West Virginia Legislative Claims Commission

Volume Number: 29
Category(s): FLOODING
Opinion Issued February 14, 2013
     Claimants appeared pro se.
     Michael J. Folio, Attorney at Law, for Respondent.
      Claimants, Danny and Linda Plybon, brought this action for property damage which occurred when their home of twenty-seven years flooded as a result of a collapsed culvert along Whites Creek Road near Prichard, Wayne County. Whites Creek Road 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 between the hours of 7:00 p.m. and 8:00 p.m on May 10, 2011. At this time, a large rain event caused water to accumulate along a creek on the boundary of Claimants’ property and rise three feet to Claimants’ basement. Mr. Plybon testified that the culvert collapsed approximately eight months before the rain event that flooded his basement, and that the collapsed culvert impeded the flow of rain water and caused it to pool. Mr. Plybon stated that prior to the flooding event he had contacted Respondent on numerous occasions so that maintenance crews may survey the damage and make necessary repairs to the culvert. On one occasion before the flood, but after the culvert collapse, Respondent placed gabion stones along the sunken portion of the roadway above the culvert as a temporary measure, but Mr. Plybon stated that he pleaded with Respondent’s crew to quickly replace the culvert as a flood was likely imminent. As a result of the May 10, 2011 flood, numerous items of personal property were destroyed in Claimants’ basement. Claimants now ask this Court to make an award in the amount of $6,761.96 for the cost to replace certain items of personal property and a furnace unit. Claimants did not maintain flood insurance on their property at the time of the incident.
      The position of Respondent is that it did not have actual or constructive notice of the condition along the roadway that allegedly caused Claimants’ basement to flood. Furthermore, Respondent asserts that creeks are prone to flooding, and Claimant assumed the risk by living in a home situated next to a creek.
      This Court has held that Respondent Division of Highways has a duty to provide adequate drainage of surface water, and drainage devices must be maintained in a reasonable state of repair. Haught v. Dep’t of Highways, 13 Ct. Cl. 237 (1980). In claims of this nature, the Court will examine whether Respondent negligently failed to protect a Claimant’s property from foreseeable damage. Rogers v. Div. of Highways, 21 Ct. Cl. 97 (1996).
      In the instant case, the Court is finds that Respondent not only had notice of the collapsed culvert, it should have been foreseeable that a large rain event would cause flooding to occur along Claimants’ property. Claimants lived on the same property for twenty-seven years and had never sustained flooding of this magnitude until the culvert at issue collapsed. Therefore, Respondent was negligent in failing to adequately maintain the culvert. At a hearing on this matter, the Court reduced the amount of damages to reflect a total of $5,159.44, because Claimants had inadvertently added the cost of replacing a furnace twice. The Court finds that the reduced amount is fair and reasonable compensation to Claimants.
      It is the opinion of the Court of Claims that Claimant should be awarded the sum of $5,159.44.
      Award of $5,159.44.

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