Manning v. Department of Highways

13 Ct. Cl. 275

• Court: West Virginia Court of Claims
• Decided: October 23, 1980
• Docket: CC-79-589
• Status: Published

Opinion

WALLACE, JUDGE:

On May 13, 1979, the claimant was proceeding to work at the Sioux Coal Company in Itmann, West Virginia. It was dark and somewhat hazy, but the road was dry. The claimant was traveling at approximately 45-50 miles per hour on Route 54 south of Lester, West Virginia, at about 11:15 p.m. Suddenly, his 1970 Ford Maverick automobile struck some rocks in the roadway in an area known as Jenny’s Gap. The claimant lost control of his vehicle, and veered to the left-hand side of the road, hit a guardrail, and rolled down the bank. As a result of the accident, the claimant sustained personal injuries for which he was treated and released that evening at Raleigh General Hospital. He missed two weeks work because of the injuries, and the automobile was a total loss. Claimant seeks to recover for the medical expenses which he incurred, his lost wages, and damage to his automobile.

Roy Douglas McDaniel, Sr., testified that he had driven through the area where claimant’s accident occurred at about 6:00 p.m. on his way to Mullens, West Virginia, and on his return trip at about 8:10 p.m., he noticed the rocks in the road in the opposite lane of travel. Mr. McDaniel indicated that he saw several medium-sized rocks and three large rocks in the lane in which claimant later encountered rocks in the road.

Jennings Martin, respondent’s supervisor for Raleigh County, testified that, according to the records of the respondent, there had been no rock slides in the area of the accident of which the respondent had been notified either prior to, at the time of the accident, or later.

Jerry Paul Mitchell, Sr., a deputy sheriff with the Raleigh County Sheriffs Department, testified that he patrolled Route 54 in that area every day, and on the day of the accident, the road was wet. Also, the following testimony was elicited:

“Q. Have you ever seen any other rock falls in that area on State Route 54 from—

A. Nothing like that.

Q. When you say ‘nothing like that’—

A. I mean you might see small gravel washed down from the rain but that’s about it.”

A careful review of the facts as established by the record in this case indicates to the Court that the respondent was not negligent in its maintenance of Route 54. This particular section of road was not known to be one where falling rocks, of the size which were encountered by the claimant, usually fell.

The law of West Virginia is well established that the State is neither an insurer nor a guarantor of the safety of persons travelling on its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947).

The record in this claim does not establish negligence on the part of the respondent. Accordingly, the Court disallows the claim.

Claim disallowed.