Simmons v. Division of Highways

20 Ct. Cl. 74

• Court: West Virginia Court of Claims
• Decided: January 21, 1994
• Docket: CC-93-64
• Status: Published

Opinion

PER CURIAM:

Claimant, Louise Johnson Griffin Simmons, seeks an award from respondent, Division of Highways, for property damage sustained to her 1988 Lincoln Town Car, when she was driving northbound on U. S. Route 52, in Mercer County, on February 22,1993, and her automobile slid on an area of the pavement covered in ice. Her automobile slid into a rock cliff sustaining damages for which she claims the amount of her deductible, $250.00.

The evidence adduced at the hearing on October 29,1993, established that claimant was returning to her home in Bluefield, W.Va., at approximately 7:30 p.m. As she drove up Coaldale Mountain on U.S. Route 52, reaching the top of the Mountain, her vehicle which slid into the rock cliff on the right side of the highway. The road surface coming up the mountain was dry. There was a sign at the bottom of the mountain “Watch For Ice”, but this sign is located in weeds on the berm of the road. The claimant had driven on this section of U. S. Route 52 approximately two or three times a month during previous years. She had noticed that this section on Coaldale Mountain was wet at this location, but she had not encountered ice previously. Claimant’s vehicle sustained damages in the amount of $5,613.05; however, claimant’s insurance covered all but $250.00 which is the amount of her insurance deductible.

Claimant’s husband, Thomas E. Simmons, testified that he observed the ice on Coaldale Mountain when he came to the scene that evening. He stated that the water has been running for years on this section of highway and he had experienced problems with ice previously.

The respondent established in its evidence that there are underground springs beneath the pavement on U.S. Route 52, at the top of Coaldale Mountain. There is a ditch behind the curb on the sides of the highway to keep surface water from coming onto the pavement. There is also an under drain for the wet weather springs in an attempt to catch the subsurface water and to keep it from coming to the surface of the highway. The under drains have not remedied the problem with water seeping through to the surface of the pavement and causing wet pavement or icy conditions depending upon the weather. There are signs at the foot of the mountain and the sign for northbound traffic states “Watch For Ice on Road” with a sign above that sign depicting a vehicle sliding. This sign is approximately a half mile from the scene of claimant’s accident. There is nothing respondent can do other than completely rebuilding the road to remedy the problem with the wet weather spring.

After reviewing the record in this claim, the Court has determined that respondent was aware of a potentially hazardous condition existing on U.S. Route 52 at the top of Coaldale Mountain. The claimant was not negligent in the manner in which she operated her vehicle on the night of this accident. The signs at the bottom of the mountain suffice to warn drivers a hazard which a reasonable prudent person would anticipate if there was rain or snow. However, on this evening the roads were dry and claimant had no reason to anticipate ice on the top of the mountain on one

particular section of U.S. Route 52. Therefore, the Court has determined that claimant may recover damages in the amount of her deductible, $250.00.

Award of $250.00.