VONLEY COLE, Administrator of the Estate of KAREN RENEE COLE,


David Burton, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.


Following the hearing of this claim on May 8 and 9, 1985, a schedule
for filing of briefs was
established. Subsequently, the claimant filed a motion requesting that
the brief of respondent not
be considered by the Court in the determination of this claim since the
brief was filed a
substantial period of time after the due date set by the Court in the
briefing schedule. The Court,
having duly considered the motion, sustained the motion. The brief of
the respondent was not
considered by the Court in the determination of the claim.

Karen Renee Cole, eighteen-year-old daughter of Vonley and Cecelia
Cole, was driving from
her home in Midway to the place of her employment, the Human Touch,
Incorporated office, in
Raleigh County, at approximately 9:00 a.m. on August 9, 1982. She was
operating a 1979
Plymouth automobile northerly on W.Va. Route 16 in Raleigh County. The
right wheels of the
vehicle left the right lane of the travel portion of the highway and
went to the right onto the berm.
In an attempt to steer the vehicle back onto the highway, control of the
vehicle was lost. It
proceeded to its left across the two northbound traffic lanes of the
highway and across the
concrete median into the southbound lanes and was struck by an oncoming
vehicle, a 1980
Chevrolet Gruman truck. As a result of the collision, she suffered
injuries from which she died.

It is the position of the claimant that the respondent failed to
properly maintain the berm of
W.Va. Route 16 and allowed a rut to form between the edge of the highway
pavement and the
berm. Claimant also contends that the respondent should have constructed
a Jersey-type median
barrier between the northbound and southbound lanes rather than the type
of concrete median
barrier which was constructed.

W.Va. Route 16 was described by Raleigh County Deputy Sheriff Gary Lee
Lively, the
investigating officer of the accident, as being a four-lane highway with
a concrete median
between four and six feet in width and six to eight inches in height.

An eye witness to the accident, Otis Michael Horton, testified that he
was driving a 1977 Ford
Explorer truck behind the vehicle being driven by the decedent. He was
behind her for
approximately 30 seconds before her vehicle left the highway. He stated,
"I came right in behind
her and I believe she turned the radio on or she was changing stations.
Like I say, the road was
wet and the car went off the road, it came back onto the road and I seen
the brake lights come
on, the car started fishtailing and I would say it traveled
approximately maybe 100 feet. Then it
just turned sideways and when it turned sideways it hit the median and
came across the road."
The testimony of several witnesses for the claimant revealed that the
berm in the area of the
highway where the vehicle went onto the berm was approximately four
inches below the level of
the paved portion of the highway. This condition was prevalent along
much of W.Va. Route 16
in the area of the accident. The berm had been level with the surface of
the highway at one time
but had eroded over a period of time.

Herbert Hill, a professional engineer specializing in the forensic
sciences, primarily in the
investigation of motor vehicle accidents, testified that the proximate
cause of the accident herein
was that the tire of the decedent's vehicle became trapped in the rut of
the berm, and, when she
attempted to pull the vehicle back onto the highway, the vehicle
catapulted across the highway
as she no longer was able to control the vehicle. Dr. Hill also
testified that had a Jersey barrier
of four feet in height been constructed between the lanes of the
highway, the decedent would
not have gotten in the other lane but would have hit the barrier.

Alan E. Jordan, Assistant Design Director of the Roadway Design
Division for the respondent,
testified that W.Va. Route 16 in the area of the accident was designed
in 1962 to 1963 and
constructed in 1964 and 1965. He stated that the median was constructed
with a
semi-mountable curb which has a slight base slope. The curb starts four
inches from the ground,
goes up four inches, then slopes back a total of four inches which means
it is approximately eight
inches in height. This type of median is regularly utilized on four-lane
noncontrolled access
roads. The Jersey barriers have been predominantly used on controlled
access facilities. These
are not used on uncontrolled access roads as problems are created with
the protection of the
end sections and the number of cars traveling per day on W.Va. Route 16
would not have made
it mandatory to use such barriers. In addition the witness explained
that the berms adjacent to
W.Va. Route 16 are approximately 10 feet in width. The berms have two
purposes. One is to
provide a recovery area for erratic vehicles and the other is to provide
a disabled vehicular lane.

The testimony in the record of this claim reveals that the berm of the
highway was not
maintained in perfect condition. As is the situation on many of the
roads in West Virginia, erosion
occurs on the berm over a period of time. The berm or shoulder of a
highway must be
maintained in a reasonably safe condition for use when the occasion
requires, and liability may
ensue when a motorist is forced onto the berm in an emergency or
otherwise necessarily uses
the berm of the highway. 39 Am.Jur. 2d "Highways, Streets, and Bridges,"
126 W.Va. 732, 30
S.E.2d 14 (1944). Also see Sweda v. Dept. of Highways, 13 Ct.Cl. 249
(1980). Under the
facts of the instant claim, the Court cannot conclude that the
claimant's decedent was forced
onto the berm or otherwise necessarily used it.

To require the respondent to maintain the berms adjacent to all of the
highways in the State of
West Virginia in perfect condition would be a burden impossible for the
respondent to perform.
There are areas in this State where construction of berms is literally
impossible. The Court finds
that the claimant's decedent was negligent in the operation of her

For these reasons the Court is disposed to and does disallow this claim.

Claim disallowed.