STATE OF WEST VIRGINIA
Report of the Court of Claims 1985-1987
Volume 16
STATE OF WEST
VIRGINIA REPORT OF THE COURT OF CLAIMS
For the Period from Ju’y 1, 1985 to June
30, 1987
By
CHERYLE M. HALL
Clerk
VOLUME XVI
(Published by authority code 12-2-25)
II
PERSONNEL OF THE STATE COURT OF CLAIMS
Personnel
of the
State Court of Claims
HONORABLE GEORGE S. WALLACE, JR Presiding Judge
HONORABLE WILLIAM W. GRACEY Judge
HONORABLE DAVID G. HJkNLON Judge
CHERYLE N. HALL Clerk
CHARLIE BROWN Attorney General
FORMER JUDGES
HONORABLE JULIUS
W. SINGLETON, JR July 1, 1967
——July 31, 1968
HONORABLE A. W. PETROPLUS August 1, 1968
——June 30, 1974
HONORABLE HENRY LAKIN DUCKER July 1, 1967
——October 31, 1975
HONORABLE W. LYLE JONES July 1, 1967
——June 30, 1976
HONORABLE JOHN B. GARDEN July 1, 1974
——December 31, 1982
HONORABLE DANIEL A. RULEY, JR July 1, 1976
——February 28, 1983
LETTER OF
TRANSMITTAL hI
LETTER OW TRINSMXTTAL
To His Excellency
The Honorable Arch A. Moore, Jr.
Governor of West Virginia
Sir:
In conformity with the requirements of section twenty—five of the court of
Claims law, approved March eleventh, one thousand nine hundred sixty-seven, I
have the honor to transmit herewith the report of the State Court of Claims for
the period from July one, one thousand nine hundred eighty-five to June thirty,
one thousand nine hundred eighty- seven.
Respectfully submitted,
CHERYLE M. HALL,
Clerk
TERMS OF COURT
TERMS OF COURT
Two regular terms of court are provided for annually the second Monday of April and September.
Iv
OPINIONS
VI
TABLE OF CASES REPORTED
TABLE OF CASES REPORTED
AETNA CASUALTY
& SURETY, AS SUBROGEE
OF ROBERT W. DAVIS, AND ROBERT W.
DAVIS, INDIVIDUALLY V.
DEPT. OF HIGHWAYS
ALLEN, CHARLES EDWARD V.
DEPT. OF HIGHWAYS
ALTOMARE, TERESA R. AWl) SAMUEL ALTOMARE V. DEPT. OF
HIGHWAYS
AMERICAN OFFICE
SYSTEMS, INC. v.
DIV. OF VOCATIONAL
REHABILITATION
AMERICAN TELETRONICS CORPORATION V. DEPT. OF
HEALTH
AMERICAN BRIDGE DIV.
OF UNITED STATES
STEEL CORPORATION, A DELAWARE
CORPORATION, AND AMERICAN
BRIDGE DIV.
OF UNITED STATES STEEL CORPORATION, A
CORPORATION, ON BEHALF OF JOHN B.
CONOMOS, INC., A
PENNSYLVANIA
CORPORATION V DEPT. OF HIGHWAYS
B-K DYNAMICS, INC. V. TAX DEPT
BANKERS POCAHONTAS COAL LIMITED
PARTNERSHIP AND W. B. SWOPE,
INDIVIDUALLY V. DEPT. OF HIGHWAYS
BASHAM, JAMES W. JR. V.
DEPT. OF HIGHWAYS
BAUER, J. W. v. DEPT. OF HIGHWAYS
BETTY J. JEFFRIES, ADMINISTRATRIX OF THE ESTATE OF EARL WILLIAM JEFFRIES,
DECEASED V. DEPT. OF HIGHWAYS
BINDER, MARY ELIZABETH V.
DEPT. OF EDUCATION
BISSETT, KAREN SUE V. DEPT. OF HIGHWAYS
BOGGS, BRENT V. DEPT. OF CORRECTIONS
BOLYARD, JAY L. V. DEPT. OF HIGHWAYS
BURGER, HENRY AND GERALDINE BURGER V. DEPT. OF HIGHWAYS 92
2
14 1 73 46 63 49 1
79 114 120 102 121
TABLE OF CASES REPORTED
VII
CALISE,
PHIL V. DEPT. OF HIGHWAYS
CAPITOL BUSINESS EQUIPMENT, INC. V.
DEPT. OF FINANCE AND ADMINISTRATION
CAPITOL BUSINESS EQUIPMENT, INC. V.
DEPT. OF PUBLIC SAFETY
CARL K. GEUPEL CONSTRUCTION COMPANY, INC V.
DEPT. OF HIGHWAYS
CARR, WILLIAM H. v. DEPT. OF HIGHWAYS
CHAPMAN, DELILAH LYNN V.
DEPT. OF HIGHWAYS
CHARLES, JAMES ADMINISTRATOR OF THE
ESTATE OF BILLY R. CHARLES,
DECEASED V. DEPT. OF HIGHWAYS AND
BEN H.ALLISON,
ADMINISTRATOR OF THE
ESTATE OF DAVID W.
ALLISON,
DECEASED V. DEPT. OF HIGHWAYS
CLARK, NAOMI A. V. DEPT. OF COMMERCE
CLAY, WILLIAM H. V. DEPT. OF HIGHWAYS
COBURN, ARTHUR V. DEPT. OF HIGHWAYS .
CODEX CORPORATION V. BOARD OF REGENTS
COLE, VONLEY ADMINISTRATOR OF THE
ESTATE OF KAREN RENEE COLE, V.
DEPT. OF HIGHWAYS
COLEMAN, KAREN V. DEPT. OF
HIGHWAYS
COMMERCIAL UNION INSURANCE
SUBROGEE OF CHARLES WILLIAM MOONEY, AND CHARLES WILLIAM MOONEY,
INDIVIDUALLY V. DEPT. OF HIGHWAYS .
CORNETTE, ARTHUR L. JR. v.
DEPT. OF HIGHWAYS
COUGHLIN, JAMES A. JR. AND ALVIN E.
GARDNER V. DEPT.
OF HIGHWAYS
CRADDOCK, OLIVE v. DEPT. OF HIGHWAYS .
CUNNINGHAM, WILLIAM K. AND TRESEA J.
CUNNINGHAM V. DEPT. OF HIGHWAYS 2 145 146 26 122 103 123 74 3 68 83 51
125
114
VIII
TABLE OF CASES REPORTED
CURRENCE, JIMMIE A. AND EULA R. AND LOREN
AND RELLA CURRENCE V.
DEPT. OF HIGHWAYS 28
CURRENCE, JIMMIE A. AND EULA R. AND
WREN AND RELLA CURRENCE V.
DEPT. OF HIGHWAYS 30
DANIELS, CARL A. V. DEPT. OF
HIGHWAYS 43
DAVIS,WALTER J. V. DEPT. OF HIGHWAYS 10
DOTSON, FONSO W. AND SARAN E. DOTSON V.
DEPT. OF HIGHWAYS
104
DUNN, LEO AND EDITH DUNN V.
DEPT. OF HIGHWAYS
105
EDWARDS, EUGENE R. JR. AND MARTHA
E.
EDWARDS V. DEPT OF HIGHWAYS 18
ESTES, MARY KATHYRN v. DEPT. OF HIGHWAYS 34
FARLEY, C. P. AND REBECCA L. PARLEY V.
DEPT. OF HIGHWAYS
53
PARLEY, LARRY AND LINDA
FARLEY V.
DEPT. OF HIGHWAYS 92
FARMERS INSURANCE GROUP COMPANY, AS
SUBROGEE OF MARGARET GERRITSEN AND
ADRIAN GERRITSEN V.
DEPT. OF HIGHWAYS 85
FARMERS & MECHANICS MUTUAL
FIRE INSURANCE
W.VA. AND MUTUAL PROTECTIVE
ASSOCIATION OF W.VA. V. DEPT. OF
HUMAN SERVICES AND
DEPT. OF CORRECTIONS 111
FRANK, KENNETH E. v. DEPT. OF HIGHWAYS . . . 126
FREEMAN, REXELL C. AND JOYCE FREEMAN V.
DEPT. OF HIGHWAYS 4
GIANPRANCESCO, TONI INDIVIDUALLY, AND
TONI GIANFRANCESCO, AS PERSONAL
REPRESENTATIVE, NEXT FRIEND, AND
NATURAL PARENT OF DUANE GIANFRANCESCO,
A MINOR, (DECEASED) v.
DEPT. OF HIGHWAYS 77
GILLISPIE, ROBERT KEVIN AND CAROLYN
KAY GILLISPIE V. DEPT. OF HIGHWAYS 148
TABLE OF CASES REPORTED
Ix
GOOD,
STEVEN D. V. DEPT. OF HIGHWAYS
HAMILTON BUSINESS SYSTEMS v.
DEPT. OF HEALTH
HANON, RETTIE LOUISE v.
DEPT. OF HIGHWAYS
NARRAN, DELTA W. AND EVA KAY HARRAN v.
DEPT. OF HIGHWAYS
HERRON, HELEN V. DEPT. OF HIGHWAYS
HUGHES-BECHTOL, INC. v. BOARD OF REGENTS
HUNT, RONALD L. V. DEPARTMENT OF MOTOR VEHICLES .
IMEGI, ANDREW CHIMEZIE V.
BOARD OF REGENTS
JAJ4ISON, THELMA L. V. DEPT. OF HIGHWAYS
JARRELL, BONNIE FAYE V. DEPT. OF HIGHWAYS
JENKINS, LAWRENCE D. V.
DEPT. OF
CORRECTIONS
JONES, NINA G. V. DEPT. OF HIGHWAYS
JORDAN, DUBOIS V. DEPT. OF HIGHWAYS
KAPLAN, PAULINE R. AND ALLEN
KAPLAN V.
DEPT. OF HIGHWAYS
KESNER, CONSTANCE INDIVIDUALLY AND
CONSTANCE KESNER, AS ADMINISTRATRIX
OF THE ESTATE OF
PHILIP S. KESNER,
DECEASED V. DEPT. OF CORRECTIONS
KNOTTS, MAYNARD INDIVIDUALLY, AND
MAYNARD KNOTTS, AS GUARDIAN AND
NEXT FRIEND OF TRACY KNOTTS, AND
ROBERT KNOTTS, MINORS V.
DEPT. OF HIGHWAYS
LAWHORN, HERMAN F. V. DEPT. OF
VETER?NS AFFAIRS
LEGGETT, FRIEDA AND WILLIAM LEGGETT V.
DEPT. OF HIGHWAYS
LEWIS, CHESTER V. DEPT. OF HIGHWAYS
MANN, SUSAN V. DEPT. OF HUMAN SERVICES
11
36
129
6
39
69
136
96 5 43 127
115 56 138 5 3 44
54
77
X
TABLE OF CASES REPORTED
MARKER, BUFORD E. v. DEPT. OF HIGHWAYS 117
MATTHEW, NADINE J. V. DEPT. OF HIGHWAYS . . 93
MAYS, DALE F. INDIVIDUALLY V.
DEPT. OF HIGHWAYS
77
MCELHENIE, SANDRA PERSONAL
REPRESENTATIVE OF THE ESTATE OF
MARVIN MCELHENIE, DECEASED V.
DEPT. OF HIGHWAYS 142
MCIE, DONNIE LEE V. DEPT. OF HIGHWAYS 79
MCMILLAN, JACK AND VERA V.
DEPT. OF HIGHWAYS .
64
MELLON-STUART COMPANY and KIRBY ELECTRIC
COMPANY V. BOARD OF REGENTS 59
MELVIN, SHELBY B. V. BOARD OF REGENTS 86
MILLER, TOMMY C. V. DEPT. OF HIGHWAYS 20
MINE SAFETY APPLIANCES COMPANY V.
DEPT. OF HIGHWAYS 65
MOORE, JOHN I. AND CHARLENE MOORE V.
DEPT. OF HIGHWAYS 70
MOORE, THEODORE D. III V. SUPREME COURT 11
MORRISON, ROBERT B. V. DEPT. OF
MOTOR VEHICLES 87
MOUNTS, KENNETH AND JANET V.
DEPT. OF HIGHWAYS 7
MULLINS, JOSEPH and DORA MULLINS V.
DEPT. OF HIGHWAYS 90
MURRAY, KAREN S. AND DANIEL J. MURRAY V.
DEPT. OF HIGHWAYS 131
MYERS, CLETON E. V. DEPT. OF HIGHWAYS . . 94
NANCE, HARLEY AND GENEVIEVE NANCE V.
DEPT. OF HIGHWAYS 100
NICKELS, SHARON L. V. DEPT. OF HIGHWAYS 8
PACK, ELMER & JANICE DAILEY V.
DEPT. OF HIGHWAYS 75
TABLE OF CASES REPORTED XI
PADGETT, DEBORAH D. v. DEPT. OF
HIGHWAYS 136
PARSONS, DORSEL D. v. DEPT. OF HIGHWAYS 65
PHILLIPS, GAIL V. DEPT. OF PUBLIC SAFETY 39
PLANTZ, CHARLES G. V.
DEPT. OF
CORRECTIONS 107
PORTER, JACK D. AND JACQUELINE L. PORTER
CAUDILL V. DEPT. OF HIGHWAYS 15
PRIDDY, JOYCE V. DEPT. OF HIGHWAYS . . . . 133
PRITT, RONALD G. AND PEGGY J. PRITT V.
DEPT. OF HIGHWAYS
8
PROTZMAN, TRUDY V. DEPT. OF HIGHWAYS 108
QUEEN, A. E. AND PAULINE QUEEN V.
DEPT. OF HIGHWAYS
66
R. J. CAREY COMPANY, INC. V.
DEPT. OF HEALTH 40
RECTENWALD, ROBERT W. and JEANNE E.
RECTENWALD V. DEPT. OF HIGHWAYS 67
RICHARD, JEFFREY ALAN V.
DEPT. OF EDUCATION 147
ROYAL RESOURCES CORPORATION V.
DEPT. OF HIGHWAYS 134
SAUNDERS, RICHARD D/B/A RICK’S USED
CARS V. DEPT. OF HIGHWAYS 132
SCARDINA, JOE V. DEPT. OF HIGHWAYS . . . 20
SINGLETON, BRADY C. V. DEPT. OF
HIGHWAYS 135
SMITH, JOE L. JR., INC.,
D/B/A
BIGGS-JOHNSTON-WITHROW V. DEPT. OF
EMPLOYMENT SECURITY 45
SMITH, RAYMOND L. V. DEPT. OF HIGHWAYS 82
SNYDER, HOWARD A. V. DEPT. OF HIGHWAYS . . 58
SOLOMON, VICTOR V. DEPT. OF HEALTH . . 21
SPENCE, FRANK AND MARGARET E. SPENCE V.
DEPT. OF HIGHWAYS 71
XII TABLE OF
CASES REPORTED
STAFFILENO, DOMINIC &
MARY L. V.
DEPT. OF
HIGHWAYS 88
STOUT, LOVA M. AND M. WOOD STOUT V.
DEPT. OF
HIGHWAYS 72
STUMPP, HAROLD N. V. DEPT. OF CORRECTIONS 144
SUTPHIN, JOHN H. AND NANCY SUTPHIN V.
DEPT. OF HIGHWAYS 141
SUTTON, DENNIS W. AND LINDA A. SUTTON V.
DEPT. OF HIGHWAYS 95
TACKETT, JERRY ALLEN V.
DEPT. OF HIGHWAYS 118
TAMMY JO HALL-ARTHUR V.
DEPT. OF
HIGHWAYS 16
TAYLOR, ALICE CATHERINE V.
DEPT. OF HIGHWAYS 70
THE LAWHEAD PRESS,
INC. v. GOVERNOR’S
OFFICE OF COMMUNITY AND INDUSTRIAL
DEVELOPMENT 137
THOMAS, PAUL R. V. DEPT. OF
HIGHWAYS 118
TILLEY, CONSTANCE
J. V. DEPT. OF HIGHWAYS . . . 109
TOOLEY, WILLIAM C. DEXTER 0. CALLEN
ALFRED E. KINCAID
PAUL H. THOMPSON
CHARLES H. WALKER (CC-85—144) V.
DEPT. OF
HIGHWAYS 110
TREADWAY, THOMAS V. DEPT. OF HIGHWAYS 101
TRI-CITY WELDING SUPPLY COMPANY V.
DEPT. OF CORRECTIONS 12
UNITED STATES FIDELITY AND GUARANTY COMPANY,
AS SUBROGEE OF CHALMER HARLESS V.
DEPT. OF HIGHWAYS 9
VERES, R. MIKE V. DEPT. OF
HIGHWAYS 13
WALLEN, LARRY 3.
V. DEPT. OF HIGHWAYS 119
WELLS, KAREY LYNN V. BOARD OF REGENTS 139
WESTFALL, 0. L. AND REBECCA WESTFALL V.
DEPT. OF
HIGHWAYS 23
TABLE OF CASES REPORTED XIII
WORXMAN,
WORRELL, DOROTHY SERVING AS NEXT FRIEND
FOR JOHN WORRELL, HER NATURAL
SON V.
