OPINION ISSUED APRIL 9, 2002

IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


MARGARET LOUISE WALSH-ELLISON

VS.

DIVISION OF HIGHWAYS

(CC-02-062)



Claimant appeared pro se.

Andrew F. Tarr, Attorney at Law, for respondent.


PER CURIAM:

Claimant brought this action for damage to her Ford Contour which occurred when she was traveling on Route 19/21 in Raleigh County and her vehicle struck a large hole on the edge of the road. This portion of Route 19/21 is maintained by the respondent in Raleigh County. The Court is of the opinion to make an award in this claim for the reasons stated more fully below.
The incident giving rise to this claim occurred on November 17, 2001, at approximately 8:00 a.m. The weather was clear and the road surface was dry. Ms. Ellison was traveling Route 19/21 on her way to see her mother in Oak Hill. At this location, Route 19/21 is a two-lane road with a double yellow line and white lines on the edges. Claimant was traveling approximately thirty to thirty-five miles per hour as she was approaching a red light. At the location of this incident, there is a left turning lane for traffic to turn onto South Fayette Street. Prior to the designated location for the left turn, there is a restricted lane of travel with yellow lines. The claimant testified that there was a truck that drove into the turning lane too soon and was within the restricted lane. The truck was very close to claimant's vehicle. In order to avoid contact, claimant drove her vehicle slightly to the left where it struck a large hole on the edge of the road. The impact destroyed the two passenger side tires and wheels. The hole was approximately eight and a quarter inches deep and extended from the edge of the road and covered a small portion of the white edge line. Claimant described the hole as very jagged and sharp around the edges. She testified that she knew the hole was present and that it had been there since June or July of 2001. Further, she had called respondent's office to report this hole as well as other problems along the same stretch of road in approximately June of 2001 prior to the incident. Ms. Ellison submitted a repair estimate for the two wheels in the amount of $132.64. and a repair estimate in the amount of $105.89 for the two tires.
Claimant asserts that respondent was negligent in its maintenance of Route 19/21 at this location and that its negligence created a hazardous condition for the traveling public.
Respondent contends that it did not have a reasonable amount of time to repair this location following the heavy rain damage to the highways in Raleigh County and that under the circumstances it adequately maintained route 19/21.
Michael B. Allen, employed by respondent in Raleigh County as a foreman, testified that his responsibilities include maintaining and monitoring the roads under his responsibility. This portion of Route 19/21 is within his responsibility and he is familiar with the location of this incident. He stated that Route 19/21 is a high priority road and is heavily traveled. Mr. Allen was aware that the shoulder of the road was in poor condition at this location due to the heavy rains that occurred during the prior summer months. He testified that there were higher priority routes and locations to repair before reaching this particular hole on the edge of the road.
It is a well established principle of law in this State that respondent is neither an insurer nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 811 (W.Va. 1947). For the respondent to be held liable, the claimant must establish by a preponderance of the evidence that the respondent had actual or constructive notice of the road defect in question and a reasonable amount of time to make adequate repairs. Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16Ct. Cl. 8 (1985).
In this claim, the evidence established that this portion of Route 19/ 21 presented a hazard to the traveling public. The size of this hole, its location in the road, and the fact that respondent knew that it existed leads the Court to conclude that respondent had notice of this hazardous condition and an adequate amount of time to take corrective action. Thus, the Court finds respondent negligent in this claim and claimant may make a recovery for her damages.
Accordingly, the Court makes an award to claimant in the amount of $238.53.
Award of $238.53.



CC-02-062
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


CATHERINE BRANICKY
VS.

DIVISION OF HIGHWAYS

(CC-02-121)



Claimant appeared pro se.

Andrew F. Tarr, Attorney at Law , for respondent.

