Larry D. Taylor, Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.


Claimant, Bonita M. Kouns, Administratrix of the Estate of Michael
Wayne Kouns, filed this
claim in the amount of $325,000.00 against the respondent for the
wrongful death of her
husband, Michael Wayne Kouns, which occurred when the decedent and his
uncle were in a
single-car accident on January 31, 1985.

At the time of the accident, Michael Wayne Kouns was driving his
mother's vehicle from
Marmet to Whitesville, on State Route 94. He was accompanied in the
automobile by Edgar
Stacy, his uncle. The weather was in a freeze-thaw cycle. As he
approached Hernshaw, in the
vicinity of Delcie's Tavern, he lost control of the automobile, crossed
both lanes of Route 94,
and struck trees located across the highway and on the opposite side of
Route 94. Mr. Kouns
dies as a result of the accident. It is alleged that the automobile
struck ice which was on the berm
adjacent to Route 94 and that this was the proximate cause of the

The vehicle was proceeding in a southerly direction at a speed in
excess of 55 miles per hour.
The speed limit at that location is 45 miles per hour. There is a
hillside behind Delcie's tavern, the
site of the accident. This hillside is not on property which is owned or
maintained by respondent.
The record revealed that water runs down from the hill and collects in
front of the tavern. There
is a culvert located about 150-175 feet up Route 94 from Delcie's
Tavern. Ice had accumulated
at that location in previous winters. The ice was estimated to be
approximately 12-18 inches
thick on the day of the accident.

There was conflicting evidence concerning whether or not the automobile
which the deceased
was operating actually struck the ice. One witness to the incident
testified that it did. The trooper
who investigated the accident testified that he observed no physical
evidence showing that the
vehicle had struck the ice. More importantly, an individual who was
following Mr. Kouns, with
the intention of repossessing the Kouns vehicle, testified that he did
not observe the Kouns
vehicle strike the ice. He stated that Michael Kouns lost control of the
automobile before
reaching the ice.

Several individuals testified that they had made complaints to
respondent concerning the water
in the vicinity of Hernshaw. However, when queried, it was learned that
the complaints were not
specifically related to the accident site, nor were these complaints
voiced in 1985 or the
previous winter.

The Court finds no reliable evidence that the accumulation of ice on
the highway was the
proximate cause of the accident. The deceased was travelling at a rate
of speed that was
excessive for the driving conditions at the time in addition to being
about the legally mandated
speed limit. There was no credible evidence to support the allegation
that claimant's accident
was caused by his vehicle striking the ice. To make an award in this
case, the Court would be
obliged to conclude that respondent's negligence was the sole proximate
cause of Michael
Kouns' death. There is no credible evidence to support such a conclusion.

Claim disallowed.