OPINION ISSUED DECEMBER 6, 1999
JOAN L. WILLIAMS
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage which occurred
as a result of her vehicle striking rocks while traveling
northbound on U.S. 250, also known as Route 2, five miles from
McMechen in the "Narrows". U.S. 250 is a road maintained by
respondent in Marshall County. The Court is of the opinion to make
an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on February
24, 1998, at approximately 9:00 to 9:30 p.m. On the rainy and
foggy night in question, claimant was traveling northbound on U.S.
250 five miles from McMechen in an area locally referred to as the
"Narrows" in Marshall County. U.S. 250 is a dimly lit two lane
road that is marked as a "falling rock" area with a speed limit of
fifty miles per hour. Earlier in the evening, claimant had
traveled to Moundsville in order to pick up her nephew who was
employed at the Moundsville Kentucky Fried Chicken. Claimant
carefully proceeded along U.S. 250 with the aid of the 1998 Geo
Prism's headlights at a speed of about forty miles per hour. There
was no other traffic on the road. Suddenly, claimant noticed rocks
in both lanes of the road. Claimant drove around the rocks in the
right lane and then proceeded around rocks in the left lane. After
driving back into the right lane, claimant's vehicle struck a rock,
damaging the left front tire and wheel. While claimant saw the
rocks on the road, she could not identify the exact rocks that she
struck with her vehicle. The incident was later reported to the
police, but no report was issued.
After the incident, claimant's vehicle began to make noises
and she took the vehicle to the dealership garage for repairs. The
damaged sustained to claimant's vehicle was in the amount of
$315.80. While claimant had a deductible feature in her motor
vehicle insurance coverage policy, the amount of the deductible was
$500.00. Thus, claimant was responsible for the damage sustained
to the vehicle.
The position of respondent was that it did not have notice of
the rocks and rock debris on U.S. 250. Respondent admitted that the
area in question was a well known "rock fall" area, but argued that
the area was not significantly hazardous to the traveling public.
The area has been clearly marked to protect the traveling public.
Two federal standard size signs, marked "Notice Falling Rock Next
1 ½ Mi" were erected in the area in question to notify the traveling public of potential problems. In addition, overhead
lights were installed on U.S. 250 in 1976. This area is regularly
patrolled and on the night in question, the weather was below zero
and respondent was conducting snow removal and ice control.
Respondent then received information regarding the incident from a
person other than claimant. According to respondent's daily
records, emergency service was dispatched to the site in order to
remove the rocks. Before this time, respondent asserted that there
was no prior notice to respondent of any rocks on U.S. 250.
The general rule of this Court has been that in claims of this
nature, a claimant must positively demonstrate that respondent had
notice or constructive notice of a dangerous condition posing a
threat of injury to property, such as falling rocks and rock
debris. Mitchell vs. Division of Highways, 21 Ct. Cl. 91 (1996);
Coburn vs. Division of Highways, 16 Ct. Cl. 68 (1986); Hammond vs.
Division of Highways, 11 Ct. Cl. 234 (1977). Besides respondent's
notice of the dangerous condition, the evidence must also establish
that respondent had a reasonable time to take suitable action to
protect motorists. Alkire vs. Division of Highways, 21 Ct. Cl. 179
(1997). Knowledge of other rock falls in the area near an incident
can be sufficient to give respondent notice of a hazard to the
traveling public. Cole vs. Division of Highways, 21 Ct. Cl. 15
In the instant claim, the Court is of the opinion that this
portion of U.S. 250 in the "Narrows" is a hazard to the traveling
public. Respondent has known since 1941 that this area is
notorious for potential rock falls. Dunn vs. Division of Highways,
19 Ct. Cl. 163 (1992). This portion of road is such a hazard to
the traveling public that warning signs and regular patrols are not
sufficient to protect the traveling public on this section of
highway. This Court in finding the State Road Commissioner liable
in the claim Varner's Adm'n v. State Road Comm'n, stated:
"[W]hen the State Road Commissioner knows or should know that an
unusually dangerous condition exits, there is a duty to inspect and
to correct the condition within the limits of the funds
appropriated by the Legislature for maintenance purposes."
Pursuant to West Virginia Code Sections 17-2A-1 and 5F-2-1, the
Division of Highways, formerly the office of State Road
Commissioner, was transferred to, and administratively attached to,
the Department of Transportation by the Executive Reorganization
Act of 1989.
Id., 8 Ct. Cl. 119, 122 (1970); See also Cole, Supra; Smith vs.
Division of Highways, 11 Ct. Cl. 221 (1997).
Just last year, this Court heard two separate claims regarding
the "Narrows" area on U.S. 250 in Marshall County. See Peck & Peck
vs. Division of Highways (CC-97-164 & CC-97-375, unpublished
OPINION ISSUED May 29, 1998); Dimmick & Dimmick vs. Division of
Highways (CC-96-561, unpublished OPINION ISSUED May 29, 1999).
Again this year, this Court heard this claim and another, Hundagen vs. Division of Highways (CC-98-303, unpublished opinion),
regarding the same area in question. In many of the claims heard
in the past by the Court, negligence on the part of the respondent
was noted by the Court and awards were made. The notoriety of this
particular area of U.S. 250 cannot be ignored by this Court. In
Dimmick, one of respondent's employees made the analogy that
driving on U.S. 250 in the "Narrows" in Marshall County was similar
to playing "Russian Roulette." See Id. However, even after all of
the previous incidents, no remedial measures have been taken by
respondent. Routine patrols do not address the problem. Frankly,
the Court is at a loss as to why respondent refuses to remedy a
unique and dangerous condition. The respondent is on notice of a
hazardous condition which poses potential danger to the traveling
public. Therefore, the Court concludes that the conduct of
respondent constitutes negligence.
The Court is of the opinion that the evidence adduced at the
September 16, 1999, hearing demonstrated that a hazardous condition
existed at the time of claimant's incident. There was no showing
that respondent did anything beyond the routine patrolling of U.S.
250. Consequently, there is sufficient evidence of negligence upon
which to base an award.
In view of the foregoing, the Court is of the opinion to and
does make an award to the claimant in the amount of $315.80.
Award of $315.80.