PER CURIAM:

Claimant brought this action for damage to her 1988 Eagle Premier which occurred when she was traveling north on Route 2 between Glendale and McMechen in Marshall County and her vehicle struck a large rock in the road. Respondent was responsible at all times herein for the maintenance of Route 2. The Court is of the opinion to make an award in this claim for the reasons set forth below.
The incident giving rise to this claim occurred on February 10, 2002, at approximately 2:30 p.m. Claimant and a friend were on their way back from Glendale. Claimant was driving northbound on Route 2 towards her home in Benwood in Marshall County. It was cloudy outside but the roads were dry. She was traveling in the far right lane. At this location, Route 2 has four lanes. Claimant was just north of Glendale traveling at approximately forty to forty five miles per hour when suddenly her vehicle struck a large rock in the middle of her lane of travel. She stated that she saw the rock just briefly before the vehicle struck it, but she did not have enough time to react so as to avoid it. There was only one other vehicle near her vehicle at the time of the incident, and it was trying to pass her in the left lane. She testified that the rock was approximately twelve to fifteen inches long, eight to nine inches tall, and eight to ten inches wide. The impact was strong enough to destroy the transmission in the vehicle. She was forced to maneuver the vehicle off the road, and wait on a tow truck. Fortunately, no one was injured, but the vehicle was seriously damaged and had to be towed. Claimant stated that she traveled this portion of Route 2 often. The last time she traveled it was approximately four days before this incident. She was aware that this area was a rock fall area, and that it is marked with warning signs. Although she has never seen a rock fall at this location prior to this incident, she testified that she has traveled the same portion of Route 2 and observed numerous clean up crews cleaning up rock falls. Claimant also testified that this area is referred to as the "upper narrows" and is known for having numerous rock falls. Claimant submitted a repair estimate for the cost of replacing the vehicle's transmission. The estimated cost for replacing the transmission was $1,500.00 to $2,000.00. Claimant also submitted into evidence a tow bill in the amount of $35.00. Claimant testified that she gave the repair shop her vehicle because the cost to replace the transmission was more than the value of the vehicle. She purchased the vehicle in 1995 at a price of approximately $4,900.00. The vehicle had approximately fifty-one thousand miles on it when she bought it, and approximately seventy thousand miles when this incident occurred. Further, she testified that a few months prior to the accident a few individuals had told her that the vehicle was worth approximately $800.00 to $1,000.00. Claimant stated that she did not have comprehensive insurance coverage that would cover any portion of this damage. Claimant seeks the value of the vehicle and the cost of the towing bill.
Claimant asserts that respondent knew or should have known that this was a high risk area for rock falls and yet failed to take timely and adequate measures to remedy this hazardous condition.
Respondent did not present any evidence or witnesses in this claim.
To hold respondent liable, claimant must establish by a preponderance of the evidence that respondent had actual or constructive notice of the road defect in question and a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent had at least constructive, if not actual notice, of rock fall hazards in the area at issue. The area on Route 2 commonly referred to as "the narrows" is a section of highway known for dangerous rock falls which are a hazard to the traveling public. The respondent's actions on the date of this incident were not adequate to protect the claimant from the rocks which frequently fall onto the highway. Thus, the Court is of the opinion that respondent is liable for the damages which flow from its inadequate protection of the traveling public in this specific location of Route 2, and further, that respondent is liable for the damages to claimant's vehicle in this claim. The Court is of the opinion to make an award to the claimant for the fair market value of her vehicle in the amount of $1,000.00, and an award for the cost of the towing bill in the amount of $35.00. Thus, the Court makes a total award to the claimant in the amount of $1,035.00.
In accordance with the finding of facts and conclusions of law as stated herein above, the Court is of the opinion to make an award to the claimant in the amount of $1,035.00.
Award of $1,035.00.


CC-02-121
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA

BRYANT M. HATFIELD, JR.

VS.

DEPARTMENT OF MOTOR VEHICLES

(CC-02-167)



Claimant appeared pro se.

Joy M. Bolling, Assistant Attorney General, for respondent.


PER CURIAM:

This claim was submitted for decision based upon the allegations in the Notice of Claim and respondent's Answer.
Claimant purchased a truck based upon title information issued by the respondent State agency. After purchasing the truck and being issued a clear title, claimant determined that the title should have been noted as a rebuilt title. Claimant purchased the vehicle for $6,000.00. However, the vehicle was worth only $1,000.00; therefore, claimant seeks $5,000.00 in damages.
In its Answer, respondent admits the validity of the claim and that the amount claimed is fair and reasonable. The Court is aware that respondent does not have a fiscal method for paying claims of this nature; therefore, the claim has been submitted to this Court for determination.
In view of the foregoing, the Court is of the opinion to and does make an award to claimant in the amount of $5,000.00.
Award of $5,000.00.
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA






RONALD R. JAWORSKI and JOANN JAWORSKI


VS.