DEPT. OF HEALTh 25
WU, PETER E. V. BOARD OF REGENTS 140
YEAGER, INCORPORATED AND YEAGER
FORD
SALES, INC. v. DEPT. OF
HIGHWAYS 30
YEAGER, INCORPORATED AND YEAGER
FORD
SALES, INC. V. DEPT. OF HIGHWAYS 33
Cases Submitted and Determined
in the Court of Claims in the
State of West
OPINION
ISSUED -
AUGUST 6, 1985
AMERICAN
OFFICE SYSTEMS, INC.
VS.
DIVISION OF VOCATIONAL REHABILITATION
(CC—85—226)
No appearance for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAM:
On June 13, 1985, claimant American Office Systems, Inc. filed its Notice of
Claim seeking an award of $500.00 replacement cost for destruction of its 3M
Copier, Model 215BG, in a flood at Williamson, West Virginia, on May 7 and 8,
1984. On August 2, 1985, the Division of Vocational Rehabilitation, as the
respondent agency, filed its Answer thereto admitting the validity of the claim
and requesting the Court to issue an “advisory opinion’ with reference to the
claim. Under West Virginia Code 14-2-8, a state agency may request an advisory
determination. Attached to respondent’s Answer is an ‘Exhibit A” consisting of
Copier Lease/Maintenance Agreement dated June 1, 1983, between claimant and
respondent, pertaining to the lease of numerous copiers at numerous locations
for the period from July 1, 1983 to June 30, 1984, which includes the subject
copier at Williamson. Paragraph numbered 8 of said Agreement reads as follows:
“8. LOSS AND DAMAGE. LESSEE hereby assumes and
shall bear the entire risk of loss and damage to the EQUIPMENT from any and
every cause whatsoever. No loss or damage to the EQUIPMENT or any part thereof
shall impair any obligation of LESSEE under this Agreement which shall continue
in full force and effect. In the event of loss or damage of any kind whatsoever
to any item of EQUIPMENT, LESSEE, at the option of LESSOR, shall: (a) place the
sane in good repair, condition and working order; or (b) replace the same with
like equipment in good repair, condition and working order; or (c) pay to
LESSOR the replacement cost of EQUIPMENT less depreciation.”
Accordingly, the Court is of the opinion, and issues this advisory
determination, that the respondent is legally obligated to the claimant, upon
this claim, in the amount of $500.00.
Award $500.00.
2
REPORTS STATE COURT OF CLAIMS [
OPINION ISSUED
OCTOBER 4, 1985
CHARLES EDWARD ALLEN
VS.
DEPARTMENT OF HIGHWAYS
(CC—B 5—32)
Claimant’s wife appeared in person.
Nancy J. Aliff,
Attorney at Law, for respondent.
PER CURIAI1:
This claim was originally filed in the name of Trish Allen, but when testimony
established that the vehicle, a 1982 Oldsmobile, was titled in the name of
Charles Edward Allen, the Court amended the style of the claim to reflect that
fact.
On January 8, 1985, claimant’s wife, Patricia Ann Allen, was driving on State
Route 152 near
The State is neither an insurer nor a guarantor of the safety of motorists on
its highways. Adkins vs. Sims, 130 W.Va 645, 46 S.E. 2d 81 (1947) . For respondent to be held liable
for defects of this type, the claimant must prove that respondent had actual or
constructive notice of the defect. As there was no evidence of such notice, the
claim must be denied.
Claim disallowed.
OPINION ISSUED
OCTOBER 4, 1985
PHIL CALISE
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—28)
James A. Matish, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
Claimant is a bicycle enthusiast and claims $3,000 for bicycle damage
and personal injury. On August 18, 1984, he was riding his bicycle northerly on
U.S. Route 19 beneath a U.S. Route 50 overpass at
In the presentation of his case, it was intimated, but not proven, that the
sewer grating was incorrectly installed; that it should have been installed
with the grate openings perpendicular to the edge of the highway.
The Court has consistently held that the State is neither an insurer nor a
guarantor of the safety of persons travelling on its highways. Adkins vs.
Sims, 130
Claim disallowed.
OPINION ISSUED OCTOBER 4, 1.985
WILLIAM H. CLAY
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—2l9)
Claimant appeared on its own behalf.
Nancy J. Aliff, Attorney at Law, for repondent.
PER CURIAN:
On June 6, 1984, William H. Clay was operating his 1976 Buick Limited north on
Route 52 from Kermit to
Mr. Clay testified that he had observed rock slides in the area of Route 52 on
prior occasions when it rained. He further testified that he talked to the
Wayne County Maintenance Superintendent after this accident.
There is no evidence that the respondent knew or should have known of an
unusually dangerous condition. Prom the record, there is no showing
4
REPORTS STATE COURT OF CLAIMS [
of negligence on the part of the respondent, and accordingly, the Court
disallows this claim. See Bolyard vs. Department of Highways, 12 Ct. Cl.
344 (1979), and Ashley vs. Department of Highways, 14 Ct. Cl. 174 (1982)
Claim disallowed.
OPINION ISSUED
OCTOBER 4, 1985
REXELL C. FREEMAN AND JOYCE FREEMAN
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—244)
Claimant appeared in
person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant was operating his 1979 Plymouth Horizon on Route 92 near Montsville,
After carefully reviewing the record, this Court is of the opinion that the
placing of an unsecured plate on the bridge was negligence on the part of the
respondent. The claimant has been reimbursed by his insurance company for the
estimated repair costs of the vehicle. Claimant repaired the vehicle himself
and, in actuality, experienced no monetary loss as a result of the accident. As
no claim has been established by the claimant, the Court must deny the claim.
Claim disallowed.
OPINION ISSUED OCTOBER 4, 1985
STEVEN D. GOOD
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—283)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIP,N:
Claimant alleges in his Notice of Claim that on October 19, 1984, at
approximately 7:00 p.m., he was travelling east on Route 64 near
At the hearing, claimant testified that construction was being done on the
bridge. Cement barriers had been erected on both sides of the single lane. As
claimant crossed the bridge, his 1980 Toyota Celica struck the hole. Claimant
testified that he did not see the pothole until he struck it. He had travelled
the same route a week before the accident, and had not observed the pothole at
that time.
In order for liability to exist on the part of the respondent, it must be shown
that the respondent had actual or constructive notice of the hazard which
caused the damage.
therefore, negligence has not been established, and the claim must be denied.
Claim disallowed.
OPINION ISSUED OCTOBER 4, 1985
ANDREW CHIMEZIE IMEGI
Vs.
BOARD OF REGENTS
(CC—85—6)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAM:
6
REPORTS STATE COURT OF CLAIMS [W.Va.
Claimant was a student resident of Arnold Apartments of West Virginia
University from June 1983 to May of 1984. He resided in
At some time in March or May of 1984, claimant found that his assigned storage
cubicle had been taken over by another student resident and that his previously
stored belongings were missing. Upon inquiry, he was advised that the cubicle
had been found empty and unsecured and had been reassigned. In May of 1984,
finding a storage cubicle empty and unsecured, he had placed some of his
belongings in that cubicle, without having it assigned to him, and later he
found that those belongings were gone.
His testimony proved nothing but his suspicions that his property, on both
occasions, had been disposed of by apartment management personnel.
There being no evidence of responsibility of the University for safekeeping of
claimant’s property, nor of any negligence or willful misconduct on the part of
the University, this claim for $1,000 is disallowed.
Claim disallowed.
OPINION ISSUED
OCTOBER 4, 1985
PAULINE R. KAPLAN
AND ALLEN KAPLAN
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—339)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAI’4:
This claim was originally titled in the name of Allen Kaplan, but when the
evidence established that the vehicle, a 1984 BMW 3l8i, was titled in the joint
names of Allen Kaplan and Pauline Ruth Kaplan, the Court amended the style to
reflect that fact.
Claimant alleged in his Notice of Claim that on December 10, 1984, at
approximately 7:00 p.m., he was travelling east on Route 60 in Huntington, West
Virginia, when his vehicle struck a pothole. Damage to the tire, tire rim and
the cost of alignment was estimated at $420.00, but claimant did not produce
any receipts or other proof of damages.
At the hearing, the claimant testified that there was water standing on the
highway, and that he did not see the pothole before he struck it. The claimant
did not have any personal knowledge of how long the pothole had been in
existence.
In order for liability to exist on the part of the respondent, it must be shown
that the respondent had actual or constructive notice of the hazard which
caused the damage.
therefore no negligence has been established, and the claim must be denied.
Claim disallowed.
OPINION ISSUED OCTOBER 4, 1985
KENNETH AND JANET MOUNTS
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—40)
Claimant’s daughter, Jana Lynn Mounts, appeared in person. Nancy J. Aliff,
Attorney at Law, for respondent.
PER CURIAN:
This claim was originally filed in the name of Jana Lynn Mounts, but when the
testimony established that the vehicle was titled in the names of her parents,
Kenneth and Janet Mounts, the Court amended the style of the claim to reflect
that fact.
On December 22, 1984, claimant’s daughter, Jana Lynn Mounts, was driving on
Route 60 East near Barboursville, in
The State is neither an insurer nor a guarantor of the safety of motorists on
its highways. Adkins vs. Sims, 130
8
REPORTS STATE COURT OF CLAIMS [
notice of the defect. As there was no evidence of notice, the claim must be
denied.
Claim disallowed.
OPINION ISSUED
OCTOBER 4, 1985
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—3l7)
J. Timothy Poore, Attorney at Law, appeared for claimant. Nancy J. Aliff,
Attorney at Law, for respondent.
PER CURIAM:
Claimant was travelling east on 1—64 in
Charles A. Shaver of the West Virginia Department of Highways testified that
the accident location had been under construction for resurfacing work by State
Construction, Inc., an independent contractor. This Court has held previously
that the respondent cannot be held liable for the negligence, if any, of an
independent contractor. See Paul vs. Department of Highways, 14 Ct. Cl.
479 (1983); Harper vs. Department of Highways, 13 Ct. Cl. 274 (1980); Safeco
Insurance Company vs. Department of Highways, 9 Ct. Cl. 28 (1971) . Accordingly, the Court disallows
this claim.
Claim disallowed.
OPINION ISSUED
OCTOBER 4, 1985
RONALD G. PRITT AND PEGGY J. PRITT
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—76)
Ronald G. Pritt appeared for claimants.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIPN:
This claim was originally filed in the name of Ronald G. Pritt, but when
testimony established that the vehicle, a 1984 Dodge Dart, was titled in the
names of both Ronald G. and Peggy J. Pritt, the Court amended the style of the
claim to reflect that fact.
On February 7, 1985, claimant was driving on Route 60 East in
The State is neither an insurer nor a guarantor of the safety of motorists on
its highways. Adkins vs. Sims, 130 W.Va 645, 46 S.E. 2d 81 (1947). For
respondent to be held liable for defects of this type, the claimant must prove
that respondent had actual or constructive notice of the defect. As there was
no evidence of notice, the claim must be denied.
Claim disallowed.
OPINION ISSUED OCTOBER 4, 1985
UNITED STATES FIDELITY AND GUARANTY
COMPANY, AS SUBROGEE
OF CHALMER
HARLESS
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—337)
K. Paul Davis, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAN:
On October 17, 1984, at about 10:00 p.m., a son was driving the 1980 Oldsmobile
Cutlass of Chalmer Harless on Route 60/2 near St. Albans in
The driver testified that he did not see the rock before hitting it. He had
travelled the same route earlier that day. He thought he had observed the rock,
but could not be sure, and he had no personal knowledge of how long it had been
in existence. Susan Cress, a neighbor, testified that she had observed the rock
prior to the accident, but she had not notified the respondent.
The State is neither an insurer nor a guarantor of the safety of persons
travelling on its highways. Adkins vs. Sims, 130
10
REPORTS STATE COURT OF CLAIMS [
actual or constructive notice of the defect in the roadway. Since there was no
proof in this case that the State had notice of the defect, the claim must be
denied.
Claim disallowed.
OPINION ISSUED OCTOBER 25, 1985
WALTER J.
VS.
DEPIRTMENT OF HIGHWAYS
(CC—85—30)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant, Walter Jasper Davis, alleges in his Notice of Claim that on January
25, 1985, at approximately 5:45 p.m., claimant’s son, Walter Jay Davis, was
travelling on
At the hearing, claimant’s son testified that at the time of the incident, it
was snowing, the road was slick, and traffic had halted as a result of the
inclement weather. Claimant’s son stated that the truck passed him three times,
dispensing cinders, and that on the third time the cinders struck his vehicle.
Claimant’s son ascertained that the truck was respondent’s vehicle, as he
observed that there was a logo on the truck which identified it as a vehicle of
the Department of Highways.
The Court is of the opinion that the claimant has established that the truck
was owned and operated by the respondent, and that its driver was operating it
negligently under the prevailing conditions, and therefore makes an award to
the claimant in the amount of $246.75. Sage v. Dept. of Highways, 14
Ct.Cl. 68 (1981)
Award of $246.75.
OPINION ISSUED
OCTOBER 25, 1985
LAWRENCE D.
JENKINS
VS.
DEPARTMENT OF CORRECTIONS
(CC—84—192)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIP,M:
On May 6, 1984, a 1971 Ford LTD Sedan belonging to the claimant,
Lawrence D. Jenkins, was stolen from his residence in Salem, West
Virginia, by two escapees from the West Virginia Industrial Home for
Youth. At the time of the theft, the vehicle was unlocked and the keys
were in the car. Claimant seeks $800.00, the value of the vehicle.
In order for the claimants to recover in this case, negligence on the
part of the respondent must be shown to be the proximate cause of the
loss suffered by the claimants. Lepera v. Dept. of Corrections, 13
Ct.Cl. 49 (1979)
No evidence has been presented to show that the respondent acted in a negligent
manner. Claimant has asserted that respondent was negligent in permitting the
escape of the youths to occur; however, there is no support of that assertion
in the record.
The Court is of the opinion that negligence on the part of the respondent has
not been proven. Even if such negligence had been shown, it would not be
considered the proximate cause of the loss of claimant’s vehicle. Claimant
testified that the keys had been left in the vehicle. As this negligent act was
the proximate cause of the loss of the vehicle, the claim must be denied.
Claim disallowed.
OPINION ISSUED
OCTOBER 25, 1985
THEODORE D. MOORE,
III
VS.
SUPREME COURT
(CC—84—242)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURI1N:
12
REPORTS STATE COURT OF CLMMS [W.Va.
Claimant filed this action to recover a witness fee and mileage costs for his
appearance in Magistrate Court in Cabell County, West Virginia, on June 13,
1984. Claimant appeared for the defendant, Tony Cook, and travelled from
Claimant testified that the defendant, Tony Cook, called him as a witness. He
further testified that Mr. Margolin, the defense attorney, handed him the
subpoena. Mr. Alvie Qualls, the Presiding Magistrate in the Tony Cook case,
testified that a defendant may supply the Court with a financial affidavit
verifying the defendant’s inability to pay Court costs. The State of
With regards to the issue of jurisdiction, the law is quite clear concerning
claims which cannot be brought before the Court. West Virginia Code §14—2—14
provides:
“The jurisdiction of the Court shall not extend to any claim.... With respect
to which a proceeding may be maintained against the State, by or on behalf of
the claimant in the Courts of the State.”
As Mr. Moore is able to pursue payment of witness fees and mileage costs
through a financial affidavit filed in
Claim disallowed.
OPINION ISSUED OCTOBER 25, 1985
TRI-CITY WELDING SUPPLY COMPANY
VS.
DEPARTMENT OF CORRECTIONS
(CC—84—335)
David C. Simmons appeared on behalf of claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAM:
Claimant company has supplied cylinders to the
Claimant company’s representative, Daniel C. Simmons, testified that he could
not establish by date or serial number the time of delivery of the eight
missing cylinders to the school by Tn—City. Claimant company’s representative
agreed that he could not provide proof of the age of each missing cylinder. Mr.
Simmons provided the Court with the replacement costs only of the cylinders,
and was not aware of the actual
cost of the eight missing cylinders, nor could he document the date when the
missing cylinders were lost. Furthermore, the record shows that the balance of
missing cylinders was created in 1975. Mr. Simmons lacks signed receipts
showing delivery of cylinders for the 1975 time period.
Mr. Paul Gabel, Deputy Superintendent of the school testified that in closing
out accounts, he discovered that there were in existence neither delivery slips
nor serial numbers for the missing tanks.
It is the Court’s opinion that the facts as presented do not support the
claimant’s claim by a preponderance of the evidence. Accordingly, the Court
disallows the claim.
Claim disallowed.
OPINION ISSUED OCTOBER 25, 1985
R. MIKE VERES
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—80)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
Claimant was operating his Ford van, pulling his boat on a trailer on Route 44
in the direction of
At the hearing, claimant testified that he did not see the holes before he
struck them. He had travelled the same route ‘daily, and said, “I probably have
seen them but not to recall them being there.”
In order for liability to exist on the part of the respondent, it must be shown
that the respondent had actual or constructive notice of the hazard which
caused the damage.
Claim disallowed.
