West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): BERMS
Opinion Issued February 19, 2014
     Claimant appeared pro se.
     C. Brian Matko, Attorney at Law, for Respondent.
      Claimant, Raymond Clevenger, brought this action to recover damages which occurred when his 1992 Dodge Ram 350 left the roadway along W. Va. Route 31 near Cairo, Ritchie County. W. Va. Route 31 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 on March 2, 2013, at approximately 9:45 a.m. Claimant testified that while traveling north along Route 31 he encountered a narrow stretch of roadway. Claimant stated that there were no markings or signs warning the public that the road was narrow. As a result, Claimant was forced to drive too closely to the edge of the roadway. Claimant testified that there was no berm or clear zone past the very narrow travel portion of the roadway which would prevent Claimant’s vehicle from exiting the road completely. Consequently, Claimant’s vehicle left the roadway, striking two trees before coming to rest in a creek. As a result of this incident, Claimant’s vehicle sustained damages in the amount of $4,000.00. Claimant carried liability insurance only on the date of the incident; therefore, no limitation applies to Claimants award.
      Respondent argues that it had neither actual nor constructive notice of the narrow condition of the roadway on the date of the incident; therefore, it cannot be held liable for Claimant’s damages.
      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 by the narrowing roadway and lack of clear zone. The volume of testimony, together with photographic evidence leads the Court to conclude that Respondent was negligent. Thus, there is sufficient evidence of negligence to base an award.
      Notwithstanding the negligence of Respondent, the Court is also of the opinion that Claimant was negligent. In a comparative negligence jurisdiction such as West Virginia, a claimant’s negligence may reduce or bar recovery in a claim. Based on the above, the Court finds that the Claimant’s negligence equals twenty-five percent (25%) of his loss. Since the negligence of the Claimant is not greater than or equal to the negligence of the Respondent, Claimant may recover seventy-five percent (75%) of the loss sustained.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $3,000.00.
      Award of $3,000.00.

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