DIVISION OF HIGHWAYS


(CC_02_204)






Claimants appeared pro se.


Andrew F. Tarr, Attorney at Law, for respondent.




PER CURIAM:

Claimants brought this action for damage to their 2000 Ford Taurus which occurred when they were traveling on Route 2 north of Glendale in Marshall County and the vehicle struck a large rock in the road. Respondent was responsible at all times herein for the maintenance of Route 2. The Court is of the opinion to make an award in this claim for the reasons set forth more fully below.

The incident giving rise to this claim occurred on April 22, 2002 at approximately 6:00 a.m. Mr. Jaworski was driving and Mrs. Jaworski was a front seat passenger. They were traveling from their home in Glendale to babysit for their daughter in Elm Grove. There was no precipitation; however, it was very foggy which reduced visibility. The claimants were traveling at approximately forty_five miles per hour in the right lane. Mr. Jaworski testified that the incident occurred just north of Glendale. He stated that they had just rounded a curve and approached a straight stretch in the road when he suddenly saw three or four large rocks in the road. He testified that he could not avoid striking all of them so he quickly decided to drive the vehicle over the smallest rock, which caused damage to the transmission pan. He described the rock that the vehicle struck as approximately ten inches long and six inches high. The other rocks were much larger. According to Mr. Jaworski, he did not have time to apply his brakes because the rocks were in his lane of travel just as he rounded a curve. Claimants submitted a repair bill into evidence in the amount of $274.18 for which they are seeking recovery, and a copy of an invoice for a rental car in the amount of $78.60 which their insurance paid $40.00. Therefore, claimants also seek to recover their out_of_pocket costs related to the rental car in the amount of $30.00.

Claimants assert that respondent knew or should have known that this was a high risk area for rock falls and yet failed to take timely and adequate measures to remedy this hazardous condition.

It is respondent's position that it acted diligently in this claim in that it had warning signs in place and other safety mechanisms implemented to protect the public.

Christopher Minor, Transportation Crew Leader for respondent in Marshall County at the time this incident occurred, has responsibility for maintenance of the roads which includes overseeing Route 2 at this location and responding to any reports of fallen rocks. He testified that he is familiar with this portion of Route 2 at the location of this incident and that it is a known rock fall area. He also testified that there are rock fall warning signs in place including one at the north end of Glendale and one at the south end of McMechen so as to warn traffic going in both directions. In addition to the warning signs, Mr. Minor stated that respondent has high_intensity lights in place at various locations through the narrows to illuminate the road for the traveling public. Mr. Minor also testified that respondent did not have any notice of this rock fall prior to this incident and responded to it as soon as it was possible.

It is a well established principle that the State is neither an insurer nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 811 (W.Va.1947). To hold respondent liable, claimant must establish by a preponderance of the evidence that respondent had actual or constructive notice of the road defect in question and a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways 16 Ct. Cl. 8 (1985).

In the present claim, the Court is of the opinion that respondent had at least constructive, if not actual, notice of rock fall hazards in the area at issue. This area on Route 2 is commonly referred to as "the narrows" since it is a section of highway known for dangerous rock falls which are a hazard to the traveling public. Although respondent has warning signs in place and special lights to help illuminate the highway at night, this has not proven to be an adequate remedy to protect the traveling public from the rocks which frequently fall onto the highway. This Court has expressed its concern with the section of highway know as the "narrows" in several previous opinions wherein awards were made to members of the traveling public who had accidents caused by the falling rocks. Dunn v. Division of Highways, 19 Ct. Cl. 163 (1992); Dimmick v. Division of Highways, 22 Ct. Cl. 71 (1998); see also Foster v. Division of Highways, 23 Ct. Cl. 248 (1999); Hundagen v. Division of Highways, 23 Ct. Cl. 81 (1998); Williams v. Division of Highways, 23 Ct. Cl. 109 (1999). Thus, in this claim, the Court is of the opinion that respondent is liable for the damages which flow from its inadequate protection of the traveling public in this specific location of Route 2, and further, that respondent is liable for the damages to claimants' vehicle.