14
REPORTS STATE COURT OF CLAIMS [
OPINION ISSUED OCTOBER 30, 1985
TERESA R. ALT OMARE AND SAMUEL
ALTOMARE
VS.
DEPARTMENT OF HIGHWAYS
(CC—77— 111)
William B. Carey, Attorney at Law, for claimant.
Henry C. Bias, Deputy Attorney General,
for respondent.
WALLACE, JUDGE:
On July 7, 1975, claimant, Teresa R. Altomare, accompanied by her daughter-in-law and sister—in—law,
was driving a 1969 Oldsmobile station wagon belonging to both claimants in a
northerly direction on W.Va. Route 7, also known as South Fork Road, entering
the town of Moorefield, West Virginia. At a point near the intersection of
I started driving and
drove down on this beautiful highway and all of a sudden I felt a quiver in the
steering wheel like, you know, and I had power brakes and I just tried to tap
them a little bit so I could come to a safe stop but what happened was that I
pulled over and the car veered to the right and the ditch was there and I just
went over and I thought I went over, I don’t know how cars, how things happen.
I’m not familiar with that but I went over and landed on.the wheels straight
up.
Claimant sustained permanent injuries from the accident and seeks an award of
$750,000.00. Claimant alleged that the respondent was negligent for failing to
maintain the drainage ditch in proper condition and for failing to install a
guard rail between the road and drainage ditch.
Eugene Brand,
From the record, there was no evidence of negligence on the part of the
respondent presented which was the proximate cause of the accident. Neither the
maintenance of the drainage ditch nor the lack of a guard rail caused the
accident. The drainage ditch was maintained as any other in this State, and the
guard rail standards were followed. Accordingly, the Court is of the opinion to
and does disallow the claim.
W.Va.J
REPORTS STATE COURT OF CLAIMS 15
Claim disallowed.
OPINION ISSUED NOVEMBER 14, 1985
JACK D. PORTER AND JACQUELINE L. PORTER CAUDILL
VS.
DEPARTMENT OF HIGHWAYS
(CC—82--305)
Claimant, Jacqueline L. Porter Caudill, appeared in person. Nancy J. Aliff,
Attorney at Law, for respondent.
GRACEY, JUDGE:
The claimants, father and daughter, seek an award of $10,020.00. This is the
total amount of a project proposed by a contractor and includes:
Block wall construction $6,870.00
Existing Driveway Drain Relocation550.00
Excess Dirt Removal on the LawIQO.00
Compacted Asphalt Gutter Between the
Existing Road and the New Walll,500.O0
Cleanup and Stone Placement for the
Gutter and Wall 680.00
Their property is located on County Route 7, also known as Spring Valley Drive,
in Wayne County. Jacqueline L. Porter Caudill is the owner of the property. Her
father, Jack D. Porter, has a dower interest. The property consists of two
lots, and a house which was built around 1936 or 1937. The house faces to the
South, onto
Claimant, Jacqueline L. Porter Caudill, testified that there is water runoff
from
Jonathan N. Fowler, a profes5ional engineer, examined the property in question
for the claimants. He testified that in his opinion, the inadequate storm sewer
was the major cause of the damage to claimants’ property. He also stated that
inadequate ditch lines on
16
REPORTS STATE COURT OF CLAiMS [
across
James Robert Campbell, an engineer employed by respondent, testified that while
the ditch lines were not well maintained, the primary causes of claimants’
water problems were the location of the land in a natural drainage area, and
the inadequately designed storm sewer on claimants’ property. He stated that he
could find no record as to when or by whom the sewer was installed.
In view of the evidence presented, the Court can find no basis to hold the
respondent liable for claimants’ damages. The expert witnesses testified that
the primary cause of the water flowing onto the land, the low point of some
eleven acres, was the inability of the storm sewer to carry the surface water
away. No evidence was presented to establish that the sewer was either designed
or maintained by respondent.
It is not the function of this Court to make an award for such a proposed
project. Rather, this Court considers damages incurred, and if incurred by
reason of some act or omission of a State agency, then an appropriate award may
be made. This is not a claim for such damages. Although evidence was presented
that flowing surface water had damaged claimants’ yard and had flooded the
basement of claimants’ dwelling house, no evidence was presented of the amount
of monetary damages to the claimants’ property. Accordingly, the Court is of
opinion to disallow the claim.
Claim disallowed.
OPINION ISSUED NOVEMBER 19, 1985
TPNMY JO HALL-ARTHUR
VS.
DEPARTMENT OF HIGHWAYS
(CC—79—568)
John R. Glenn, Attorney at Law, for claimant.
Nancy J. Aliff,
Attorney at Law, for respondent.
WALLACE, JUDGE:
On December 9, 1978, the claimant was a passenger in a Chevrolet Luv truck
operated by Robert Gene Wallace. It was snowing, and as they drove at
approximately 20 mph over the
right leg.
The claimant alleges that the failure of the respondent to remove the snow and
ice from the bridge was negligence and that this negligence was the proximate
cause of her injuries. She seeks an award of $100,000.00.
The respondent alleges that the
During the course of the hearing it developed that the claimant had settled
with Robert Wallace’s insurance company for $50,000.00. The Court requested
that the release be filed with the Court, which was done. There were actually
two releases executed, each for the consideration of $25,000.00, releasing the
owner and operators of the truck. The releases provided among other things that
the claimant
released and discharged... all other persons, firms, and corporations, both
known and unknown, of and from any and all claims, demands, damages, actions,
causes of action, or suits at law or in equity, of whatsoever kind or nature,
for or because of any matter or thing done, omitted or suffered to be done by
anyone prior to and including the date hereof on account of all injuries both
to person or property resulting, or to result, from an accident which occurred
on or about the 9th day of December, 1978, at Logan, W. Va.
The releases did not exempt the respondent.
After the releases were filed with the Court, the respondent filed its Motion
to Dismiss. The Motion was heard on January 17, 1983, after which the parties
requested tine to file briefs in support of their respective positions.
The Court after consideration of the record, finds that the releases
do in fact release the respondent and sustains respondent’s Motion to
Dismiss. Drema Gail Hopson, et al. v. Dept. of Natural Resources, 10
Ct.Cl. 8 (1973) .
See also Doganieri
v. United States, 520 F. Supp.
1093, (N.D.W.Va. 1981)
Motion sustained.
OPINION ISSUED
NOVEMBER 19, 1985
OLIVE CRADDOCK
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—286)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
18
REPORTS STATE COURT OF CLAIMS [
On October 11, 1984 at about 11:00 a.m. claimant olive Craddock was operating
her 1977 Chevrolet west on Route 10,
Charles Shaver, construction engineer for respondent on the project, testified for
respondent. Mr. Shaver stated that an independent contractor, Barboursville
Bridge Company, was responsible for the work on the project. The only employees
of the respondent at the site were a supervisor and an inspector.
The record in this case does not establish any negligence on the part of the
respondent. Barboursville Bridge Company was an independent contractor. This
Court has previously held that the respondent cannot be held liable for the
negligence, if any, of an independent contractor. Paul v. Dept. of Highways 14
Ct.Cl. 479 (1983); Harper v. Dept. of Highways 13 Ct.Cl. 274 (1980); Safeco
Insurance Co. v. Dept. of Highways 9 Ct.C1. 28 (1971). Accordingly, this
claim must be disallowed.
Claim disallowed.
OPINION ISSUED
NOVEMBER 19, 1985
EUGENE R. EDWARDS,
JR. AND MARTHA E. EDWARDS
VS.
DEPARTMENT OF HIGHWAYS
(CC—80—298)
H. Truman Chafin, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
WALLACE, JUDGE:
The claimant Eugene R. Edwards, Jr. was involved in an automobile accident on
Route 44 pear Sara Ann,
At the pre—trial hearing held on May 27, 1981, it was disclosed that the claimants
had brought suit against Ada B. Blackburn and Jerry Lee Blackburn which was
settled and a release had been executed by the claimants. The Court requested
that the release be filed with the
Court, which was not done. The case was heard on June 24, 1982, after which the
Court again requested that it be furnished the release. The release was
furnished subsequent to the hearing and on September 17, 1982, respondent filed
a Motion to Dismiss on the grounds that the claimants executed a release of all
claims for a valuable consideration of $50,000.00. The release stated in part,
that the claimants forever released Jerry Lee Blackburn and Ada B. Blackburn
and any other person, partnership, firm or corporation charged or chargeable
with responsibility or liability, . . . from any and all claims, demands, damages, costs,
expenses, loss of services, actions and causes of actions arising from any act
or occurrence, up to the present time, and particularly on account of all
personal injury, disability, property damage, lose of services and loss or
damages of any kind sustained or that we or either of us hereafter may sustain
in consequence of an accident that occurred on or about the 22 day of January
1980, at or near Junction of Rt. 44 and U.S. 52 Sara Ann, W. Va.
The respondent alleged that the release failed to exempt the State of West
Virginia, and therefore, by its terms, released the respondent.
The claimant’s filed a Motion Contra to Respondent’s Motion to Dismiss on
September 28, 1982.
The Court held a hearing on the Motion to Dismiss on January 17, 1983, after
which a briefing schedule was established in which respondent was given thirty
days to file its brief, then the claimants had twenty days to file their reply
brief, after which respondent had an additional ten days to reply to claimants.
Respondent’s brief in support of its motion was filed on February 23, 1983.
Claimant’s opposition memorandum was filed with the Court on February 5, 1985,
followed by respondent’s reply brief on March 5, 1985.
The claimants contend, among other things, that respondent’s Motion to Dismiss
was not timely filed and further that the release executed by the claimants did
not release the respondent.
After consideration of the record and the briefs and memorandum filed on behalf
of both parties, the Court is of the opinion that claimant’s contention that
respondent’s Motion to Dismiss was not timely filed, is without merit and that
the release executed by the claimants did not exempt the respondent. The
broadly worded release not only released the Blackburns, but extended to any
other person, partnership, firm or corporation.’ Drema Gail Hopson, et al.
v. Dept. of Natural Resources, 10 Ct.Cl. 8 (1973). See also Doganieri v.
United States, 520 F. Supp.
1093, (N.D.W.Va. 1981)
Accordingly, the Court finds that the release releases the respondent and
sustains the Motion to Dismiss.
Motion sustained.
20
REPORTS STATE COURT OF CLAIMS [
OPINION ISSUED
NOVEMBER 19, 1985
TOMMY C. MILLER
VS.
DEPARTMENT OF HIGHWAYS
(CC— 85-42
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On December 26, 1984, the claimant was driving his 1985 Dodge Ram pickup truck
on Route 85 on
While the respondent is not an insurer of the safety of motorists using the
highways of the State, it does have the affirmative duty of using reasonable
care for their safety. Although there was no direct evidence that the
respondent had actual knowledge of the existence of this defect, the Court is
of the opinion that it did have constructive notice. The size of the pothole is
indicative of its presence for a substantial period of time prior to the date
of this incident. See Stone v. Dept. of Highways, 12 Ct.C1. 259 (1979) . The Court hereby makes an award to
the claimants in the amount of $216.55.
Award of $216.55.
OPINION ISSUED NOVEMBER
19, 1985
JOE SCARDINA
VS.
DEPARTMENT OF HIGHWAYS
(CC—S 4—250)
Nancy Jane Scardina, appeared on behalf of claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
This claim was originally filed in both the names of Joe Scardina and Nancy
Jane Scardina, but when testimony established that the damaged vehicle, a 1973
Plymouth, was titled solely in the name of Joe Scardima, the Court amended the
style of the claim to reflect that fact.
Nancy Jane Scardina, claimant’s wife, was operating the vehicle in a northerly
direction on Route 19, in
James M. Beer, II, respondent’s Area Maintenance Engineer for Monongalia,
Preston and
The Court perceives no negligence on the part of the respondent. It is the
opinion of the Court that when Mrs. Scardina voluntarily backed the car into
the patch of weeds three or four feet tall, she assumed the risk that
something, hidden from her view by the weeds, might be there.
Claim disallowed.
OPINION ISSUED NOVEMBER 19, 198.5
VICTOR SOLOMON
VS.
DEPARTMENT OF HEALTH
(D— 736)
Claimant appeared in
person.
Henry C. Bias, Jr., Deputy Attorney General; J. Bradley Russell, Assistant
Attorney General; and Edgar Bibb, Assistant Attorney General; for Respondent.
GRACEY, JUDGE:
22
REPORTS STATE COURT OF CLAIMS [W.Va.
The notice of claim was filed on March 11, 1974, by Victor Solomon, claiming
damages of $36,000 incident to refusal of the respondent to grant him a permit
for a landfill in Monongalia County. Claimant alleged a loss of income of
$21,000 from July 1972 to the date of filing and a loss of future income of
$15,000.
The claim was set for hearing on five occasions from 1974 to 1977. Each time,
the hearing was continued upon claimant’s request or by mutual agreement. At
the conclusion of the hearing at
For several years prior to the filing of his claim, Victor Solomon, by permit,
had operated a landfill in the area known as
Subsequently, in 1976, the land in question appears to have been leased to the
Monongalia County Commission for five years. In September of 1981, it appears
that Solo Enterprises, a
During the years, from 1972 to 1983, it appears that the matter of a sanitary
landfill permit, for Victor Solomon or Solo Enterprises, has
been the subject of litigation in the Circuit Courts of Monongalia and Kanawha
counties. Generally, the claimant, Victor Solomon, has in this action alleged
and attempted to prove discrimination on the part of the respondent in several
ways. For instance, he complains of the length of time taken by the respondent
in processing his application of 1972. He complains that a competing landfill
operation of the City of
The Court is of the opinion that the claimant has not proven such
discrimination by a preponderance of the evidence, and must deny the claim.
Claim disallowed.
OPINION ISSUED NOVEMBER 19, 1985
0. L. WESTFALL AND REBECCA WESTFALL
VS.
DEPARTMENT OF HIGHWAYS
(CC—80—l44)
Nary Blasingim, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
LYONS, JUDGE:
The claimants are the owners of a house and lot which are adjacent to
Ray Kesling, a building contractor, testified that he entered into a contract
with 0. L. Westfall in mid 1974 to construct the residence. He stated that he
placed reinforcing bars in the cinder block wall that was on the side of the
house which faced the slope. He put french drains around the back wall, and
down both sides. He waterproofed the areas of the house which were underground.
To facilitate the building process, Mr. Kesling excavated an area four feet in
height at the back of the house. He complied with the FHA regulation requiring
at least a 5 percent minimum slope of all ground fill around any house. He did
not
24
REPORTS STATE COURT OF CLAIMS [
see the house again until 1978, after the slide had occurred. He found the
house to be a “disaster.’ He recommended tearing it down.
Claimant, 0. L. Westfall, testified that he had lived in the area where his
house was built for approximately fortyfive years. He further testified that
the house was completed in October, 1974. After completion of the house, he did
not experience any problems as to the movement of earth around the house. He
said that there was water standing consistently in the ditch on the upper side
of Route 31. In 1977 he made a request that Ray Brewer, the Road Commissioner
of Putnam County, rectify the matter, but no action was taken at this time.
Within six months of the request, respondent sent a crew to perform work on
Route 31. For a period of four or five days the crew pulverized the surface of
the road. In March of 1978, claimant observed a crack in the wall of the
carport of his home. He also noticed that the hill was moving. He solicited the
aid of a friend who worked with a bulldozer in an attempt to make repairs for a
12 hour period. At this time, the doors of the house were beginning to stick,
and the carport wall had fallen in. The slide continued for approximately
forty—eight hours. Photographic evidence shows the trees which slid toward the
residence, the slippage of the road, and other damage to the property.
Sam Mayberry, a real estate appraiser, estimated the value of claimants’
property currently to be $12,500. He estimated that the value of the property
prior to the slippage was $55,000 to $60,000.
Craig Lyle, a civil engineer, testified that the damage to the property was the
result of a slide. He stated that the primary cause of the slide was the
improper maintenance of the drain along Route 31, but that there were other
factors involved including the amount of rainfall in the area. The location of
the house with regard to the slope movement indicated that the excavation for
the construction of the house was not the primary cause of the landslide. The
fact that the soil was very soft indicated that the water had not dissipated
out of the soil which condition contributed to the slide.
Marlin Davis, a maintenance assistant with respondent, testified that in 1977
the respondent scarified the blacktop of Route 31, and established a reasonable
grade. He explained that scarifying entailed taking the existing asphalt, the base,
using scarifier blades on the grader, breaking it up into smaller pieces and
using that as the existing base. He stated that this scarifying process should
have protected the property below the road. He admitted that, “Like I say slide
areas, normally water creates them.”
Barney Stinnet, a soils engineer with respondent, testified that he was
familiar with the topography of claimants’ property. He stated that he believed
the primary cause of the slide to be the construction which took place on the
lower part of the slope. He explained that because claimants’ property is in a
landslide area, it does not take much to retrigger a landslide. Water stood in
the ditch line year round. The construction of the house at the toe of the
slope added weight to that
particular area. This could have caused a rerouting of the flow of the surface
water. As a result, the soil strength could have been reduced which would cause
the lateral stability of the entire hillside to be reduced.
