West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued January 17, 2013
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant Kelly Pinti brought this action for vehicle damage which occurred when her 2003 Toyota Sequoia struck rocks located on the surface of Interstate-79 near Fairmont, Marion County. I-79 is a public road maintained by Respondent. The Court is of the opinion to deny this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 6:15 p.m. on March 7, 2010. I-79 is a four-lane, paved interstate highway with two lanes of traffic in each direction and a speed limit of 70 miles per hour. At the time of the incident, Claimant was driving past mile marker 139 with four small children in the back of her car. Claimant testified that she was driving at or below the speed limit when she encountered two large rocks in the road, each approximately 2-3 feet wide and 1 ½ feet tall. She testified that she did not have time to avoid the rocks so she attempted, unsuccessfully, to straddle them with her vehicle, which resulted in the left side of her vehicle striking the rocks. Claimant drives this road frequently and could not recall seeing warning signs or rocks in the road before the incident.
      As a result of this incident, Claimant’s vehicle sustained damage to the front and rear left tires and rims in the amount of $1,472.10. Claimant’s insurance declaration sheet indicates that her collision deductible is $2,000.00.
      It is the Claimant’s position that Respondent knew or should have known about the rocks in the road on I-79 which created a hazardous condition to the traveling public and that Respondent was negligent in failing to provide proper warning to the traveling public of a known hazardous condition prior to the incident.
      The position of the Respondent is that it did not have actual or constructive notice of the rocks on I-79 prior to this incident. Norman Cunningham, Transportation Crew Supervisor for Respondent in Marion County, testified that he is familiar with I-79 and stated that at the location of Claimant’s incident the road is on a cut with rock ledges on either side of the interstate. Mr. Cunningham testified that Respondent is aware of the potential for rock falls on I-79 and attempted to warn drivers by erecting “falling rock” signs. Respondent introduced a DOH-12 work order indicating that warning signs were installed on March 31, 2009 along I-79 from mile marker 139 to 157, as well as photographs demonstrating that they were still present in May 2011. Mr. Cunningham testified that rock falls are infrequent in this section of I-79, and that Respondent was not notified about the rocks in question prior to this incident; however, upon receiving notice of the rocks struck by Claimant, Respondent’s crews immediately responded to clear them from the road.
      The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645; 46 S.E.2d 81 (1947). In order to hold Respondent liable for road defects of this type, Claimant must prove that Respondent had actual or constructive notice of the defect and a reasonable amount of time to take corrective action. Pritt v. Dep’t of Highways, 16 Ct. Cl. 8 (1985); Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986). In rock fall claims, this Court has held that the unexplained falling of rocks onto a highway without a positive showing that Respondent knew or should have known of a dangerous condition posing injury to person or property is insufficient to justify an award. Coburn v. Dep’t of Highways, 16 Ct. Cl. 68 (1985). In the instant case, Claimant has not established that Respondent failed to take adequate measures to protect the safety of the traveling public on I-79. Respondent placed “falling rock” signs to warn the traveling public of the potential for rock falls at this location. Although the rocks created a dangerous condition on the road, there is no evidence that Respondent had notice of this hazard. While the Court is sympathetic to the Claimant’s plight, the fact remains that there is insufficient evidence of negligence on the part of Respondent upon which to base an award.
      In accordance with the findings of fact and conclusions of law as stated herein above, it is the Court is of the opinion to and does deny this claim.
      Claim disallowed.

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