Thompson v. Division of Highways

21 Ct. Cl. 51

Opinion

PER CURIAM:

Claimant seeks an award of $602.38 from respondent, Division of Highways, for damage to his vehicle, a 1988 Oldsmobile International Supreme.

On December 8, 1994, at 7:30 p.m., claimant was traveling with his wife and daughter on the Tolsia Highway, also known as Route 52, in Wayne County. Claimant was driving approximately 55 miles per hour behind a large truck. The truck swerved to avoid a rock in the road, and before claimant could react, his vehicle struck the rock. Claimant estimated the rock was approximately one foot long and located near the center line. Driving conditions were dark, cloudy, and cold at the time of the accident. However, the roadway was dry. Claimant also testified that he had traveled through this area earlier in the day, and he had not observed any rocks in the road.

As a result of the accident, claimant's vehicle sustained a broken strut and ruptured tire. The damage was covered by the vehicle's insurance, but claimant paid a $100.00 deductible and other expenses not covered by the insurance policy.

Shelby Sharps, a claim investigator for respondent, testified that she conducted an investigation of claimant's accident which revealed very little information. According to Ms. Sharps, she searched police records and road maintenance records in Wayne County, and could not find any reports or information concerning the accident.

It is well established that the unexplained falling of a rock or boulder onto a highway without a positive showing that respondent knew or should have known of the dangerous condition posing injury to person or property is insufficient to justify an award. Hammond v. Dept. of Highways, 11 Ct. Cl. 234 (1977). See also Hatfield v. Dept. of Highways, 15 Ct. Cl. 168 (1984) and Coburn v. Dept. of Highways, 16 Ct. Cl. 68 (1986).

After a careful review of the evidence, the Court finds that claimant has not established negligence on the part of the respondent. Therefore, the Court is of the opinion to and does deny this claim.

Claim disallowed.