10, 1991, as follows:

This Court has, in past decisions, held that a lower standard of care
and maintenance is
required for the berm or shoulder of a public road, than for the
regularly traveled portion of the
road, this being the so-called New York rule. An exception to the rule,
recognized both in New
York, and West Virginia, is that the higher standard of care and
maintenance required for
traveled portion of the road will be applied for the shoulder when an
emergency requires it. See
Retzel v. State, 94 Misc.2d 562, 405 N.Y.S.2d 391 (1978). The Retzel
Court says that not
only an emergency may require the higher standard of car and
maintenance, but other
circumstances may, also, make the higher standard of care applicable.
Many states, of course,
do not have the double standard of care, one for the traveled portion of
the road and one for
berms, and indeed, in view of the many, and varied, and legitimate,
intended and necessary uses
made of the berms by the motoring public, it is difficult to rationalize
a double standard.

In Hinkle, supra, claimant, the operator of a tractor was proceeding on
the berm of a roadway
when the right wheel struck a depression in the berm causing the tractor
to flip. This Court made
an award as respondent had failed to provide sufficient berm for the
particular road which was
the subject matter of the claim; however, the Court continues to adhere
to the New York rule.
In the instant claim, the reason for claimant Alfred rule. In the
instant claim the reason for
claimant Alfred Whiteley to drive onto the berm is speculative. A
drop-off of four to five inches
at the edge of a paved road in West Virginia is not an unusual
occurrence. The respondent
maintained the berm on County Route 9 on a regular maintenance schedule
with ditching and
blading being performed twice a year, once during spring and once during
fall. Although the
Court might prefer that the berms throughout the State be maintained at
the ideal condition of
one to one and a half inches difference in elevation between the paved
portion and the berm, the
Court must also consider the burden placed upon respondent for such
maintenance standards.

Claimant Alfred Whiteley proceeded onto the berm for reasons unknown,
and he, thereupon,
failed to keep his vehicle under control thus avoiding an accident. The
evidence in this
proceeding has convinced the Court that his negligence on the part of
claimant Alfred Whiteley
in failing to maintain his vehicle under control when it traversed the
berm was equal to or greater
than that of the respondent, if any, in its maintenance of the shoulder
of County Route 9 in
Berkeley County.

We are further constrained to say that this case was ably tried and
argued by counsel for
claimants. However, we believe that our findings of fact and our view of
the law of the State of
West Virginia governing this case require the disallowance of these
claims and, accordingly, the
same are denied and dismissed.

Claim disallowed.