Kennedy v. Division of Highways

25 Ct. Cl. 231

• Court: West Virginia Court of Claims
• Decided: February 8, 2005
• Docket: CC-04-292
• Status: Published

Opinion

PER CURIAM:

Claimant brought this action for damages which occurred when his dog was electrocuted by a power line that had been severed during a mowing project on Comity Route 6/9 in Wyoming County. County Route 6/9 is a road maintained by respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.

The incident giving rise to this claim occurred sometime between 1:30 a.m. and 9:30 a.m. on May 4, 2004. County Route 6/9 is a two-lane highway at the area of the incident involved in this claim. Claimant testified that he had been raccoon hunting with his Red Tick Coon Dog and another dog. Mr. Kennedy had purchased the Red Tick Coon Dog in August 2003 for $1,150.00. At some point the dog caught the scent of a raccoon and chased the animal. Claimant stated that he then lost track of his dog, but having to wake up early the next day to go to work, he decided to go home for the night. Mr. Kennedy stated that raccoon hunting dogs such as his would either come home or find some place that they were familiar with in the morning if they are out hunting. He called a neighbor and asked him to pick the dogs up the next morning. At 9:30 a.m. Mr. Kennedy received a telephone call stating that his dog had been found in Reedy Creek just off of County Route 6/9. Claimant arrived at the scene of the incident shortly thereafter. A friend of claimant’s had attempted to pull the dog out of the creek, but there was a downed power line in Reedy Creek that was still energized so they had to contact American Electric Power Company to come to the scene to deactivate the power line before Mr. Kennedy could recover his dog. Claimant stated that he talked to Mike Hatfield and Wayne Bailey, employees of respondent, who had been out mowing in the area of the incident the day before claimant’s dog was found dead. Mr. Hatfield told claimant that they had been mowing in the area adjacent to the road when a cut tree or bush fell into the power line. Mr. Kennedy was informed that the two men had reported the incident to their office, which was supposed to contact American Electric Power Company. Claimant stated that his dog was pregnant at the time of the accident, but that he did not know how many pups his dog was carrying. He further stated that he had agreed to give the pick of the litter as a stud fee for breeding his dog. Mr. Kennedy stated that a Red Tick Coon Dog pup was valued at $450.00. Claimant also had a tracking system on the dog which cost $185.00. Claimant claims $2,500.00 in damages.

The position of the respondent is that it had done all that was required of it after knocking over a power line adjacent to County Route 6/9 at the site of the claimant’s accident for the date in question.

Mike Hatfield, an equipment operator for the respondent in Wyoming County, testified that on May 3, 2004, he and Wayne Bailey were mowing brush along County Route 6/9. He stated that he was clearing brush in a blind curve so drivers could see past the curve. Mr. Platfield testified that there was a power line amongst the brush that he was cutting that he did not see, and that when he cut the brush it hit the power line. Mr. Hatfield stated that he and Mr. Bailey then went to one of the neighboring houses where they made a telephone call to respondent’s mam office in Pineville to inform them that a power line had been hit and the office needed to notify American Electric Power Company. After calling in the incident, Mr. Hatfield stated that he and Mr. Bailey left the area for the day. When they arrived at their base of operations, they again called respondent’s main office in Pineville to make sure that American Electric Power Company had been called. Mr. Hatfield testified that other than making the telephone call he had not done anything else regarding the incident.

Wayne Bailey, a craft worker II for respondent in Wyoming County, testified that he had been mowing about 100 feet in front of Mr. Hatfield when Mr. Hatfield contacted him using his CB radio. Mr. Bailey stated that he turned around and saw smoke coming from the power pole that the downed power line was connected to. He reiterated the fact that they had informed respondent’s main base of the incident but that after that they had done nothing more. Mr. Bailey stated that in the training he had received in the operation of the equipment he would be using while working for respondent, he had been told that in the case where a power line was hit he was to contact his headquarters and to make sure that everything was taken care of before he leaving the scene.

Oliver Stewart, county administrator for respondent in Wyoming County, stated that he first became aware of the situation regarding a downed power line when a clerk informed him that she had been called by one of the mower operators about it. He stated that he was told American Electric Power Company had been contacted, but he further stated that he did not check with American Electric Power Company himself.

In the instant case, the Court is of the opinion that respondent’s employees were negligent in leaving the area where a live power line was down before a crew arrived to assess the situation. While the employees who accidentally knocked over the power line did act appropriately in contacting theft headquarters about the incident, respondent should have made sure that someone was at the scene so that no one would be injured by this live power line. Thus, the Court finds respondent negligent and claimant may make a recovery for the damages of $ 1,150.00 for his dog, $185.00 for the tracking system and $450.00 for the stud fee, for total of $1,785.00.

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 the claimant in this claim in the amount of $1,785.00.

Award of $1,785.00.