Parsons v. Department of Highways

14 Ct. Cl. 81

• Court: West Virginia Court of Claims
• Decided: November 25, 1981
• Docket: CC-81-162
• Status: Published

Opinion

WALLACE, JUDGE:

On May 8, 1981, the claimant was operating his 1981 Subaru Brat truck on a highway maintained by the respondent between Cass and Stony Bottom in Pocahontas County, West Virginia. It was mid-afternoon in nice weather, and the respondent’s crew was engaged in clearing brush and timber from its right of way, using a mulching machine in the operation. As a result, a certain amount of debris and cuttings were left on the highway. The respondent’s crew directed the claimant to proceed through the debris-covered area, which was about Vz mile in length. The debris covered both lanes, and a small piece of tree cutting punctured one of the tires on the claimant’s vehicle. The piece of cutting was introduced into evidence, and it measured about 2 1/2 inches in length and less than 1/4 inch in diameter.

During a project such as the clearing of brush and timber, it is inevitable that a certain amount of debris will remain on the highway. The small particle of wood that punctured claimant’s tire, which cost $56.65 to replace, should have been equally observable to the claimant and the employees of the respondent. The Court, being of the opinion that the claimant has failed to establish negligence on the part of the respondent, disallows this claim.

Claim disallowed.