After careful review of all the evidence presented, the Court is of the opinion
that the damage to claimants’ property resulted from several factors. Water
stood in the ditch line rather than draining away from the road. Rainfall
increased the level of water in the ditch lime. It is evident that the
respondent’s actions further aggravated the condition. It is the opinion of the
Court that respondent was negligent in its maintenance of Route 31 in the
vicinity of claimants’ property. Claimants evidence indicates that the value of
the property today is $12,500.00, and immediately before the slide the value
was estimated to be between $55,000.00 and $60,000.00. After deducting the
$12,500.00 from the $55,000.00, the lower estimate of value, the Court finds
damages to the claimant in the amount of $42,500.00.
The Court makes an award to the claimant in the amount of $42,500.00. Award of
$42,500.00.
OPINION ISSUED NOVEMBER 19, 1985
DOROTHY WORRELL, SERVING AS NEXT
FRIEND FOR JOHN WORRELL, HER NATURAL
SON
VS.
DEPARTMENT OF HEALTH
(CC— 85—49)
Claimant appeared in
person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIPN:
This claim was originally filed in the name of John Worrell, but when the
testimony established that John worrell was seventeen years of age, the Court
amended the style of the claim to include the name of Dorothy Worrell, his
mother, as next friend for John Worrell.
John Worrell was confined to
“I authorize storage of the following items during my residency at Adolescent
Services and understand that the facility is not responsible for any damage
and/or loss of my personal property.”
26
REPORTS STATE COURT OF CLAIMS [W.Va.
Worrell eloped from the hospital in May, 1984, and he did not return until
December 19, 1984. when he came to recover his personal possessions. Robert
Schacht, a social worker at
The Court is of the opinion that the bailment agreement signed by worrell
specifically absolved the Lakin facility of liability. Accordingly, the Court
disallows the claim.
Claim disallowed.
OPINION ISSUED DECEMBER 3, 1985
CARL M. GEUPEL CONSTRUCTION COMPANY, INC
VS.
DEPARTMENT OF HIGHWAYS
(CC—82—200)
Wayne A. Sinclair, Attorney at Law, for claimant.
Robert F. Bible, Attorney at Law, for respondent.
PER CURIP,M:
Claimant, Carl M. Geupel Construction Company, Inc. entered into a contract
with the respondent, West Virginia Department of Highways, designated as
Project 1—79—1(14)21, for the construction of a section of 1—79 in Roane
County, West Virginia. Notice to proceed was given to the claimant on May 7,
1970, and the scheduled completion date was September 30, 1972. Claimant
experienced several delays during construction when slides occurred on the
project. The delays resulted in an actual completion date for the project in
October, 1974. This two—year delay resulted in alleged damages to claimant in
the amount of $577,068.35, for which this claim was filed.
The first major delay occurred during the summer of 1970 when a partially
completed embankment section suddenly slid as a result of a foundation failure.
Several months elapsed before respondent instructed claimant as to required
correction work which could not be done in the winter months. Further
foundation failures occurred throughout the construction of the embankment
which was not completed until March, 1972.
The respondent was required to redesign the foundation undercut in another area
of the project resulting in further delay to claimant.
The longest delay on the project occurred when the project supervisor for the
respondent ordered claimant to cease work in an area where
W .Va.]
REPORTS STATE COURT OF CLAIMS
27
bedrock
was not encountered at the elevation shown on the plans. Various circumstances
delayed the preparation of the revised drawings by the respondent. Once the
change order for the work was prepared, an additional delay was experienced
because the respondent had not acquired the right—of—way needed for the
revisions. As a result of these delays, the corrective work could not begin
until January of 1973.
The claimant and respondent stipulated that there were numerous slides which
had an impact on the time required for the construction of the project. Also
the original plans on which claimant based its bid were inadequate as to
design. The major reason for the inadequate design was the inadequate and
erroneous sub—surface investigation of the foundations upon which the design
was based. The parties also stipulated that claimant and its subcontractors
incurred increased costs in the form of labor, materials, equipment, and
overhead as follows:
CARL
N. GEUPEL CONSTRUCTION
Labor:
Foreman
Superintendent and Time
Keeper
Direct Labor & Fringe
Benefits
Total Labor
Material & Supply:
Ready Mix Cement
Field Office and Utilities
DOE Field Office
Total Material & Supply
Total Increase—Prime Contractor
B&O Tax 2.2%
PRIME CONTRACTORS SUBTOTAL
HIGHWAY PAVING-SUBCONTRACTOR
Direct Labor Cost
Payroll Tax and Insurance
Fringe Benefits
B & 0 Tax 2.2%
GRC CONSTRUCTION COMPANY
Payroll Increases
Material Increase
BLACK ROCK CONTRACTING
Labor Cost Increase
$ 3,675.41
8,713.32
126,992.33
$139,381.06
$ 1,228.94
10, 994.21
5,961.17
$ 18,184.32
$157,565.38
3,466.44
$161, 031.82
$ 22,377.22
2,613.66
2,089.68
595.68
$ 27,676.24
$ 5,005.05
4,538.06
$ 9,543.11
$ 22,294.81
28
REPORTS STATE COURT OF CLAIMS [W.Va.
Total Increase Subcontractors $ 59,514.16
Prime Contractor B & 0
Tax 2.2% 1,309.31
TOTAL SUBCONTRACTOR $
60,823.47
TOTAL PRIME CONTRACTOR $161,031.82
TOTAL JOB INCREASE $221,855.29
The Court, having considered the facts and damages, as stipulated, is of the
opinion to make an award to the claimant in the amount of
$221, 855.29.
Award of $221,855.29.
OPINION ISSUED
DECEMBER 19, 1985
JIMMIE A. AND EULA R. CURRENCE AND
LOREN AND RELLA CURRENCE
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—ll6 & CC—84—ll7)
Richard W. Cardot,
Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
LYONS, JUDGE:
The claims of Jimmie A. and Eula R. Currence and Loren and Rella Currence were
consolidated for the purpose of hearing. A motion to bifurcate the hearing was
sustained by the Court. The claims were heard as to the matter of liability
only. On June 13, 1982, claimants Jimmie Currence and Loren Currence were
traveling in a 1978 Dodge van from their home in
Claimant, Loren Currence, testified that he was the operator of the Dodge van
on the date of the accident. He indicated that the sun was shining and that the
road was dry. He and his brother, Jimmie Currence, who was seated in the right
front passenger seat, were traveling to
W.Va.J
REPORTS STATE COURT OF CLAIMS 29
Truman H. Daniels was the operator of the van which hydroplaned and struck the
van operated by Loren Currerice.
Marvin G. Murphy, a civil engineer with the respondent, testified that the
respondent had performed work in the area in which the accident occurred. A
property owner, Mr. Baxa, had complained about water flowing onto his property
from U.S. Route 33. In response to his claim, the respondent re-ditched the
under side, or westbound side, of U.S. Route 33, cleaned the ditch and
installed a pipe through a driveway, and constructed a ditch into a natural
drain below or next to Mr. Baxa’s barn. This work was performed to solve a
problem of drainage or water on the Baxa property. This work was performed in
September 1980. Mr. Murphy also testified that there were no further water
problems at this location (the Baxa property) until the date of the accident
involving the claimants. Upon questioning as to the reason for the water
remaining on the highway on the date of the accident, Mr. Murphy stated that
“(T)he water should not have remained on the highway unless there was an obstruction
or something that blocked the pipe.’ He also testified that there was no
particular schedule for inspecting and cleaning drainage structures for a
particular area.
Wayne J. Simmons, a former U.S. Postal Service Rural Route Carrier, testified
that he carried the mail through the area of Excelsior,
Truman H. Daniels, the driver of the van which struck the van in which
the claimants were traveling, was not present at the hearing, nor did either
party offer his testimony at the hearing.
A careful review of the evidence reveals that U.S. Route 33 experienced other
drainage problems at the site of the accident. Although the respondent had
performed maintenance for water problems, the problem corrected was to solve
excess water on the property of an adjacent land owner. As the pool of water
which caused the accident, which is the subject of this claim, created a hazard
for the traveling public, the Court is disposed to find that the respondent is
liable to the claimants for the injuries which they each sustained as a result
of the accident. The preponderance of the evidence is in favor of the
claimants.
The Court directs the parties to inform the clerk when these claims may be
scheduled for a hearing on the question of damages.
30
REPORTS STATE COURT OF CLAIMS [
OPINION ISSUED JANUARY 17, 1986
JIMMIE A. AND EULA R. CURRENCE AND
LOREN AND RELLA CtJRRENCE
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—116 and CC—84—117)
Richard W. Cardot, Attorney
at Law, for claimants.
Andrew Lopez, Attorney at Law, for
respondent.
GRACEY, JUDGE:
These clams were consolidated and then bifurcated for separate
hearings upon the issues of liability and damages. On December 19,
1985, the Court issued its opinion, upon the liability issue, finding
that the respondent is liable to the claimants for the injuries which
they each sustained as a result of the motor vehicle accident of June
13, 1982.
At the hearing on the issue of damages on January 14, 1986, an Agreement,
between counsel for claimants and respondent, was admitted into evidence. The
Agreement sets out in detail the medical expenses and other items of damages
suffered by each party claimant. The Court finds the amounts therein stated to
be fair and reasonable. Settlements had been made by the claimants with the
liability insurer of another vehicle involved in the accident, and in the
Agreements, the amounts of those settlements were subtracted from the total
damages. By counsel, Jimmie A. Currence and Eula R. Currence, his wife,
requested that their separate claims be regarded as but one joint claim, and
Loren Currence and Rella Currence, his wife, requested that their separate
claims be regarded as but one joint claim.
Accordingly, the Court makes an award to Jimmie A. Currence and Eula
R. Currence in the amount of $134,027.08, and the Court makes an award to Loren
Currence and Rella Currence in the amount of $12,994.19.
Award of $134,027.08 to Jimmie A. Currence and Eula R. Currence. Award of
$12,994.19 to Loren Currence and Rella Currence.
OPINION ISSUED DECEMBER 19, 1985
YEAGER, INCORPORATED AND YEAGER FORD
SALES, INC.
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—88)
W.Va.]
REPORTS STATE COURT OF CLAIMS 31
Grover C. Goode, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
GRACEY, JUDGE:
Both claimants are Went Virginia corporations, of Welch, in McDowell County,
and have a common ownership. Yeager, Incorporated owns certain real estate
there which it leases to Yeager Ford Sales, Inc., a Ford dealership. Except for
a sales building on the other side of McDowell County Route 7, the real estate
in situated between the highway and the Tug River. over many years, occasional
hard rains had caused a flooding of the highway,, about 8 to 10 times each
year. The storm sever drain was inadequate. The only available bypass street,
Central Avenue, is too narrow for two—way traffic, on these flooding occasions,
authorities would contact Yeager Ford Sales, Inc. which would favor the public
by moving care from its lot, allowing vehicles to then use its lot an a bypass
route. After such a hard rain and flooding in June of 1981, renewed complaints
resulted in an effort of the respondent to solve the problem. Emily W. Yeager,
an officer of both corporations and wife of the principal owner, Earl Yeager,
headed up the effort, addressing requests to members of the legislature and
respondent’s representatives in the area. It was agreed that a drain would be
installed between the highway and the Tug River, passing beneath two buildings
on the Yeager, Incorporated property, referred to as the parts building and the
annex. Except for surveying the elevations and route,, and determining that a
24-inch drain pipe would be installed, there appears to have been little in the
way of planning the construction. There were no formal plans.
Before the work was begun, a right of way instrument was prepared by respondent
for execution by Earl Yeager as president of Yeager, Incorporated. This
instrument contained language to the affect that the consideration for the
right of way was also consideration for a release
from any and all damages that have been occasioned or that may be occasioned to
the residue of the property . . . by
reason of the construction to be performed.” After Yeager’s refusal to sign,
respondent added to the instrument:
‘It in agreed that after the pipe in installed the property will be restored to
as near original condition as possible.’
The instrument was then signed and respondent, with its own men, proceeded to
install the 24-inch drain during August of 1981.
Respondent apparently had expected labor help from the City of Welch for hand
digging the trench, for the drain, and the buildings. When such labor help was
not provided, respondent used mechanical equipment, a borrowed Bobcat loader.
Instead of a narrow trench, the excavation in places was about twelve feet in
width and was some six to eight feet in depth and was also along the wall of an
adjacent building known an the truck garage. From the evidence, the Court is
satisfied that the respondent road portions of building footers and installed
wood cribbing as a permanent replacement for foundation wall support; that
respondent
32
REPORTS STATE COURT OF CLAIMS fW.Va.
cut through the cement floor of the annex, for access underneath, and did not
properly backfill nor replace the floor; that respondent’s work resulted in now
cracks and enlargement of cracks existing prior to construction, and other
damages to the buildings and rendered portions of the buildings unsafe or unfit
for use. Respondent denied any obligation to do anything further, after
completing construction of the drain, except respondent did replace some
fencing and did supply two truckloads of backfill material for filling the hole
in the floor of the annex.
It is respondent’s position that the claimants were aware that some building
damage might ultimately result from construction of the drain; that Earl
Yeager’s original attitude had been that getting the now drain in was so
necessary that he did not care about building damage. Respondent mad* no
preconstruction investigation of the soil conditions beneath the buildings and
later found the soil to be sand containing a lot of water. As one of
respondent’s witnesses stated, “Hindsight in better than foresight.” Thomas 0.
Henderson, Jr., then respondent’s county supervisor for me 11 County, did not
know of the added provision in the right of way agreement, the provision to the
effect that the property was to be restored to an near original condition as
possible. He supervised the construction under direction of William R. Bennett,
respondent’s engineer.
Bennett did know of the added provision and was present daily during
construction, but he, too, thought that Earl Yeager did not care if there was
some settlement of the buildings. No stated that Yeager had given approval to
cutting the hole in the annex floor and that he, Yeager, “ . . . would see that it got put back in.”
He conceded that the annex building was not restored as nearly as possible to
its original condition. He contended that use of the wood cribbing constituted
good engineering practice.
There was disagreement, between claimants’ and respondent’s witnesses, whether
treated wood had been used. Claimants’ witnesses contended that untreated wood
was used. Respondent’s witnesses assumed that treated wood was used for the
reason that it purchases only treated lumber.
Hearing of this case was bifurcated upon the issues of liability and damages.
Upon the issue of liability, the Court finds that the written right of way
agreed to in the only contract between the partien; that the claimants’
interpretation of the contract in correct, that it was the obligation of the
respondent, upon accepting the right of way instrument it had prepared and
signed and upon then constructing the drain, to restore the property, including
the buildings, to as near original (preconstruction) condition as possible,
The Clerk of the Court is directed to sat this case for further hearing, upon
the issue of damages.
W.Va.]
REPORTS STATE COURT OF CLAIMS 33
OPINION ISSUED JANUARY 17, 1986
YEAGER, INCORPORATED AND YEAGER FORD SALES, INC.
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—88)
Grover C. Goode, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
GRACEY, JUDGE:
This claim was bifurcated
for separate hearings upon the issues of liability and damages. On December 19, 1985, the Court issued its opinion, upon the liability
issue, finding that it was the obligation of the respondent, upon accepting the
right of way instrument it had prepared and amended, and upon then constructing
a 24-inch drain under property of Yeager, Incorporated, to restore the
property, including the buildings, to as near original (preconstruction)
condition as possible. The respondent had failed to so restore the property,
and further property damage had resulted.
The Court heard evidence on the issue of damages, the cost of property
restoration and repair, on January 14, 1986. At that hearing, claimant Yeager
Ford Sales, Inc. withdrew the claim it had made for damages, for business
interruption.
John E. Caffrey, an engineer and consultant, testified concerning his
inspection of the property and his estimate of cost in the amount of $131,500.00 dated October 6, 1983. An estimate of cost
submitted by Osborne
Brothers Construction, Inc., dated October 25, 1983, in the amount of
$140,500.00, was also in evidence. A bid of Swope Construction Services, Inc.,
dated December 30, 1985, was presented. The Swope bid included an item of
$2,760.00 as the cost of replacing 46 linear feet of the newly installed
24-inch storm sewer should it be found to be damaged or should it be damaged in
performing the other work. This item is too speculative for the Court to
consider.
After careful consideration of all of the
above estimates and oral testimony concerning same, the Court makes an award in
the amount of $136,211.00 to Yeager, Incorporated.
Award of $136,211.00
to Yeager, Incorporated.
34
REPORTS STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED DECEMBER 20, 1985
MARY KATHYRN ESTES
VS.
DEPARTMENT OF HIGHWAYS
(CC—82—213)
Willard A. Sullivan and James Vaughan, Attorneys at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
WALLACE, JUDGE:
Claimant Mary Kathyrn Estes is the owner of residential real estate located on
County Route 18 in Crab Orchard, Raleigh County, West Virginia. Her property is
adjacent to a hillside. Claimant testified that she had no problem with water
damage prior to the early 1970’s when the respondent repaved the surface of Route
18. Claimant’s husband described how the repairs had altered the character of
the road and caused it to form a natural contour ditch line toward claimant’s
house.