In accordance with the findings of fact and conclusions of law as stated herein above, the Court is of the opinion to and does make an award to the claimants in the amount of $312.78.

Award of $312.78.
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA



JOYCE E.C. EDGELL and ROBERT N. EDGELL

VS.

DIVISION OF HIGHWAYS

(CC-02-219)



Claimants appeared pro se.

Andrew F. Tarr, Attorney at Law, for respondent.


PER CURIAM:

Claimants brought this action to recover for damage to their real and personal property from a flood which occurred on or about May 23, 2000. Claimants allege that the flood was the result of respondents' failure to maintain its drainage system on McKimmie Ridge Road (designated as Route 52) in Wetzel County. Respondent was at all times herein responsible for the maintenance of this road and its drainage system. The Court is of the opinion to grant an award to claimants for the reasons stated herein below.
Claimants purchased their property adjacent to McKimmie Ridge Road in the fall 1984. The road circles their property with a hillside and the road above their property to the back of the property. The road proceeds around their property on one side, and then the road circles to the front of the property where the road is below their property. Claimants had experienced no severe water problems on their property for the sixteen years that they resided on the property. According to claimant Mrs. Edgell, in May 2000 respondent replaced a culvert on the upper side of the road during which time respondent also cleaned off the bank along the ditch line; at that same time respondent also removed a "lip" of earth at the edge of the road adjacent to claimants' property; and, respondent slanted the roadway surface toward claimants' property. As described by Mrs. Edgell, the lip of earth along the edge of the road was anywhere from six inches to eighteen inches in height. In her opinion, this lip, consisting of dirt and stone built up during routine maintenance by respondent, acted as a barrier for surface water which flowed in the road. When the lip was removed during the maintenance project, it allowed surface water from the road to flow onto claimants' property. Additionally, she testified that respondent filled in the ditch line on the opposite side of the road from claimants' property. This ditch had been about a foot to a foot and a half deep, but during the maintenance efforts by respondent, it was filled in and became a shallow area for the water. According to claimant Joyce Edgell, these maintenance efforts by respondent resulted in excess runoff which flowed from the hillside above their property, across McKimmie Ridge Road, over the edge of the road, and onto claimants' property causing damage thereto, all of which occurred during an evening storm beginning around 5:00 p.m. to 6:30 p.m. on May 23, 2000. It rained off and on during that night but the most severe rainfall occurred by 9:30 p.m. Claimant and her husband noticed that more water than usual was flowing onto their property that evening. They worked in the dark by flashlight in an attempt to dig a ditch to protect an out building and their house. In the morning of May 24, 2000, claimants took photographs depicting the conditions surrounding their home and in the yard. As depicted in photographs taken by claimants, the amount of mud and gravel covering the deck, patio, out building, ditch, and their yard in general was considerable.
Claimants assert that another reason for the excessive amount of water flowing onto their property during the flood was the fact that a culvert respondent replaced under McKimmie Ridge Road had not functioned properly prior to being replaced. The new culvert was installed at a location above claimants' property at a location different from the original culvert at the request of the claimants. This new culvert, according to Mrs. Edgell's testimony, was not large enough to handle the amount of water coming from the hillside and it quickly filled up causing more surface water than usual to flow over the road surface and onto claimants' property causing damage to an outbuilding, deck, and covering their yard in dirt and gravel. The mud was approximately two feet deep in places on their property. A ditch that existed on claimants' property to provide for water drainage from the road became filled with mud, dirt, and gravel during the flood and that ditch had to be cleaned out to continue to provide protection to their property from normal runoff from McKimmie Ridge Road. The damages to claimants' real property and personal property which were the result of the flood on May 23, 2000, were documented in the amount of $9,812.00. Claimants also allege annoyance and inconvenience as damages.
