West Virginia Legislative Claims Commission

Volume Number: 30
Opinion Issued December 26, 2013
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant, Brian Burkhammer, brought this action to recover damages which occurred when his 1985 Dodge Omni struck rocks along W. Va. Route 19 near Weston, Lewis County. W. Va. Route 19 is a public road maintained by Respondent. The Court is of the opinion to grant an award in this claim for reasons more fully stated below.
      The facts giving rise to this claim occurred at approximately 2:30 a.m. on July 31, 2012. Claimant testified that while he was transporting a friend home from work he encountered rocks in the travel portion of the roadway. Claimant stated that the conditions on the night of the incident were clear and visibility good. Nevertheless, while returning from his friend’s home, Claimant stated that he struck the rocks, which had apparently fallen from a high wall along the shoulder of the southbound lane. Claimant submitted photographs of the embankment to the Court, and the Court noted that there was a mesh screen along the embankment which was designed to prevent rocks from falling onto the roadway. As a result of its contact with the rocks, Claimant’s vehicle sustained damage to its muffler, exhaust pipe, and brakes in the amount of $356.52. Claimant carried liability insurance only on his vehicle at the time of the incident.
      Respondent argued that it had neither actual nor constructive notice of the condition along W. Va. Route 19 on the date of the incident. Respondent brought out through testimony of its witness that Respondent had not been notified prior to the incident involving the Claimant.
      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). Therefore, 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). “Actual notice” is based on direct evidence known by a person or entity while “constructive notice” is defined as "[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of . . .; notice presumed by law to have been acquired by a person and thus imputed to that person." Mace v. Ford Motor Co., 221 W. Va. 198, 653 S.E.2d 660 (2007) (citing Black’s Law Dictionary at 1090 (8th Ed. 2004)).
      In the instant case, the Court is of the opinion that Respondent had, at the least, constructive notice of risk posed this section of roadway. Given the presence of the protective mesh used along the wall face, the Court finds that Respondent had notice that rock falls were likely in the area and should have taken precautions to keep rocks off of the travel portion of the roadway. Thus, Claimant may make a recovery for the damage to his vehicle.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $356.52.
      Award of $356.52.

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