On August 21, 1980, there was a rainstorm during which flooding occurred on
claimant’s property. The property sustained damages in the amount of
approximately $29,324.55. The flow of the water at that time created a natural
drainage ditch which caused the water to enter claimant’s property at her
mailbox and flow into the house. As a result of the flooding, certain damage
occurred; the floor pulled away from the block wall and sunk on one corner of
the house, cracks developed in the wall of the basement, the septic system
required repair, and appliances, furniture, rugs, etc. were destroyed.
Claimants allege that the flooding which occurred on the property was caused by
respondent’s resurfacing of Route 18. As a result, the ditch line adjacent to
the road was altered, which caused water to be diverted onto claimant’s
property.
Claude Blake, Claims Investigator for the respondent, testified that the
distance from claimant’s mailbox westward back up the hill on Route 18 was 222
feet. He further testified that there had been a rainfall of
1.3 inches in a twenty—four hour period at the time of the flooding. He also
stated that there is an area from the mailbox sloping down toward the side of
the house which appeared to be a potential conduit of water, and that the house
is below the surface of the road.
Mr. Charles W. Bragg, an Assistant County Supervisor for respondent in Raleigh
County, testified that Route 18 had been paved in the early 1970’s, but only
repaired, and not repaved since that time. He further testified that the
terrain was too rocky to support a ditch, and any accumulation of water had to
run down onto claimant’s property.
After examining all the evidence submitted in this claim, the Court has
determined that claimant’s property is in a natural drainage area. The
repairing of Route 18 occurred in the early 1970’s, and from that period until
August 21, 1980, claimant had no problems with her
W.Va.J
REPORTS STATE COURT OF CLAIMS 35
property. The unusual amount of rainfall in 1980 was instrumental in the damage
to claimant’s property. There is no evidence of any negligence on the part of
respondent, and for that reason, the Court is of the opinion, and does, deny
the claim.
Claim disallowed.
OPINION ISSUED
DECEMBER 20, 1985
THELMA L. JPMISON
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—255)
R. F. Gallagher, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
Claimant, Thelma L. Jamison, is the owner of her residential property at 960
Stewart Street, Just outside the city of Morgantown in Monongalia County.
Stewart Street is a State highway. Her property also borders on Wilbourne
Street, which runs generally perpendicularly of f Stewart Street. On the other
side of Wilbourne Street, also fronting on Stewart Street, is the Seaburn
property. Stewart Street is downhill as it passes the Seaburn property, then
levels out somewhat as it passes the entrance of Wilbourne Street and then the
Jamison property. wilbourne Street is very slightly downhill as it leaves
Stewart Street. The Jamison driveway, off Wilbourne Street to the garage at
basement level and at the rear of the house, is downhill. When there are hard
rains, surface water runs into the Jamison garage and has caused some
deterioration and damage to the driveway, yard, and garage. Jamison seeks
$5,000.00, that being the total of a contractor’s estimate for repairs to the
garage and an appraiser’s estimate of diminution in value of the property by
reason of the water damage to the garage.
Claimant states that the water comes into her garage by reason of a blocked
culvert, in the front of the Seaburn property, on Stewart Street; that the
water is diverted in such a manner as to miss the culvert under the Wilbourne
Street entrance and instead flows across the corner of the Seaburn property,
down Wilbourne Street, down across her yard and driveway, and into her garage.
It is obvious to the Court that at least some water finds its way into her
garage, crossing Wilbourne Street from the Seaburn property, and from Wilbourne
Street itself, and from her own yard and driveway. Ms. Jamison had tried
keeping a small ditch open, across her driveway, to divert the water from her
garage, but said such a ditch does not last long. She had also had a French
drain installed across the opening into her garage.
36
REPORTS STATE COURT OF CLAIMS [W.Va.
The origin of the culvert, along the side of Stewart Street and in front of the
Seaburn property, is unknown. Ms. Jamison and Ms. Mildred Charlotte Seaburn,
both of whom had occupied their respective properties for some forty years,
said that the culvert had been there before them. Both testified that the
respondent used to respond to the requests to clean the debris from the inlet
of the culvert. Ms. Seaburn said that the respondent, in recent years, had not
done so, and that until he had become too ill to do it, her husband had kept it
open.
Arthur Lee Ford, a Morgantown building contractor, had observed the claimant’s
garage in 1980 and described it as having been structurally sound at that time.
It had been added to the house about twenty—five years ago. In May of 1985, he
had found deterioration from water. He conceded that some deterioration was
from age. He submitted a proposal in the amount of $5,000.00 for extensive
repairs, practically a rebuilding of the garage.
Inasmuch as the respondent has charge of the right of way of Stewart Street,
and in the past has exercised control over the culvert in question and could
have removed it, the Court is of the opinion that equity and good conscience
dictate that the respondent be found liable, in part, for the damage to claimant’s
property. There being no accurate way to determine what amount of water entered
claimant’s property as a result of the culvert being blocked, and what amount
of water entered claimant’s property from other causes, by reason of natural
drainage, the Court arbitrarily makes an award in the amount of $2,500.00.
Award of $2,500.00.
OPINION ISSUED DECENBER 20, 1985
NINA G. JONES
VS.
DEPARTMENT OF HIGHWAYS
(CC—83—126)
E. Joseph Buffa, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
GPACEY, JUDGE:
The claimant, Nina G. Jones, born July 10, 1949, seeks damages in the amount of
$125,000.00 for personal injuries. At about 5:00 a.m., on August 10, 1982, on
Route 3 near Pettus, in Raleigh County, she was driving herself to work when
she ran into water on the highway. She testified that the water had caused her
car to hydroplane to its right; that a short stretch of highway where there was
no water had allowed her to regain control and get back onto the road; that a
second stretch of water on the highway had caused her car to hydroplane again,
to its left; that her car went down over a bank on the left side of the road
W.Va.]
REPORTS STATE COURT OF CLAIMS 37
and struck a tree.
Mrs. Jones was employed at a restaurant in Whitesville
and was supposed to open the restaurant for business at 5:00 a.m. each day.
When she did not arrive on time, a cook there telephoned Mrs. Jones’ husband,
Richard Lee Jones. He immediately followed her usual westerly route to
Whitesville, but did not see her car. He found it, and her, as he retraced the
route. He described the location of the car as being 20 feet off the highway
and almost straight across from the Graybill residence. He took his wife in his
car to the restaurant in Whitesville. She was transported by ambulance to
Charleston Memorial Hospital and then to the Eye and Ear Clinic in Charleston
where she was confined for four days. She lost two weeks’ wages at $300.00 per
week. Her medical expenses were in the amount of $2,529.45 at the date of
hearing. Dr. Samuel A. Strickland, her attending physician, in a letter medical
report dated November 3, 1982, reported that she had sustained “ ... severe trauma to her left eye with
secondary marked decreased vision due to optic atrophy from the left eye with
vision being hand motions only to the side and the visual loss being permanent
as a result of a direct blow to the left eye... .“ There was also a laceration above her left eye. In
describing her vision in the left eye, as a result of her accident, Mrs. Jones
said she can see “Mostly light and dark. I can see very few big images, nothing
that I could really make out.” Her husband described her self consciousness and
lack of coordination since her injury.
The Jones residence, from which Mrs. Jones had departed on the morning of her
accident, was at Packsville, about 3 miles east of Whitesville. She had driven
about a mile and a half to Pettus where she drove into the water on the
highway. on several previous occasions, she had seen water on the highway in
that vicinity after several days of rain. She said she had been unaware of any
heavy rainfall the night before or overnight, before her accident. It was not
raining as she drove west toward Pettus and Whitesville, but the highway was
wet. It was dark. She had her headlights on, but did not see the water on the
highway until she hit the first of it at a speed she estimated to be 40 to 45
miles per hour. In describing what happened, she said “. . .there was one place that didn’t
have water on the road there, and that’s when I got my car straightened back up
and just when I got back up on the road there then there was another big place
with water in it. That was when like it hydroplaned, went out of control.”
Mr. Jones described the highway, where he had found his wife that morning, as
having been covered with water. Gary Delano Barker also testified about water
on the highway when he stopped at the accident scene shortly after the
accident, after Mrs. Jones had been taken away. He also described two different
areas of water across the highway with a section of ten or fifteen feet of
highway between them. He said the water in the first area was then about an
inch deep and that the water in the second area was then about two and a half
to three inches deep for a distance of about twenty feet.
Paul Raymond Doss, whose residence is at Pettus,
near where a culvert passes beneath the highway, had seen the highway at about
6:20 a.m. as
38
REPORTS STATE COURT OF CLAIMS [W.Va.
he was leaving home to go to work. He described the highway as having water and
trash on it. He estimated the water to be six inches deep.
He also described how the culvert gets clogged up, causing water to run across
the road. A few days before Mrs. Jones’ accident, Mr. Doss’s wife, Helen
Pauline Doss, had made a telephone complaint, about water on the highway and
her yard, to an office of the respondent in Charleston. Also a few days before
Mrs. Jones’ accident, another Pettus resident, one Cecil Browning, had
complained to JoAnn McCormick, a secretary at the Whitesville Detachment of the
Department of Public Safety. Ms. McCormick testified that she had passed along
his complaint to the Beckley Detachment which later confirmed that the
respondent’s Beckley office had been notified.
The witnesses frequently using the subject stretch of highway variously
estimated the number of times each year when rain water overflows the culvert
and covers the highway. Respondent’s witnesses found no record of cleaning the
inlet or outlet or the culvert itself in a number of months prior to August 10,
1982.
Charles W. Bragg, respondent’s assistant county superintendent for Raleigh
County, said that they have had problems constantly when there are heavy rains
in the vicinity of the subject culvert at Pettus. He said that rocks and debris
from the hillside stop up the culvert.
Claude Blake, an investigator employed by respondent, had twice measured the
distance along the westbound lane of the highway, from the center of the
subject culvert to the middle of the Graybill residence,
and stated that distance to be 670 feet. Paul Raymond Doss estimated
the distance from his residence, right across the road from the culvert, to
where Mrs. Jones’ car came to rest, as 90 to 100 feet. Photographs in evidence
suggest the distance to be as measured.
While the State is neither an insurer nor a guarantor of the safety of
travellers on its highways, it does owe a duty of reasonable care and
diligence in the maintenance of a highway. Parsons
v. State Road Comm’n., 8 Ct.Cl. 35 (1969). The evidence in this case
established that respondent knew of the culvert problem, the frequent flooding
of the highway, and had received recent complaints prior to claimant’s
accident. The Court finds respondent negligent for its failure to take
satisfactory corrective action. The Court also finds the claimant guilty of
negligence in her failure to keep a proper lookout ahead and for operating her
vehicle at a speed in excess of a reasonable speed under the conditions then
and there existing. The Court, having determined claimant’s damages to be
$25,000.00, and under the doctrine of comparative negligence having apportioned
70% negligence to respondent and 30% negligence to claimant, makes an award in
the amount of $17,500.00 to the claimant.
Award of $17,500.00.
W.Va.]
REPORTS STATE COURT OF CLAIMS 39
OPINION ISSUED DECEMBER 20, 1985
HERMAN F. LAWHORN
VS.
DEPARTMENT OF VETERANS AFFAIRS
(CC—85—389)
No appearance by claimant.
Robert D. Pollitt, Assistant
Attorney General, for respondent.
PER CURIAN:
Claimant was apparently receiving a regular monthly benefit from the Veterans’
Administration, the amount apparently being determined by several factors,
including the number of his dependents.
Claimant’s daughter, one of his dependents, married, and on June 18, 1984, he
reported this fact to respondent’s Beckley office. That office filed the report
and failed to relay the information to the Veterans’ Administration. Claimant,
thereafter received overpayment of benefits in the amount of $544.00 and was
required to make repayment after the overpayment was discovered. Claimant seeks
an award in reimbursement.
In its Answer, respondent admits the validity and amount of the claim and
states that it could not be paid because the fiscal year had ended. Respondent
further states that sufficient funds were on hand, at the close of the fiscal
year in question, to have paid the claim.
The Court finds that the claimant received a benefit sum to which he was not
entitled and cannot justify an award to him for his repayment of same. The
claim must be disallowed.
Claim disallowed.
OPINION ISSUED DECEMBER 20, 1985
GAIL PHILLIPS
VS.
DEPARTMENT OF PUBLIC SAFETY
(CC—85—129)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAN:
On or about October 14, 1984, the claimant was the owner of a house trailer
occupied by a tenant, Veronica Taft, and her infant daughter, at Mountainview
Trailer Court near Morgantown in Monongalia County.
40
REPORTS STATE COURT OF CLAIMS [W.Va.
According to his testimony, he had attempted to help her by purchasing the
house trailer and renting it to her. He said that her brothers were a problem;
that she had said that she would be able to get along if she could stay away
from them and have a place to live.
An officer of the Department of Public Safety, the respondent, testified that
he had three felony warrants for one of her brothers when he and another
officer went to the trailer on the previous evening, after a neighbor had
reported that the brother had been going to and from the trailer and was there
at that time. Getting no response to knocking on the door, the officers found
the doors unlocked and entered the trailer. They found no one there. The
officer witness and two others returned to the trailer on the following day
after another neighbor reported that the brother was then in the trailer. They
knocked on the door and asked the brother to come out. There was no response.
After several hours, trying to talk him out of the trailer, We decided to gas
it.” Six to eight tear gas canisters were projected through the windows, and
the three officers then entered the trailer. They found no one there.
The claimant presented an estimate of repairs in the amount of $1,026.00 for
damage he said had been done to the trailer by the officers. Included on the
estimate were broken windows, burned sofa, carpet, broken doors, a plate glass
mirror, and other items. He said he had managed to get the work done for a
total of $918.00.
The Court is of the opinion that claimant sustained unprovoked damages as a
result of action of members of the Department of Public Safety, the respondent
herein, and makes an award to the claimant in the amount of
$918.00.
Award of $918.00.
OPINION ISSUED DECEMBER 20, 1985
R. J. CAREY COMPANY, INC.
vs.
DEPARTMENT OF HEALTH
(CC—84—209)
Bernard J. Meyer, Attorney at Law, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
WALLACE, JUDGE:
Claimant company supplied two temporary boilers to Welch Emergency
Hospital under the terms of an original lease contract with two
successive one—year renewal clauses. The agreement was effective August
1, 1980, and it ended September 1, 1983. Claimant company is alleging
a loss of $5,650.00 as claimant interpreted the terms of the agreement
W.Va.J
REPORTS STATE COURT OF CLAIMS 41
to include an additional lease of one year, which necessitated payment from
respondent through September 22, 1984. Respondent, by letter dated December 23,
1983, exercised it’s option to cancel the contract agreement on 15 days notice.
Respondent made payment through May 20, 1984, with the exception of the
$2,290.00 March payment. Claimant removed the boilers on may 20, 1984.
Respondent stipulated that $2,290.00 for the March payment is owed claimant
company.
The evidence indicates that a contract to lease boilers was entered into
between the claimant and the respondent. The lease contained a cancellation
provision which was clear in its terms. The parties to the agreement were aware
of the terms of this provision. The respondent canceled the lease with the
required 15 days notice. As the terms of the contract were controlling, this
Court makes an award in the amount stipulated by respondent for the March
payment, which is the only amount due the claimant.
Award of $2,290.00.
OPINION ISSUED
JANUARY 15, 1986
HENRY BURGER AND GERALDINE BURGER
VS.
DEPARTMENT OF HIGHWAYS
(CC—82—l81)
Michael W. McGuane, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
GBACEY, JUDGE:
Claimants seek an award of $80,000.00 for the near total destruction of their
dwelling house and real estate located at Ruth Avenue in Mozart,
Marshall.County, West Virginia. Claimants allege that respondent’s failure to
properly design and maintain the drainage system in the area caused a
landslide, which rendered the claimants’ property nearly valueless. Respondent
contends that the property damage resulted from a torrential rainstorm on
August 17, 1980, from a separation and a break in a water line owned by the
City of Wheeling, which occurred after the storm, and from the two to one
hillside topography there. Claimants sued the City of Wheeling, owner of the
water line, in the Circuit Court of Marshall County, and received a $50,000
settlement in about November 1983.
Except for the in open court testimony of Henry Burger, one of the claimants,
the evidence was presented by depositions.
Claimants’ property, listed for sale in May 1980 at $45,000.00, is on the
downhill side of Ruth Avenue. On the uphill side of Ruth Avenue, and generally
parallel thereto, is Carl Street which is Route 3/1. Ruth
42
REPORTS STATE COURT OF CLAIMS [W.Va.
Avenue is a Delta Road, taken into the state road system in 1967. An 18—inch
culvert carries surface water under Carl Street. An open drain carries the
water downhill to where an 8—inch casing takes it under Ruth Avenue. There was
no evidence showing when or by whom the 8-inch casing under Ruth Avenue was
installed. The claimants’ property is of f to the side from the 8-inch casing.
Claimant, Henry Burger, testified that on August 18, 1980, the water main in
Ruth Avenue broke, causing a five foot geyser of water in the street. This
occurred the day after the rainstorm, following which Marshall County was
declared a disaster area. Within two weeks, cracks began to appear in the
foundation of claimants’ home. Damage to the home progressed and claimants
moved out on May 10, 1981.