Respondent contends that it performed routine maintenance on McKimmie Ridge Road (also referred to by its designated route number as County Route 52 by respondent's employees) on May 15, 2000. Dale Richmond, an equipment operator for respondent in Wetzel County, testified that he operated the backhoe for respondent on May 15, 2000, during the maintenance project on McKimmie Ridge Road. He explained that the existing fifteen-inch culvert was "bad" so it was replaced with an eighteen-inch culvert. The new culvert was placed farther away from the original culvert at the request of claimant Mrs. Edgell. He described the work performed for replacing the culvert and that after the May 23, 2000, incident that the new culvert was filled with cement at the request of the claimants. County Route 52 (McKimmie Ridge Road) is a gravel road with a crown at the center for water to drain to either side of the road. He filled in the ditch line on the road opposite from claimants' property as the ditch was two to three feet deep in places. The filled ditch line was much more shallow after he finished the routine maintenance work.
Joe Mercer, a crew leader for respondent in Wetzel County, testified that McKimmie Ridge Road is a gravel road and a bus route. As such, it is a low priority road for maintenance purposes. He visited claimants' property after the flooding had occurred on May 23, 2000, and took photographs which depict the ravine from the road proceeding down the hillside through claimants' property. He did not remember the weather conditions on May 23, 2000.
The Court, having reviewed all of the evidence in this claim, is of the opinion that the maintenance efforts of the respondent were performed to improve McKimmie Ridge Road; however, these efforts were performed without regard to the amount of water that flows from the hillside, across the road, and onto the property below the road which is owned by claimants. The "lip" of earth and gravel described by claimant Mrs. Edgell apparently afforded protection to claimants' property from the natural flow of water on McKimmie Ridge Road. While respondent's actions appear to be reasonable under the circumstances, respondent did not take into consideration the amount of water coming off its roadway. Respondent did not provide protection to claimants' property when it removed the "lip" of earth that protected the abutting property. It exacerbated runoff problems when it filled in the ditch line on the opposite side of McKimmie Ridge Road creating more surface water runoff onto the road and thus onto claimants' property. All of its actions were detrimental to claimants' property. Even though claimants' property appears to be in a natural drainage area there had not been severe water problems from runoff until respondent's changes to the road, the ditch line, and the removal of the lip of earth at the edge of claimants' property. An owner of property which is abutting property owned by another is liable for creating a situation whereby excessive water is diverted onto the adjoining property. In the instant claim, claimants had not experienced excessive water problems for sixteen years until the actions by respondent in its maintenance of its road. Therefore, the Court concludes that the actions of the respondent in its maintenance of McKimmie Ridge Road were the proximate cause of the flooding on claimants' property on May 23, 2000.
As to the damages incurred by claimants, they established through estimates the cost for restoring their property and the replacement cost for damaged personal property. The Court calculates actual damages in the sum of $9,812.00. The Court is also of the opinion that claimants suffered annoyance and inconvenience in their efforts to clean up the mud and gravel on their property and in cleaning out their drainage ditch. They spent several days in their efforts to restore their property so as to make it usable. The Court has determined that the amount of $3,000.00 for annoyance and inconvenience is fair and reasonable.
Accordingly, the Court is of the opinion to and does make an award to claimants in the amount of $12,812.00.
Award of $12,812.00.


CC-02-219
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA



TASHA NICOLE ROSS

VS.

DIVISION OF MOTOR VEHICLES

(CC-02-291)



Claimant appeared pro se.

Joy M. Bolling, Assistant Attorney General, for respondent.


PER CURIAM:

This claim was submitted for decision based upon the allegations in the Notice of Claim and respondent's Answer.
On January 30, 2002, claimant paid a traffic ticket in Dunbar, Kanawha County. On June 2, 2002, claimant was pulled over by police and informed that her license was suspended and she was placed under arrest. Claimant was forced to pay $150.00 as a percentage of her bail in order to be released from jail. Apparently, respondent had failed to note that claimant had received a ticket which she paid prior to the deadline of February 16, 2002. Claimant seeks reimbursement of $150.00 for the percentage of bail she was required to pay as a result of respondent's error.
In its Answer, respondent admits the validity of the claim and that the amount is fair and reasonable. The Court is aware that respondent does not have a fiscal method to reimburse claimant for a loss such as that experienced by claimant; therefore, the claim has been submitted to this Court for determination.
The Court, having reviewed the facts and circumstances in this claim, has determined that claimant is entitled to a recovery for his sustained loss.
Accordingly, the Court makes an award to claimant in the amount of $150.00.
Award of $150.00.