaned up the rocks in this area on January 7, 2009.

The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986).

In the instant case, the Court is of the opinion that respondent had constructive notice of rocks likely to fall at that point on U.S. Route 52. The Court finds that respondent knew that this area is prone to rock falls. However, no warning signs were placed at this location. Thus, the Court finds respondent negligent. Notwithstanding the negligence of respondent, the Court also finds that claimant was negligent in failing to reduce her speed when she was aware that rocks fall at this location. In a comparative negligence jurisdiction, such as West Virginia, the negligence of a claimant can reduce or bar recovery in a claim. Based on the above, the Court finds that the negligence of claimant equals twenty-five (25%) percent of her loss. Since the negligence of claimant is not greater than or equal to the negligence of respondent, claimant may recover seventy-five (75%) percent of the loss sustained. The Court is limited to considering the amount of the deductible ($250.00) in determining the amount of this award. Thus, claimant is entitled to an award in the amount of $187.50.

In accordance with the findings of fact and conclusions of law stated herein above, the Court is of the opinion to and does make an award to claimant in the amount of $187.50.

Award of $187.50.