| Volume Number: 29
Category(s): FALLING ROCKS AND ROCKS |
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| Opinion Issued April 5, 2013 | |
| DAVID BROWN | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-12-0183) | |
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Claimant appeared pro se. Andrew F. Tarr, Attorney at Law, for Respondent. |
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| PER CURIAM:
Claimant, David Brown, brought this action for vehicle damage which occurred when his 2007 Ford F-150 struck a series of sharp rocks while traveling along Fields Creek Road in Independence, Preston County. Fields Creek Road 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 7:00 a.m. on March 1, 2012. Claimant testified that while he was driving from his home to make a work related delivery of nuclear medicine he had no choice but to traverse an area of the roadway that had been washed out by a very large rain event the evening before. Claimant stated that the whole county had sustained damage from the two-day storm that caused Claimant’s damage. Due to the storm, the Governor later declared the county to be in a state of emergency. As a result of its contact with the rocks, Claimant’s vehicle sustained damage to its tires in the amount of $260.76. Claimant carried collision insurance with a $1,000.00 deductible amount on the date of the incident. The position of Respondent is that Fields Creek Road is a low priority road, and while Respondent did have constructive notice of the condition of Fields Creek Road, Respondent could not be expected to correct Fields Creek Road when the entire county was inundated with damage from a significant two-day storm. 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 the Respondent liable for road defects of this type, the Claimant must prove that the 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). Here, the Court finds that Respondent did have constructive notice of the condition of Fields Creek Road on the date of the incident and would be ordinarily liable for having such notice and for failing to take corrective action to avoid damage to the traveling public. However, this claim is distinct in that a state of emergency was declared based on the aftermath of the storm which caused the damage. W. Va. Code §15-5-11 grants immunity and exemption to a “duly qualified emergency service worker.” The statute states, in part, that “[n]either the State nor any political subdivision nor agency of the State or political subdivision nor, except in cases of willful misconduct, any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order, rule, regulation or ordinance promulgated pursuant to this article, shall be liable for . . . damage to any property as a result of such activity.” §15-5-11(a). Given this limitation, the Court is of the opinion that Respondent had immunity from property damage claims due to the state of emergency immediately following the two-day storm. Therefore, the Court finds that Respondent was not negligent on the date of the incident and Claimant may not make a recovery. Based on the foregoing, the Court is of the opinion to, and does hereby, deny this claim. Claim disallowed. |
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| Summary: |
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