Marcum v. Division of Highways

21 Ct. Cl. 46

• Court: West Virginia Court of Claims
• Decided: November 13, 1995
• Docket: CC-95-106
• Status: Published

Opinion

PER CURIAM:

Claimant, Thomas W. Marcum, seeks an award of $4,936.13 from respondent, Division of Highways, for damage to his vehicle and lost income resulting from the vehicles incapacity. The damage occurred on February 10, 1995, at approximately 10:45 a.m., in the northbound lane of U.S. Route 119 near the entrance to respondent's Mingo county maintenance headquarters. At this time the road surface was et and the skies were overcast. According to Mr. Marcum, he was driving his 1984 Ford F-700 flatbed truck 55 miles per hour, and while passing a tractor-trailer truck he observed a rock in his lane. The road was approximately 18 inches in diameter and 50 feet ahead of Mr. Marcum's vehicle. Mr. Marcum testified that he was unable to avoid the rock because the tractor-trailer truck was to the right of his vehicle and a passenger car was close behind his vehicle. Mr. Marcum's vehicle made loud noises when it struck the rock. Shortly thereafter, Mr. Marcum drove his vehicle off the road to contact the Division of Highways and determine what damage occurred. As a result of the incident, the vehicle sustained damage to the tie rod, two speed unit, transmission, and tail lights. Mr. Marcum testified that he had full coverage insurance on his vehicle with a $500.00 deductible.

Charles Maynard testified that he was traveling along U.S. Route 119 during the early part of February 1995. According to Mr. Maynard, he observed a large rock fall from a State road truck near the location where Mr. Marcum's accident occurred. In addition, Mr. Maynard indicated that the truck's tail gate was not completely closed.

Barry Mullins, the Mingo County supervisor for the respondent testified that he is responsible for maintaining the roads in Mingo County. Mr. Mullins described U.S. Route 119 as a first priority road, and he acknowledged that it passes close to the county maintenance headquarters. According to Mr. Mullins' work records, Division of Highways trucks were carrying "shot rock" on February 10, 1995. Moreover, these rocks were similar in size to the rock struck by Mr. Marcum's vehicle.

Respondent owes a duty to motorists to exercise reasonable care and diligence under all the circumstances. Hobbs v. Dept. of Highways, 13 Ct. Cl. 27 (1979). The evidence in this claim indicates that respondent was hauling rocks on the day of the accident which were similar to the one struck by Mr. Marcum's vehicle. The record also indicates that the rock fell from one of respondent's trucks due to an improperly closed tail gate. Therefore, it is the opinion of this Court that respondent was negligent. After reviewing the record with respect to damages, the Court finds that the evidence related to lost income resulting from the vehicle's incapacity are speculative. Accordingly, the Court makes an award in the amount of claimant's insurance deductible, $500.00.

Award of $500.00.