Gresham v. Division of Highways

22 Ct. Cl. 7

• Court: West Virginia Court of Claims
• Decided: August 4, 1997
• Docket: CC-96-466
• Status: Published

Opinion

PER CURIAM:

Claimants brought this action for damage to their 1996 Mitsubishi Galant which occurred on or about July 11, 1996, on Interstate 77. For reasons stated below, the Court makes an award of $250.00, the amount of claimants’ insurance deductible.

The evidence indicates that David Gresham was driving southbound in the left-hand lane on 1-77, between the Pocatalico and Tupper’s Creek exits, when his vehicle struck a center-lane reflector marker that had become dislodged from the highway pavement. Mr. Gresham testified that he was traveling at approximately 65 miles per hour and that the marker was lying on the pavement about two or three feet from the center line in his lane of travel. It was between 6:00 and 7:00 p.m., and there was plenty of daylight. The claimant swerved to the left but was unable to avoid driving over the marker with his vehicle’s right rear wheel, resulting in a flat tire and bent rim.

The claimant changed the tire, returned to the scene, and retrieved the lane reflector, which was admitted into evidence as Claimant’s Exhibit No. 5. The claimant further testified that there were several other holes in the road surface where other lane reflector markers had apparently become dislodged.

Ronald Burdette, respondent’s equipment operator in charge of maintenance on 1-77 from Fairplain to Westmoreland, testified that the center lane reflectors frequently become dislodged as a result of heavy traffic on the highway and deterioration of the blacktop. He stated that respondent’s road crews make repairs with cold mix.

The general rule in West Virginia is that the State is not a guarantor or insurer of the safety of motorists upon the state’s roads and highways. The presence of debris on the road, without actual or constructive notice to the respondent and a reasonable opportunity to remedy the hazard, normally will not substantiate a finding of liability on the part of the respondent. However, the Court is of the opinion that respondent had reason to know of the propensity for these lane markers to become dislodged, especially considering its knowledge of the heavy volume of traffic on 1-77. The Court, therefore, is of the opinion that an award should be made.

Although the claimants submitted bills for repairs totaling $348.13, claimants had full insurance coverage with a $250.00 deductible. Accordingly, Court makes an award of $250.00.

Award of $250.00.