West Virginia Legislative Claims Commission

Volume Number: 29
Category(s): BERMS
Opinion Issued October 26, 2011
     Claimants appeared pro se.
     C. Brian Matko, Attorney at Law, for Respondent.
      Claimant John Houck brought this action for vehicle damage which occurred to Claimant Katherine Seibel’s 2003 Dodge Caravan when it struck rocks near the edge of the road on County Route 4/1, locally designated Ben Speck Road, in Hedgesville, Berkeley County. County Route 4/1 is a public road maintained by Respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 4:20 p.m. on March 13, 2011. At the location of the incident, County Route 4/1 is an unmarked two-lane road with one lane of traffic in either direction, and a speed limit of 35 miles per hour. On the northwest side of County Route 4/1 there was a number of large sharp rocks, approximately nine (9) feet from the center of the road. Claimant John Houck was driving his daughter’s van 20-25 miles per hour southwest on Route 4/1 when a vehicle approached him from the opposite direction in the middle of the road. Houck testified that the oncoming car forced him slightly off the roadway, where Seibel’s van struck the pile of rocks, approximately six inches off the blacktop and twelve inches high. Houck testified that prior to the incident he had reported the rocks to the Respondent, but was informed by Respondent that the air compressor necessary to remove the rocks was broken, and, therefore, the rocks could not be moved. The photographs introduced at the hearing of this matter depict the pile of rocks marked by a white reflective warning pole, which Claimant Houck testified was not present on the day of his accident. As a result of this incident, Claimants’ vehicle sustained damage to a rear passenger tire and rim in the amount of $158.95. Claimants’ insurance declaration sheet indicates that their collision deductible is $500.00.
      It is the Claimants’ position that Respondent knew about the rocks that were dangerously close to the edge of the road on County Route 4/1, which created a hazardous condition to the traveling public, and that Respondent was negligent in failing to maintain properly County Route 4/1prior to the incident.
      The position of the Respondent is that it did not have actual or constructive notice of the rocks next to the road on County Route 4/1 at the time of the incident. Ronald Allen, Administrator for Respondent in Berkeley County, testified that he was familiar with the rocks on the shoulder of County Route 4/1, which he described as a highly traveled, secondary road. Allen stated that prior to this incident there were plans to remove the rocks from the side of the road, but because there is only one hammer to be used statewide there are higher priorities for its uses. Allen testified that the rocks at issue are located within the State’s 30 foot right-of-way; however, a vehicle being driven within its lane on the pavement would not strike the rocks.
      It is a well established principle that the State is neither an insurer nor a guarantor of the safety of motorists upon its roads and highways. Adkins v. Sims, 130 W.Va. 645; 46 S.E.2d 81 (1947). The Court has consistently held that the unexplained falling of a rock or rock debris on the road surface is insufficient to justify an award. Mitchell v. Div. of Highways, 21 Ct. Cl. 91 (1996); Hammond v. Dep’t of Highways, 11 Ct. Cl. 234 (1977). In order to establish liability on behalf of Respondent, the evidence must establish that Respondent had notice of the dangerous condition posing a threat of injury to property and a reasonable amount of time to take suitable action to protect motorists. Alkire v. Div. of Highways, 21 Ct. Cl. 179 (1997).
      In the instant case, the Court is of the opinion that Respondent had, at the least, constructive notice of the dangerous rocks next to road on County Route 4/1. Since the rocks were located within the Respondent’s right-of-way, and dangerously near the edge of a heavily traveled road, creating a hazard to the traveling public, the Court finds Respondent negligent.
      In view of the foregoing, it is the opinion of the Court of Claims that the Claimants should be awarded the sum of $158.95.
      Award of $158.95.

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