Jude v. Department of Highways

13 Ct. Cl. 28

Opinion

RULEY, JUDGE:

On September 27, 1978, claimant’s wife was travelling south in claimant’s automobile on Route 49, between Matewan and Thacker, when rocks fell (from a rock wall beside the road) into the road in front of claimant’s car. Mrs. Jude swerved to the left, but was unable to avoid all the rocks. Her left front tire struck one of the rocks, causing a flat and knocking the front end of the car out of alignment. Claimant seeks damages in the amount of $93.24.

The State neither insures nor guarantees the safety of motorists on its highways. Adkins v. Sims, 130 W.Va. 645 (1947). The State must have had actual or constructive notice of the danger posed by a particular rock wall before it can be found negligent. There is no evidence of notice of this particular hazard in this case. Claimant’s wife’s allegations that the area was known for occassional rock falls, even if true, are not specific enough to render the State negligent. They also indicate that she was aware of the possibility of a fall, and the absence of falling rock signs does not make the State liable without convincing evidence of the prior, prolonged existence of such a hazard. Dickinson v. Dept. of Highways, 11 Ct. Cl. 72 (1975). The evidence in this case was not sufficiently convincing. Accordingly, the claim must be denied.

Claim disallowed.