Donnie L. Bensenhaver, Maintenance Assistant in District 6, testified that he
first visited claimants’ property on September 5, 1980. This visit was made in
response to complaints by the claimants and a neighbor. Mr. Bensenhaver said
that the 8-inch casing would not handle a heavy rain like the one which
occurred on August 17, 1980. He said that the ground was such that a saturation
of the soil could cause sliding. The addition of the water from the water main
would serve to exacerbate a slide.
Several of the claimants’ neighbors testified about a previous flood on Labor
Day 1975, which caused slide movement in the area. The neighbors also testified
that the Ruth Avenue drain would periodically become clogged with debris, one
neighbor, Glenna Nelson, testified that there is a spring which flows through
her basement.
After careful consideration of all the evidence presented, the Court concludes
that the damage to claimants’ property resulted from a combination of factors.
The primary factor was the heavy rainfall on August 17, 1980. This produced a
super saturation of the soil, precipitating the landslide. A separation of a
water main joint and water main break under Ruth Avenue aggravated this
situation as did the presence of underground springs. It is unclear whether the
drain on Ruth Avenue was clogged prior to the rain or became clogged becauseof
the rain. The Court finds that the proximate cause of, claimants’ property
damage was the excessive rainfall that occurred and water from the water main,
saturating the hillside and causing the slide; that there was no negligence
proven on the part of the respondent. In view of this finding, the Court must
disallow the claim.
Claim disallowed.
W.Va.1
REPORTS STATE COURT OF CLAIMS 43
OPINION JANUARY 15, 1986
CARL A. DANIELS
VS.
DEPARTMENT OF HIGHWAYS
(CC—83—274)
Juanita Daniels Hall, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIP1N:
This claim was submitted for decision after hearings on November 15, 1985 and
December 13, 1985, respectively, and upon a written stipulation. The claim was
originally filed in the names of Carl A. Daniels and Lillian R. Daniels, who
had joint ownership of the property. After this action was filed, Lillian R.
Daniels died. The property passed to Carl A. Daniels by right-of-survivorship.
The Court amended the style of the claim to delete Lillian R. Daniels as a
party claimant.
The claimant, by Juanita Daniels Hall, his attorney in fact, and respondent, by
its counsel, Andrew Lopez, entered into a stipulation.
The parties, in the stipulation, agreed to the following facts. A bridge was
constructed by respondent over Mill Creek on U.S. Route 219, Randolph County,
adjacent to the real property and retaining wall of the claimant’s. After the
bridge was constructed, the angle of its abutment, during periods of high flow,
caused water to be directed against the claimant’s property and retaining wall,
resulting in damage. The parties have stipulated that $9,450.00 is a fair and
equitable estimate of the damages sustained by the claimant.
In view of the foregoing, the Court makes an award in the amount stipulated.
Award of $9,450.00.
OPINION ISSUED JANUARY 15, 1986
HAMILTON BUSINESS SYSTEMS
VS.
DEPARTMENT OF HEALTH
(CC—85—175)
Templeton B. Hamilton, Jr. appeared for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAN:
44
REPORTS STATE COURT OF CLAIMS (W.Va.
Claimant is a West Virginia corporation which, under an equipment
rental agreement with respondent, provided respondent with a Savin 880
Copier, a sorter and a console for use from July 1982 through June 26,
1984. A provision of the agreement reads as follows:
C. Customer shall use reasonable care in safeguarding the equipment, and,
unless damaged or destroyed without the negligence or fault of Customer, shall
return it to Hamilton Business Systems...
The copier was ruined by fire on June 26, 1984, and claimant seeks
$3,029.67, for the purchase price ($2,831.50) and for interest
($198.17), as compensation for the loss of the machine.
T. B. Hamilton, Jr., testified that the position of the claimant is that
respondent has a moral obligation to reimburse claimant for its loss.
There is no evidence of any negligence or wilful misconduct on the part of the
respondent. Claimant and respondent follows: are bound by the language of the
equipment rental agreement, and, on the basis of that agreement, the Court
disallows the claim.
Claim disallowed.
OPINION ISSUED
JANUARY 15, 1986
BONNIE FAYE
JARRELL
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—299)
Claimant’s husband, James E. Jarrell, appeared for claimant.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIPN:
On July 27, 1985, the claimant’s husband was driving the claimant’s 1982
Chevrolet Monte Carlo on Cabin Creek Road, Kanawha County, when the vehicle
struck a pothole. The vehicle sustained damage to the tire and wheel in the
amount of $237.25. The husband of the claimant, James E. Jarrell, originally
filed this claim in his own name and that of his wife, Bonnie Faye Jarrell.
However, the record reflects that his wife was the sole titled owner of the
vehicle. The Court then, upon Mr. Jarrell’s agreement, amended the style of the
claim to delete James E. Jarrell as a party claimant. Claimant’s husband
testified that he estimated the pothole to be seven inches deep, twelve inches
wide, and sixteen inches long. Claimant’s husband had observed the pothole and
believed it had been in existence for two months prior to this accident.
W.Va.]
REPORTS STATE COURT OF CLAIMS 45
Claimant’s husband also testified that he had notified respondent office in
Charleston, by telephone, about two or three weeks prior to this incident,
concerning this pothole and other potholes beyond it on the same road. He could
not identify the person who took his complaint. Although the respondent may
have had actual notice of the existence of the pothole in the road, the
claimant’s husband was operating the vehicle at an estimated speed of 40 miles
per hour, an excessive rate of speed for the conditions then and there
existing.
It is the opinion of the Court that although the respondent may have been
negligent, the negligence of claimant’s husband was equal to or greater than
that of the respondent. The Court therefore denies the claim.
Claim disallowed.
OPINION ISSUED JANUARY 15, 1986
JOE L. SMITH, JR., INC., D/B/A BIGGS-JOHNSTON-WITHROW
VS.
DEPARTMENT OF EMPLOYMENT SECURITY
(CC—85--377)
Ben Preast, Sales Representative, appeared for claimant.
D. B. Daugherty, Attorney at Law, for respondent.
PER CURIAM:
Claimant was the successful bidder and was awarded a purchase order for 200,000
printed forms at a cost of $8,572.00 to respondent. As the claimant was unable
to produce the necessary forms, the work was subcontracted to a company in New
York. After the forns were delivered to respondent, its purchasing agent
informed claimant that it intended to reject the forms. The forms were rejected
due to a defective blue carbon.
Respondent used 143,000 forms as it lacked an alternative until replacement
forms could be printed by a company other than the claimant. Claimant was
informed by the New York subcontractor that claimant was entitled to a full
refund for the forms which were returned to it.
Respondent returned only 57,000 of the original 200,000 forms to claimant for
which claimant received a partial credit of $3,386.09. Claimant seeks $3,727.16
for the forms not returned to it and for which it did not receive the refund.
46
REPORTS STATE COURT OF CLAIMS [W.Va.
The Court is of the opinion that to deny an award to the claimant would be
unjust enrichment. The respondent used the forms. However, the forms were
defective through no fault of respondent. For that reason, the Court reduces
the amount claimed by 10% and makes an award to claimant in the amount of
$3,354.44.
Award of $3,354.44.
OPINION ISSUED
JANUARY 17, 1986
AMERICAN BRIDGE
DIVISION OF UNITED STATES STEEL CORPORATION, A
DELAWARE CORPORATION, AND AMERICAN BRIDGE DIVISION OF UNITED STATES STEEL
CORPORATION, A CORPORATION, ON BEHALF OF JOHN B. CONOMOS, INC.,
A PENNSYLVANIA CORPORATION
VS.
DEPARTMENT OF HIGHWAYS
(CC—82—166)
James R. Watson, Attorney at Law,
Harry P. Waddell, Attorney at Law, and
Charles A. Rea, Attorney at Law, for claimants.
S. Reed Waters, Jr., Attorney at Law, for respondent.
GRACEY, JUDGE:
These claims arise out of construction of a new bridge crossing the Ohio River,
between West Virginia and Ohio, at St. Marys, in Pleasants County. The contract
for construction of the bridge was dated November 1, 1974, the parties thereto
being United States Steel Corporation and the West Virginia Department of
Highways, the respondent. The required completion date was November 1, 1976. As
a part of the contract, the contractor, United States Steel Corporation, was
required to paint the structural steel at the shop upon fabrication and in the
field upon erection. The contractor awarded a subcontract, for the field
painting, to John B. Conomos, Inc.
The contract documents were placed in evidence as joint exhibits, including:
(as la) the West Virginia Department of Highways Standard Specifications —Roads
and Bridges —
Adopted 1972; (as lb)
the Contractor’s Proposal in which special provisions and the signed contract
are embodied; (as lc) the West Virginia Department of, Highways Supplemental
Specifications dated July 1, 1974 (To Accompany Standard Specifications Adopted
1972); and (as id) the Plans for Construction of the bridge.
Applicable paragraph items on page 2 of the Plans for Construction, so far as
painting is concerned, include:
Governing Specifications
The West Virginia Department of Highways Standard Specifications,
W.Va.]
REPORTS STATE COURT OF CLAIMS 47
Roads and Bridges Adopted 1972 as Anended By The Supplemental
Specifications Of The West Virginia Department of Highways,
Adopted July 1, 1974, The Contract Documents And The Contract
Plans.
Painting
Shop And Field Painting Shall Be Done In Accordance With Section 615 Of
The Standard Specifications, The Special Provisions And
Supplemental SpecificAtions.
jp_ Painting
Surfaces To Be In Contact With Concrete Shall Not Be Painted.
All Structural Steel, Except Concrete Surfaces, Shall Be Painted With
Four (4) Mils Of An Inorganic Zinc Shop Primer. All Contact Surfaces
Will Receive A Maximum Thickness Of 1/2 Mils Of Inorganic Zinc Coating.
Areas Damaged During Shipping And
Erection Shall Be Repaired With The Shop Primer In The Field.
Field Painting
Field Coat Bhll Meet Requirements Of Section 711.16 Vinyl Top Coat, 3
Mils (Dry) .
The Total Paint
Thickness Shall Be Seven (7) Mils.
John B. Conomos, of John B. Conomos, Inc., an industrial painting contractor,
testified that he had been contacted by several steel fabricators, including
the Anerican Bridge Division of United States Steel Corporation, shortly after
the bridge project was advertised for bids. After reviewing the plans and
drawings he had his assistant and bookkeeper, Reta, make some calls to find out
what the current prices were for materials. The memo of her telephone contact
with Carboline, a paint manufacturer, listed three paints, Vinyl 711.15 and
711.16 and Zinc-Carbo Zinc 11. He said that he did not know why a price had been
given on Vinyl 711.15 and conceded that he had not inquired. After making up
his estimates of labor, materials, etc., he had, on the might before bid
opening, provided his subcontract bid to various bidders and obtained a verbal
commitment from Anerican Bridge. The subcontract between them is dated June 20,
1975. Generally, under this field painting subcontract, the subcontractor was
required to accomplish the field painting required in the prime contract
including (1) clean and prepare all bolts, welds and abraded surfaces as
necessary amd apply touch-up paint which is inorganic zinc primer and (2) apply
three (3) mils dry thickness of vinyl finish paint 711.16.
In its Notice of Claim, the claimant alleges that the specification, with
reference to painting, was defective; that the two types of paint, inorganic
zinc as a primer and vinyl. 711.16 as a top coat, are incompatible; that the
respondent then knew or had reason to know of such incompatibility and failed
to so inform the claimant; that it became necessary for the subcontractor to
apply an intermediate tie coat”, at the instance of the respondent, which
constituted a “constructive change order” or “extra work”; that the claimant
was not granted an appropriate extension of tine for completion of the contract.
As a result, claimant demands: (1) an award of $145,000 in compensation for its
own additional costs for labor, material, equipment, overhead and other
incidental costs, (2) an award of $93,600 in reimbursement of
48
REPORTS STATE COURT OF CLAIMS [W.Va.
a liquidated damages delay in completion penalty of $300 per day for 312
days paid by the claimant to the respondent, and (3) an award of
$350,000 on behalf of its subcontractor, John B. Conomos, Inc., for its
additional costs for labor, material, equipment, overhead and other
incidental costs.
In the late 1960’s, paint system technology was undergoing change. Earlier, a
red lead prime coat was used with an aluminum top coat. Then, a three layer
vinyl system was used. And, in the early 1970’s, the inorganic zinc primer with
vinyl, top coat was being developed.
Conomos had little or no experience in using the vinyl over inorganic zinc
paint system on a job of this magnitude. From his review of the plans and
drawings, he had regarded it as a simple two-coat system, a shop coat of
inorganic zinc and a field coat of 711.16 vinyl. He was unaware that an
intermediate tie coat (wash coat, barrier coat) might be required to accomplish
adhesion and to prevent bubbling and blistering. He attached no importance to
the fact that Carboline had quoted him a price on vinyl 711.15, an intermediate
vinyl paint. These numbers refer to numbered sections in the Standard
Specifications. Section 711 provides the standard specifications for Paints and
oils. Each of its subsections deals with a particular subject. Section 711.16
spells out the requirements of a particular vinyl top coat. Section 711.20
deals with the “Zinc—Rich System” and sets out requirements with reference to
the primer, a wash coat if recommended by the paint manufacturer, and the top
coat. Inorganic zinc was required as the shop coat, the primer. This
subcontractor would be applying some 900 gallons of inorganic zinc in the field
painting and would be applying the vinyl top coat, to meet the requirements of
Section 711.16, over all. In the Special Provision appears:
“Prepainted Surfaces: All prepainted metal surfaces shall be painted with one
coat of a suitable barrier coat (as recommended by the selected 2—coat paint
system manufacturer), and one topcoat of the selected
2—coat system.”
All of these specifications and provisions were there to be read. Surely a
study of then would have forewarned the contractor and subcontractor that the
intermediate coat would be necessary. The claimant’s parade of expert witnesses
testified that an inorganic zinc primer and a vinyl top coat meeting Section
711.16 requirements, without the intermediate coat, were incompatible, but
apparently no such expert was contacted about this paint system
before bidding. It was incumbent upon the contractor and the subcontractor to
be fully informed before bidding.
The bridge was not completed on November 1, 1976. It was completed on July 27,
1978. It was opened for use by the traveling public on November 18, 1977, and
no liquidated damages for delays were assessed beyond that date. The delay in
completion, the Court concludes from the evidence, was caused by claimant’s
delays in fabrication and shop painting of the structural steel. From tine to
time, as the contractor updated its expected work schedule, extending its
expected date of
W.Va.]
REPORTS STATE COURT OF CLAIMS 49
completion, these were the reasons stated, no reference being made to problems
in field painting.
At the conclusion of the claimant’s presentation of evidence, the respondent
moved to dismiss the claims. That motion is sustained.
Claim disallowed.
OPINION ISSUED
JANUARY 17, 1986
BANKERS POCAHONTAS
COAL LIMITED PARTNERSHIP AND W. B. SWOPE,
INDIVIDUALLY
VS.
DEPARTMENT OF HIGHWAYS
(CC—83—159)
Robert M. Worrell, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
This claim was filed against the respondent by Bankers Pocahontas Coal Limited
Partnership, hereinafter referred to as claimant Bankers, but when the evidence
disclosed that a portion of the claim consists of certain monies expended by W.
B. Swope, a partner in the limited partnership, the
Court amended the style of the claim to include W. B. Swope, individually,
hereinafter referred to as claimant Swope.
By deed dated March 24, 1931 and of record in the Office of the Clerk of the
County Commission of McDowell County, West Virginia, in Deed Book 119, at Page
341, Bankers Pocahontas Coal Company and its lessee, Kingston Pocahontas Coal
Company conveyed to the County Court of McDowell County a parcel of land for
the construction of a bridge over Tug River. The deed provided that title to
the bridge and the parcel of land would revert to the grantors if the county
court failed to maintain the bridge for a period of two consecutive years.
Claimant Bankers is the successor to the rights of the grantors in the deed.
The bridge is the only method of vehicular access to the part of the City of
Welch, West Virginia, in which the sanitary land fill and water systems are
located as well as access to certain coal mines operated by claimant Bankers.
In April or May 1979, following complaints by local residents concerning the
safety of the bridge, employees of the respondent inspected it and recommended
that the bridge be posted for a three ton weight limit. Pursuant to the
Commissioner’s Order of July 17, 1979,
50
REPORTS STATE COURT OF CLAIMS [W.Va.
the respondent posted the bridge for a three ton weight limit. There was some
indication in the record that the County Court had posted a three ton limit on
the bridge sometime previous to the action by the respondent.
As a result of the 1979 posting, claimant Bankers was prohibited from driving
its coal trucks across the bridge. In fact, they were stopped by law enforcement
officers. Local residents continued to use the bridge, as well as trucks of the
City of Welch proceeding to and from the sanitary land fill. Claimant Bankers
filed suit for declaratory judgment in the Circuit Court of McDowell County
against respondent to determine ownership of the bridge. The Circuit Court
found that the county court had failed to maintain the bridge for at least a
period of two consecutive years, and the title to the bridge had reverted to
claimant Bankers. The Court further ordered the Commissioner to rescind its
posting order and enjoined respondent from exercising further jurisdiction over
the bridge.
