Cunningham v. Department of Highways

16 Ct. Cl. 114

• Court: West Virginia Court of Claims
• Decided: November 24, 1986
• Docket: CC-86-11-3
• Status: Published

Opinion

PER CURIAM:

On February 28, 1986, claimant William K. Cunningham was operating his 1984 Mercury Lynx in a westerly direction on Route 64 at the Dunbar overpass when he encountered respondent's crew patching potholes at the top of the grade. The crew was utilizing aggregate. As a result, claimant's vehicle's windshield was struck by some of the aggregate and damaged in the amount of $112.92. The claimant, William K. Cunningham, originally filed this claim in his own name; however, the record reflects that his wife, Tresea Cunningham, is co-owner of the vehicle in question. The Court, on its own motion, amended the style of the claim to include Tresea Cunningham, as a party claimant.

The claimant testified that it was between 3:00 and 4:00 in the afternoon when this incident occurred. It was a clear day, and he was proceeding in the direction of Huntington. His vehicle was in the right lane and there were several vehicles in front of his. The vehicle two or three car lengths ahead of claimant's vehicle ran over the aggregate. The claimant assumed that gravel or some other substance from the aggregate struck the claimant's vehicle. He did not notice the damage to the windshield of the vehicle until the morning following this incident.

There is nothing in the record of the instant case to show that the respondent had notice of a dangerous condition in the highway, nor was there any evidence that the existence of the aggregate was the proximate cause of the damage to the automobile. A finding of negligence would require speculation on the part of the Court. Therefore, the claim must be denied.

Claim disallowed.