OPINION ISSUED JANUARY 19, 2001
LEWIS M. COPEN AND
GATHALEE GALE COPEN
DIVISION OF HIGHWAYS
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimants brought this action for vehicle damage sustained
when their vehicle was struck by a falling rock while claimant
Gathalee Gale Copen was traveling northbound on Route 20 near
Hinton. At this location, Route 20 is maintained by respondent in
Summers County. The Court is of the opinion to deny this claim for
the reasons more fully set forth below.
The incident giving rise to this claim occurred on March 18,
2000 at approximately 11:00 a.m. Claimant Gathalee Gale Copen was
traveling northbound on Route 20 in their 1989 Buick Park Avenue at
a speed of about sixty miles per hour. She was proceeding from the
Summers County Hospital towards her residence in Charmco. At this
location, Route 20 is a first priority, two-lane road with double
yellow lines indicating the center of the road surface and white
lines indicating the edge of the pavement. The road has two
twenty foot lanes and two to six foot berms. Along this portion of
road, there is a "Falling Rock" sign on the side of the road in
each direction of travel. Claimant testified that she travels this
road regularly and did not recall observing any "Falling Rock"
signs along the road. As claimant drove her vehicle on the road,
a rock fell from the embankment, striking the vehicle and then
bouncing into a ditch along the side of the road. The rock was
about one to one and one-half feet in diameter. After the
incident, claimant maneuvered the vehicle to the side of the road.
Charles Cales, who was following behind claimant in another
vehicle, witnessed the incident and stopped to assist her. The
impact damaged the front of the vehicle. The sustained damage was
estimated in the amount of $750.48.
The position of respondent is that it did not have notice of
a rockfall on Route 20 in Summers County. According to Highway
Administrator Billy Joe Lilly, this portion of road is a known
rockfall area and warning signs have been in place for about twelve
years. Prior to this incident, respondent did not have any report
of a rockfall in the area.
The Court has consistently held that the unexplained falling
of rock or rock debris on the road surface is insufficient to
justify an award. Mitchell vs. Division of Highways, 21 Ct. Cl. 91
(1996); Hammond vs. Dept. of Highways, 11 Ct. Cl. 234 (1977). In
order to establish liability on behalf of respondent, the evidence must establish that respondent had notice of the dangerous
condition posing a threat of injury to property and a reasonable
time to take suitable action to protect motorists. Alkire vs.
Division of Highways, 21 Ct. Cl. 179 (1997).
In this claim, the evidence failed to establish that
respondent had not taken adequate measures to protect the safety of
the traveling public on Route 20 in Summers County. While the
Court is sympathetic to claimants' plight, the fact remains that
there is no evidence of negligence on the part of respondent upon
which to base an award.
In accordance with the findings of fact and conclusions of law
stated herein above, the Court is of the opinion to and does deny