During the period of time in which the coal trucks were unable to use the
bridge, claimant Bankers attempted to develop and use a dirt road over the
mountain to Premier, West Virginia. This effort was stopped by the Department
of Natural Resources. Claimant Swope, one of the partners in the limited
partnership, had a low water bridge constructed near the existing bridge to enable
the coal trucks to cross the river. This low water bridge was also used by some
of the local residents until it was subsequently destroyed by high water.
Claimant Bankers seeks to recover $1,544.82 expended on repairs to the bridge
prior to the 1979 posting by the respondent and attorney fees and costs of
$1,016.41 incurred in the declaratory judgment suit against respondent.
Claimant Swope seeks to recover $6,211.76 expended by him on behalf of claimant
Bankers for materials used in the construction of the low water bridge.
The McDowell County Circuit Court ruled that the title to the bridge had vested
in claimant Bankers. There can be no recovery of funds expended by claimant
Bankers for repairs on its bridge prior to the posting of the weight limits by
the respondent, nor is there any authority or basis for this Court to make an
award for the attorney fees and costs expended by claimant Bankers in the
McDowell County litigation. However, it was necessary for the claimants to
provide a means of access for trucks to their mining operation, and to do so,
the low water bridge was erected. Claimant Swope, as a partner in Bankers
Pocahontas Coal Limited, paid invoices of $6,211.76 for materials used in the
construction of the low water bridge.
The Court finds that claimant Swope is entitled to an award for the costs
expended by him on the low water bridge and makes an award of $6,211.76. The
Court denies the claims of claimant Bankers Pocahontas
W.Va.j
REPORTS STATE COURT OF CLAIMS 51
Coal Limited Partnership for repairs to its bridge and attorney fees and costs
expended in the declaratory judgment suit against the respondent.
Award of $6,211.76 to W. B. Swope.
OPINION ISSUED JANUARY 17, 1986
VONLEY COLE, Administrator of the Estate of KAREN RENEE COLE,
VS.
DEPARTMENT OF HIGHWAYS
(CC—82—292)
David Burton, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
GRACEY, JUDGE:
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 lames 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.
52
REPORTS STATE COURT OF CLAIMS [W.Va.
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
W.Va.]
REPORTS STATE COURT OF CLAIMS 53
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 automobile.
For these reasons the Court is disposed to and does disallow this claim.
Claim disallowed.
OPINION ISSUED
JANUARY 17, 1986
C. P. FARLEY AND REBECCA L. FARLEY
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—l23)
Charles P. Farley appeared for claimants.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIP,M:
On February 2, 1985, the claimant was driving his 1980 Plymouth Champ
southbound on Route 19 one mile north of the Muddlety exit when the car hit a
pothole. The car sustained damage to one tire in the amount of $32.55. The
claimant testified that he estimated the pothole to be 16 to 18 inches square,
and about 5 to 6 inches deep. Claimant noted that the pothole matched a piece
of asphalt laying on the road in close proximity to it.
The claimant testified that there had been recent snow removal by snowplows on
the section of Route 19 where the accident occurred. It was claimant’s
contention that the blade of the plow lifted an existing patch from a pothole,
thus exposing the hole to the travelling public. The claimant further testified
that he frequently travelled this road and that he had travelled the road
within two weeks of the accident, and the pothole did not exist at that time.
54
REPORTS STATE COURT OF CLAIMS [W.Va.
The law of West Virginia is well established that the State neither insures nor
guarantees the safety of motorists on its highways. Adkiris
v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947) . For the respondent to be found liable for damages
caused by road defects of this type, the claimants must prove that the
respondent had actual or constructive notice of the defect and a reasonable
amount of time to take corrective action. Davis v. Dept. of Highways, 12
Ct.Cl. 31 (1977); Haskins V. Dept. of Highways, 12 Ct.Cl. 60 (1977); Hicks v.
Dept. of Highways, 13 Ct.Cl. 310 (1980) . As there was no such evidence presented, the claim must be
denied.
Claim disallowed.
OPINION ISSUED JANUARY 17, 1986
CONSTANCE KESNER, INDIVIDUALLY AND CONSTANCE KESNER, AS ADMINISTRATRIX
OF THE ESTATE OF PHILIP S. KESNER, DECEASED
VS.
DEPARTMENT OF CORRECTIONS
(CC—81—188)
David N. Dittmar, Attorney at Law, for claimant.
Henry C. Bias, Jr., Deputy Attorney General, for respondent.
WALLACE, JUDGE:
This claim was filed by Constance Kesner, individually and as a wrongful death
claim under the provision of W.Va. Code 55-7-5 by Constance Kesner as the
administratrix of the Estate of Philip S. Kesner, deceased, who was killed
during an escape by inmates from the West Virginia State Penitentiary in
Moundsville, West Virginia on November 7, 1979. At the time of his death,
Philip S. Kesner was employed as a trooper by the Department of Public Safety
of West Virginia and had been so employed for approximately three years. He was
survived by his wife, Constance Kesner, to whom he was married on April 24,
1978. Both he and his wife were 23 years old at the time of his death. On the
night of November 7, 1979, the decedent and his wife were driving past the
penitentiary at the time of a prison break. Escaping prisoners forcibly stopped
and commandeered the Kesner vehicle. The Kesners were thrown out of the
vehicle, and Philip S. Kesner was shot and killed. When the claimant’s evidence
was nearly completed, the respondent conceded liability and acknowledged that
there probably would not have been an escape resulting in the death and
injuries had there not been negligence on the part of at least two correction
officers of the respondent. only the issue of damages remained to be
determined.
The decedent had no children and under the provisions of W.Va. Code §55-7—5,
the widow became the sole heir of the decedent, entitled to receive any
recovery by reason of the death of her husband. The
56
REPORTS STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED JANUARY 17, 1986
HUGHES—BECHTOL,
INC.
VS.
BOARD OF REGENTS
(CC—81—450)
E. Glenn Robinson, Attorney at Law for claimant.
Donald L. Darling, Deputy Attorney General and Ann Ewart, Assistant Attorney
General for respondent.
GRACEY, JUDGE:
This claim grows out of a written contract upon a printed form designated AlA
Document AlOl, Owner—Contractor Agreement, incorporating AlA Document A20l,
General Conditions of the Contract for Construction, dated March 14, 1979, and
duly executed by the claimant and respondent, respectively. The contract
provides for the construction of a Multipurpose Physical Education Facility at
Marshall University, in Huntington, for a fixed sum of $3,162,173.00. The
contract was approved by: the Director of the Purchasing Division; the
Commissioner of the Department of Finance & Administration; and, finally,
by the Attorney General on April 9, 1979. Paragraph 7.9.1 of the General
Conditions, pertaining to Arbitration, provides:
“All claims, disputes and other matters in question between the Contractor and
the arising out of, or relating to, the Contract Documents or the breach
thereof, shall be decided by arbitration in accordance with the Construction
Industry Arbitration Rules of the American Arbitratim Association then
obtaining unless the parties mutually agree otherwise. * * * The award rendered by the
arbitrators shall be final, and judgment may be entered upon it in accordance
with applicable law in any court having jurisdiction thereof.”
Subsequently, a dispute arose between the parties based upon a claim by
Hughes-Bechtol that the respondent, on the one hand, had caused substantial
delay in performance of the contract and, on the other hand, had refused to
extend the time of performance. When amicable resolution of a dispute failed, with
reference to additional costs incurred after August 30, 1981, Hughes-Bechtol
filed a demand for arbitration at the Cincinnati Regional Office of the
American Arbitration Association. On October 26, 1982, a demand for arbitration
was served upon the respondent. Arbitrators were duly appointed, and a hearing
upon the merits was held on February 22, 1983. On February 28, 1983, an
arbitration award was made to Hughes—Bechtol in the sum of $398,685.85 upon its
claims against respondent arising after August 30, 1981, on the project.
The matter now is before this Court upon the “Claimant’s Second Motion for
Partial Summary Judgment” enforcing the arbitration award. The gist of the
respondent’s position, in opposition to that motion, is that the quoted
arbitration provision of the contract is void and unenforceable because this
Court has exclusive jurisdiction of claims against state agencies such as the
respondent and, for that reason, the respondent had
W.Va.]
REPORTS STATE COURT OF CLAIMS 55
respondent contends that certain sums received by the widow from State funds
should be offset against any award. Benefits received by the widow from
collateral sources are not to be considered.
The Court finds that proceeds of two life insurance policies paid for by the
State, one with the Aetna Life Insurance Company in the amount of $8,000.00 and
one with the Public Employees Insurance in the amount of
$20,000.00, both amounts paid to the widow, are not a collateral source.
Additionally, the widow is entitled to receive from the Department of
Public Safety Death, Disability and Retirement Fund $1,324.83 per month
commencing sixty days after the decedent’s death and continuing for the life of
the widow or until she remarries. These payments are not a collateral source
except for the contribution of approximately $2,400.00 made by the decedent
during his employment as a trooper.
The Court is well aware of the shock and mental anguish suffered by the
claimant, Constance Kesner. The experience of being dragged from their vehicle,
resulting in her husband’s death in her presence, will never be erased from her
memory. After careful consideration of the record and considering the sums
already received by the widow other than collateral sources, and fully
realizing the possibility of her remarriage, the Court makes an award to the
claimant, Constance Kesner, individually in the amount of $50,000.00.
The Court also finds that Constance Kesner, as Administratrix of the Estate of
Philip S. Kesner, deceased, is entitled to an award of $150,000.00. In addition
to this amount, under the provisions of the wrongful death statute, the
administratrix is entitled to recover the funeral bill in the amount of
$2,960.59, incidental funeral expenses in the amount of $77.25, and the cost of
a tombstone in the amount of $1,270.00. Accordingly, the Court makes an award
to Constance Kesner, as Administratrix of the Estate of Philip S. Kesner,
deceased in the amount of $154,307.84.
The victim’s automobile was heavily damaged, later repaired and sold for
$3,500.00. The record is otherwise silent as to the value of the automobile
prior to the escape, and the Court makes no award as to automobile damages.
Award of $50,000.00 to Constance Kesner, individually. Award of $154,307.84 to
Constance Kesner, as Administratrix of the Estate of Philip S. Kesner,
deceased.
W.Va.]
REPORTS STATE COURT OF CLAIMS 57
no authority to agree to arbitration. The principal authority cited for that
position is the case of J. L. Simmons Company, Inc. v. Capital Development
Board, 424 N.E.2d 821 (Ill. 1981), a very similar case in which enforcement
of an arbitration award was denied because the Illinois Court of Claims has
exclusive jurisdiction of the matter arbitrated. An examination of the Illinois
Statute cited in that case, delineating the jurisdiction of its Court of
Claims, Ill. Rev. Stat. 1979, Ch. 37, 439.8, and upon which the decision
turned, however, discloses that it provides:
“The court shall have exclusive jurisdiction to hear and determine the
following matters: (b) All claims against the State founded upon any contract
entered into with the State of Illinois. * * *“
In view of that
statute, that decision could not have been otherwise. West Virginia has no
similar statute.
West Virginia does have substantial statutory and case law on the subject of
arbitration and, if nothing else is clear, it is certain that the policy of the
law of this State favors arbitration. In Board of Education v. W. Harley
Miller, Inc., 160 W.Va. 473, 236 S.E.2d 439 (1977) our Supreme Court of
Appeals stated:
Where parties to a contract agree to arbitrate either all disputes or
particular limited disputes arising under the contract, and where the parties
bargained for the arbitration provision, then, arbitration is tory, and any
causes of action under the contract which upon motion for s the proper time. By
the contract terms are made arbitrable are merged, in the absence of fraud,
with the arbitration award and the arbitration award is enforceable upon a
complaint setting forth the contract, the arbitration provision, and the award
of the arbitrators judgment made at [4]. The important words in the new rule
are that the agreement to arbitrate must have been ‘bargained for.’ * * “
If the agreement to
arbitrate in this case was not “bargained for”, in view of its various
approvals, it would be difficult to conceive one that was. See also Barber
v. Union Carbide Corporation, 304 S.E. 2d 353 (1983)
In addition, West Virginia Code, 55-10—1, provides:
“Persons desiring to end any controversy, whether there be a suit pending
therefor or mot, may submit the same to arbitration, and agree that such submissions
may be entered of record in amy court. Upon proof of such agreement out of
court, *
* * it shall be
entered in the proceedings of such court; and thereupon a rule shall be made
that the parties shall submit to the award which shall be made in pursuance of
such at. (emphasis supplied)”
The emphasized language ‘any court’ plainly is broad enough to include this
Court and it is equally plain that the legislature could have excluded this
Court from the operation of that statute had it wished to do so.
Finally, the general law appears to be to the effect that a state or its
agencies may enter a valid contract with a private party providing for the
arbitration of disputes that may arise under the contract. See
58
REPORTS STATE COURT OF CLAIMS [W.Va.
5 Pam. Jur. 2d “Arbitration and Award” 67
and also 81A C. J. S. “Arbitration” 168c, page 636, where it is stated:
“The parties to a contract for state improvements may agree to select an umpire
or arbitrator to settle disputes as to the interpretation of the contract, and
the rights of the parties thereunder, and his decision is binding in the
absence of fraud or bad faith;”
Since there is no assertion of fraud or bad faith in this case, this Court is
obliged to grant the pending motion and allow an award of
$398, 685.85.
Award of $398,685.85.
Judge Lyons dissents and reserves the right to file a dissenting opinion.
OPINION ISSUED JANUARY 17, 1986
HOWARD A. SNYDER
VS.
DEPARTMENT OF HIGHWAYS
(CC—8O--351)
Russell Jay Guthrie, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
GRACEY, JUDGE:
The claimant was injured in a fall which occurred at a roadside park owned and
operated by respondent which is located on Route 55 near Wardensville, Hardy
County, West Virginia. The fall occurred on Thursday, October 5, 1978. Claimant
stopped at the roadside park in the early afternoon and went down a short
flight of wooden stairs to a restroom. When he went down the stairs, he noticed
that the handrail was down. As he went back up the stairs, he lost his balance
at about the third step and fell backwards, suffering injuries including a
fracture of his left wrist. He seeks $100,000.00 in damages.
Waldo Heishman, a truck driver employed by respondent, testified that in 1978
his duties included maintaining the roadside park. He stated that he visited
the park on Mondays and Fridays to clean it and to perform any other
maintenance that might be required. Mr. Heishman said that the handrails were
occasionally knocked down by vandals, but that he would fix the rails when that
occurred.
While the Court is sympathetic to the claimant, the law of West Virginia is
well settled that the State is neither an insurer nor a guarantor of the safety
of travellers on its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d
81 (1947) .
This principle has
been extended to pedestrians. The Court has held on several occasions that
where a person has travelled across an area and then been injured upon
W.Va.1
REPORTS STATE COURT OF CLMMS 59
returning, failure to exercise reasonable care and to maintain a proper lookout
was the proximate cause of the injury. See: Moore v. Dept. of Highways, 14
Ct.Cl. 179 (1982); Hall v. Board of Regents, 12 Ct.Cl. 232 (1978) . The Court finds no negligence on
the part of respondent and accordingly disallows the claim.
Claim disallowed.
OPINION ISSUED
JANUARY 24, 1986
MELLON-STUART
COMPANY and KIRBY ELECTRIC COMPANY
VS.
BOARD OF REGENTS
(CC—82—14)
John E. Beard, III, Attorney at Law, Carolyn L. Marchetti, Attorney at Law,
Peter J. Kalis, Attorney at Law, for claimants.
Henry C. Bias, Jr., Deputy Attorney General, Donald L. Darling, Deputy Attorney
General,
Ann Ewart, Assistant Attorney General, for respondent.
LYONS, JUDGE:
This claim arises out of contracts for the construction of a multipurpose
physical education facility at Marshall University, Huntington, West Virginia.
By agreement dated the 26th day of September, 1977, the West Virginia
Board of Regents entered into an architectural agreement with Robert J.
Bennett, A.I.A. and Associates and the Eggers Group, which formed
Bennett/Eggers Architects, a joint venture to provide professional
architectural service essential to the design and construction.
Article 15 of the Agreement provided a fixed limit construction cost of Sixteen
Million Five Hundred Ninety Thousand Dollars.
The joint venture group designed substantially the multipurpose building as it
exists today. The first bid proposals were in the range of Twenty Million
Dollars, a considerable amount above the fixed limit of construction as
referenced in Article 15. The Architects, after preparing an addendum to the
specification which is described Addendum Bulletin Number 1, invited bids for
five prime contracts. They were of the opinion that this would bring about the
lowest bid possible; however, the evidence shows that this bidding would
increase the construction period, administrative and cost. Prior to receiving
the bids, the architects furnished to the Board of Regents a project time
schedule dated November 30, 1978 in the form of a Bar Chart.
60
REPORTS STATE COURT OF CLAIMS [W.Va.
On March 1, 1979, the bid tabulations were made. The bleacher and seating work
contract was awarded to P,merican Desk Manufacturing Company. The swimming pooi
contract was awarded to Whitten Corporation. The electrical work was awarded to
Kirby Electric Service, Inc. The mechanical work was awarded to Hughes—Bechtol,
Inc., and the general construction work was awarded to Mellon—Stuart Company.
