Clevenger v. Division of Highways

22 Ct. Cl. 165

• Court: West Virginia Court of Claims
• Decided: January 27, 1999
• Docket: CC-98-264
• Status: Published

Opinion

PER CURIAM:

The claimant brought this action for water damage to her property which she alleges was caused by negligent road and ditch maintenance on behalf of the respondent in Marion County.

The claimant is the owner of a home in the Sanford Housing addition on Norwood Road (Route 72/5) in the Winfield District, outside Fairmont. The incident giving rise to this claim occurred on June 28, 1998, at approximately 10:00 p.m. The weather had been rainy all evening. The claimant’s home is located below Norwood Road near the intersection with Hoult Road. The evidence adduced at hearing established that on the night in question a large amount of water flowed down from Hoult Road, to Norwood Road and down into the claimant’s basement.

It was the claimant’s position that the respondent failed adequately to maintain and clean the ditch line opposite her home, and that the respondent’s negligence caused the flood damage to her home. The claimant submitted an itemized list of property damage to the basement and repair costs in the amount of $1,539.00. The claimant received a FEMA flood damage payment in the amount of $573.04, leaving her with a net out-of-pocket loss in the approximate amount of $966.00. The claimant’s homeowner’s insurance did not cover any of her loss.

Norwood Road in this location is a low priority in terms of maintenance. The respondent’s normal routine was to complete ditch work on low priority roads once a year. The evidence at the hearing established that flooding was widespread throughout Marion County on the day in question due to unusually heavy rains, and that numerous bridges and culverts washed out. The respondent was in an emergency flood repair status for approximately six weeks thereafter.

The evidence indicates that the road indeed may have been in need of ditching in the location of the claimant’s home. However, there was widespread flooding throughout the county and it appears from the evidence that the heavy rains in the area were the primary cause of the flood damage to the claimant’s home. Even if there had been a ditch which was clear and free-running for water, it does not appear that it would have been able to handle the abundance of water from this particular storm. While sympathetic to the claimant’s position, the Court is of the opinion that there is insufficient evidence of negligence on the part of the respondent which had a proximate causal relationship to the claimant’s damages. Therefore, in view of the foregoing, the Court does hereby deny the claim.

Claim disallowed.