In August 1977, the Board of Regents had authorized the architects to obtain
sub—surface data, both boring and laboratory testing service pertinent to the
foundation design for the facility. In the same month, Mr. Robert J. Bennett,
one of the architects, requested a complete survey of the project area from
Lambert and Company of Huntington, West Virginia. Lanbert and Company furnished
to Mr. Bennett all the information requested by him and prepared the site plan,
which is designated SU-l.
On December 20, 1977, Syska and Hennessy, Inc., Engineers, informed the Eggers
Group, the architects, of their recommendations concerning the sanitary and
storm sewers in the construction area and made a number of recommendations
prior to the start of construction. In his letter of December 20, 1977, Kenneth
E. Cline, P. E. was of the opinion that the estimated sewer relocation time
would be approximately six months and needed a solution to the matter as the
same may interfere with the scheduling of new construction.
A Notice to proceed was issued effective as of May 9, 1979. The contract
required that the base contract was to be completed within 700 consecutive
calendar days from the date of the notice to proceed, and the alternates to the
Gullickson Hall were to be completed within 150 calendar days after the
completion of the base contract, thus making the completion date for the base
contract work Jpril 6, 1981 and the completion date for the Gullickson Hall
alterations September 3, 1981.
Mellon—Stuart Company, by separate contract, was to coordinate construction by
conducting progress and safety meetings by updating job progress schedules and
by expediting shop drawings and correspondence.
The initial work on the project was the mass excavation and foundation work to
be performed by Mellon—Stuart Company. The site plan identified certain utility
lines throughout the project area. The plans specified no particular time for
the relocation of the utility lines. The removal of the utilities and the
relocation of the utilities and the street abandonment were obviously the first
work to be performed. The party responsible for the relocation and/or removal
of the 36—inch storm sewer and the 12—inch sanitary sewer was Hughes—Bechtol
Company. The electric lines were the responsibility of Kirby Electric. The
telephone lines were the responsibility of the telephone company. The main and
service gas lines were the responsibility of the gas company.
The design provided that the excavation go to a certain grade which the
architects determined would be sufficiently compact to support a concrete slab.
Additional foundation work was the underpinning of Gullickson Hall and the
foundation concrete work consisting of piles, pile caps, and tie beams and
foundation walls.
W.Va.J
REPORTS STATE COURT OF CLAIMS 61
Mellon-Stuart filed with the architect a preliminary time schedule designated
on a Bar Chart. This chart designates each sequence of work and the time
allocated for the work to be performed. The schedule allowed one month from the
date of the notice to proceed to complete the relocation of known utilities and
the abandonment of the streets. Based upon the notice to proceed of May 9,
1979, the schedule was to start relocation of the utilities on May 9, 1979 and
to be completed on June 6, 1979. The mass excavation was to begin on May 22,
1979 and to be completed by September 22, 1979. The underpinning of the
Gullickson Hall was to begin on June 13, 1979 and be completed by July 3, 1979.
Pile Foundation work was to begin in June 1979 and be completed in October
1979. Foundation walls were to be started in August 1979 and be completed by
October 24, 1979. Structural steel work was to start on October 25, 1979 and to
be completed in April of 1980. The original plan was to complete the mass
excavation, pile driving and contract work in summer and fall of 1979. The
structural steel work was to proceed through the winter for the completion of
that work in April 1980. The work did not proceed as planned. Mellon—Stuart
contends there were errors and omissions in the site plan. It was discovered
that a gas service line at Gullickson Hall was located approximately 35 feet
from Gullickson Hall rather than immediately adjacent to the building.
There was a six—inch high pressure gas line known as the Devon Gas line running
along the entire length of the easterly side of the excavation, which line was
not shown in the contract documents or the site plan.
There were also gas lines extending from Third Avenue into the project site
that were not shown on the plans. There were other lines extending into the
areas of the mass excavation. Mellon—Stuart contends that the State failed to
relocate these utilities in a timely manner.
The evidence indicates that contrary to the schedule, Virginia Avenue was not
abandoned until September 24, 1979. The 36—inch sewer line was not relocated
until October of 1979. The 12—inch sewer line, running the length of the
project along Virginia Avenue, was not relocated until July 20, 1979. The
electric lines running the entire length of the project were not relocated
until August of 1979. The telephone line running the entire length of the
project was not relocated until August of 1979. Utility poles found along the
entire length of Virginia Avenue and the project were not removed until about August
of 1979. The water line, running the length of the project along Virginia
Avenue, was not relocated until August of 1979. The Columbia Gas line running
the length of the project was not relocated until September of 1979. The Devon
Gas Line was not relocated until August of 1979. The Gullickson Hall gas line
was not relocated until September of 1979. The undisclosed water line south of
Gullickson Hall was not relocated until September of 1979.
Mellon—Stuart contends there was improper sub—grade design as there was not an
accurate specification given on the soil conditions. The specifications called
for excavation to grade and pouring of a concrete slab on grade. This was not
possible as the subsoil was very wet and jellylike. Mellon—Stuart contends that
an engineered sub—grade should have been specified;, that prolonged maintenance
of the excavation was required by the delays in relocation and removal of the
site utilities; that the entire project was thus delayed; that the plans and
62
REPORTS STATE COURT OF CLMMS [W.Va.
specifications contained numerous errors and omissions in addition to those
directly affecting site access and that change orders were delayed and had a
direct impact on the project schedule.
Errors and modifications affecting the schedule included the Kaiwall
installation, doors and windows, concession areas, ceilings and pool area. All
of these, the claimant contends, had an appreciable time impact. Mellon-Stuart
contends that the respondent failed to manage the project by its failure to
maintain on—site personnel authorized to act for the respondent; by its failure
to adopt and adhere to or require adherence by other contractors of any project
schedule; by its failure to issue change orders extending the project time as
required by contract; by its failure to issue change orders in a timely manner,
extending the project time as to some, but not all, prime contractors; by its
failure to manage the contract of Hughes-Bechtol; that Hughes—Bechtol quit the
project for a month and refused to follow any reasonable project schedules or
directives.
The Court is of opinion that Mellon—Stuart and Kirby fulfilled their
obligations with respect to delays; that the respondent failed to fulfill its
obligation to coordinate the work of the multiple prime contractors and to
provide timely and reasonable site access to the claimants; that the respondent
breached its obligation to fully and properly disclose site drainage
conditions; that the contractor, Mellon-Stuart and Kirby, owed a duty to mitigate
their damages. When Mellon—Stuart was given notice to proceed and went upon the
site, it was evident that the utility lines had not been removed and should
have revised its schedule to take into consideration delays to result from
winter working conditions.
The Court is of the opinion that the respondent is responsible for any
negligent acts and omissions of its architect, agents and representatives in
connection with this project.
The Court is further of the opinion that the claimants are entitled to recover
costs attributable to extra work caused by concealed conditions and design
defects but not for the total amounts claimed.
Mellon—Stuart, in its presentation of its claim, seeks a recovery of
$1,928,099.85 including a retention of $37,500.00 by the respondent. Kirby, in
its presentation, seeks to recover $504,936.46.
On January 25, 1984, Mellon—Stuart filed with the Court a Pre-Hearing Statement
which included an explanation of damages being claimed, including damages for
each of several of its subcontractors. Damages claimed for subcontractors had
not been mentioned, as such, in its Notice of Claim. On March 26, 1984, the
opening day of hearing, the respondent filed a written Motion for Partial
Summary Judgement with reference to the subcontractors’ claims, and a written
memorandum in support of same. The Court deferred ruling on the motion at that
time. Subsequently, the construction contracts between Mellon—Stuart and
certain subcontractors were admitted into evidence, as were post—construction agreements
between them with reference to damage claims. Evidence was received on
additional costs the subcontractors
W.Va.]
REPORTS STATE COURT OF CLAIMS 63
incurred and the reasons therefore. On October 23, 1984, claimant filed its
brief in opposition to the motion. The Court now overrules the said notion.
However, this Court has no obligation or authority to determine the rights and
obligations as between Mellon—Stuart and its subcontractors.
After consideration of the record, the Court finds that Mellon—Stuart is
entitled to an equitable award of $660,434.33 and the restoration of the
retention held by the respondent in the amount of $37,500.00 for a total award
of $697,934.33. The Court further finds that Kirby is entitled to an award of
$107,835.04.
Award of $697,934.33 to Mellon-Stuart Company.
Award of $107,835.04 to Kirby Electric Company.
OPINION ISSUED ON FEBRUARY 13, 1986
B-K DYNAMICS, INC.
VS.
TAX DEPARTMENT
(CC—86—l4)
No appearance by claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based on the allegations in the Notice of
Claim and the respondent’s Answer.
Claimant seeks payment of the sum of $237,235.77 for professional services
rendered respondent in completion of the Enhanced Business Tax Computation
System. The parties entered into a Memorandum of Agreement on April 4, 1984,
for the one year commencing on April 9, 1984 and extending to April 9, 1985
with a renewal clause to June 30, 1986. Claimant was to be paid on a monthly
basis. For the period February through June 1985 the billing statements from
the claimant were misrouted or misplaced by respondent. As a result of
non-availability of fund s, the invoices were neither paid nor was the
deficiency realized by respondent until the fiscal year had expired. Claimant
has not been paid for the services rendered in performance of the contract
during these particular months.
In its Answer; the respondent admits the allegations of fact set forth in the
Notice of Claim, but further alleges that sufficient funds were not available
at the close of the fiscal year in question from which the claim could have
been paid.
While the Court feels that this is a claim which in equity and good conscience
should be paid, we are of further opinion that an award
64
REPORTS STATE COURT OF CLAIMS [W.Va.
cannot be made, based on the decision in Airkem Sales and Service, et
al. vs. Department of Mental Health, 8 Ct. Cl. 180 (1971)
Claim disallowed.
OPINION ISSUED FEBRUARY 13, 1986
JACK AND VERA MCMILLAN
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—277)
Jack McMillan appeared for claimants.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIP,N:
On June 30, 1985, at about 11:30 o’clock p.m., claimant Jack Mcmillan was
operating the claimants’ 1983 Oldsmobile Cutlass Supreme Calais on Route 61
travelling westbound from Paintsville to Charleston, when he crossed a bridge
at Slaughter’s Creek. His wife and adult son were with him in the automobile.
The two left wheels of the vehicle struck a pothole on the bridge. Claimant did
not see the pothole before he hit
it. He testified that it was approximately one foot by one foot and that it
went “clear through the bridge” in reference to its depth. Claimant had
travelled this route frequently before this incident. The left wheels and tires
of the vehicle were damaged. Claimant’s actual monetary loss amounted to
$267.00 as his insurance covered the balance of the cost of the damage.
Claimant’s son, Frank Lee McMillan, a truck driver, testified that he had been
aware of the existence of the pothole for the better part of a year prior to
the accident. He stated that during that year, a steel plate had been used by
respondent to cover the pothole, but that the plate was often knocked off, as
on the night of this incident.
It is the opinion of the Court that respondent’s negligence was the proximate
cause of the damage to the claimants’ car; that claimants are entitled to an
award in the amount of $267.00.
Award of $267.00.
W.Va.]
REPORTS STATE COURT OF CLAIMS 65
OPINION ISSUED FEBRUARY 13, 1986
MINE SAFETY APPLIANCES COMPANY
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—191)
William Blackwell, Service Representative, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On April 11, 1985, the claimant’s Service Representative was driving a 1985
Chevrolet Astro Van on Route 161, McDowell County, when the vehicle struck two
potholes. Claimant’s Service Represent—ative was proceeding from Pageton toward
Thorpe to service the mines of U. S. Steel. The van is titled in the name of
Leaseway Corporation which leases the van to the claimant. Claimant’s Service
Represent-ative was unable to produce the lease agreement. The vehicle
sustained damage to the tires and wheels in the amount of $209.90. Claimant’s
Service Representative estimated the larger hole to be 28 inches long and the
smaller hole to be 16 inches long. He testified that he judged the two holes to
be four inches wide and eight inches deep. He did not know how long the
potholes had been in existence.
No evidence was introduced at the hearing to establish that the respondent was
aware of, or had any knowledge of, the existence of these two potholes. This
Court has consistently held that the State is not an insurer of the safety of
motorists using its highways; thus, as there was no showing of negligence on
the part of the respondent, the Court denies the claim.
Claim disallowed.
OPINION ISSUED FEBRUARY 13, 1986
DORSEL D. PARSONS
VS.
DEPARTMENT OF HIGHWAYS
(CC—82—14l)
John G. Anderson, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On June 9, 1980, at approximately 3:30 a.m., claimant was driving his father’s
automobile, a 1977 Chevrolet Monte Carlo, from Hurricane to
66
REPORTS STATE COURT OF CLAIMS [W.Va.
Winfield, Putnam County. At a point near Shop-a-Minit on that route, claimant
suddenly lost control of the vehicle, veered to the right, went of f the berm
over an embankment, and flipped the car onto its side. It had been raining the
evening before the accident. In explaining what happened, claimant testified
that there was a vehicle coming at him with its bright lights on. On cross
examination, claimant testified that in a statement to the police officer he
had indicated that lit looked like the other car was in my lane coming at me.”
Claimant sustained physical injuries and damage to the vehicle, and seeks an
award of $10,000.00. Claimant alleges that the respondent was negligent for
failing to maintain the berm of the road in proper condition and for failing to
install a guard rail between the road and the embankment.
From the record, there is no evidence of negligence on the part of the
respondent which was the proximate cause of the accident. Neither the
maintenance of the berm nor the lack of a guard rail caused the accident.
Accordingly, the Court is of the opinion to and does disallow the claim.
Claim disallowed.
OPINION ISSUED FEBRUARY 13, 1986
A. E. QUEEN AND PAULINE QUEEN
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—151)
Claimant A. E. Queen for claimants.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On February 21, 1985, claimant A. E. Queen was travelling at approximately 7:30
p.m. in his 1980 Toyota Corolla on Route 52, from Bluefield to Mount Gay, when
the automobile hit a rock. His friend, Haskell Stamper, was driving the car.
Claimant A. E. Queen originally filed this claim in his own name; however, the
record reflects that the automobile is titled in both the name of A. E. Queen
and that of his wife, Pauline Queen. The Court, on its own motion, amended the
style of the claim to include Pauline Queen as a party claimant.
The claimant, A. E. Queen, testified that the rock was about two feet wide and
about three and one half to four feet long. Haskell Stamper testified that they
had travelled the same route on the morning of the incident and that the rock
had not been present at that time.
W.Va.J
REPORTS STATE COURT OF CLAIMS 67
Benny Ellis, a Sergeant with the Mingo County Sheriff’s Department, testified
that he notified respondent of the rock when he becane aware of it, about ten
minutes before the accident occurred. Ellis personally observed the removal of
the rock while the claimant, A. E. Queen, and Haskell were waiting for the tow
truck.
The law of West Virginia is well established that the State is neither an
insurer nor a guarantor of the safety of persons travelling on its highways. Adkins
vs. Sims, 130 W.Va. 645, 46 S.E. 2d 81 (1947) In this instance, respondent
effected a remedy immediately upon notice of the road defect. The claim must be
denied.
Claim disallowed.
OPINION ISSUED FEBRUARY 13, 1986
ROBERT W. RECTENWALD and JEANNE E. RECTENWALD
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—230)
Claimant Robert W. Rectenwald appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAN:
On February 23, 1985, between 7:30 and 8:00 p.m., claimant Robert Rectenwald’s
friend, Tom Halstead, was operating claimant’s vehicle, a 1984 Cavalier Station
Wagon, in a southerly direction on U.S. 19 beyond Davis Creek when the vehicle
struck a pothole. Claimant Robert Rectenwald originally filed this claim in his
own name. The record reflects that the vehicle is titled in both Robert
Rectenwald’s name and that of his wife, Jeanne Rectenwald. The Court then, upon
Mr. Rectenwald’s agreement, amended the style of the claim to include Jeanne
Rectenwald as a party claimant.
According to the claimant Robert Rectenwald, who was a passenger, the weather
was very bad and it was raining. The vehicle hit a pothole which blew out the
front tire completely. Introduced into evidence was an invoice reflecting
repairs made to the automobile in the amount of
$115.95.
Mr. Halstead confirmed the testimony of claimant Robert Rectenwald. He
testified) though, that he estimated his speed as being not more than 30 miles
per hour. He did not make a complaint to respondent.
The State is neither an insurer nor a guarantor of the safety of persons
traveling on its highways. Adkins v. Sims, 130 W.Va. 645 (1947). For the
State to be found liable, it must first have either actual or constructive
notice of the defect in the roadway. Since there
68
REPORTS STATE COURT OF CLAIMS [W.Va.
was no proof in this case that the State had notice of the defect, the claim
must be denied.
Claim disallowed.
OPINION ISSUED FEBRUARY 19, 1986
ARTHUR COBURN
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—177)
Dwight Coburn, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On March 22, 1985, at approximately 3:30 or 4:00 p.m. claimant’s vehicle, a
1984 Chevette, ran over a rock which had rolled out into the road. Claimant’s
son, driver of the vehicle, was travelling to his home from Marshall University
on State Route 10 in Lincoln County. The vehicle sustained damage in the amount
of $166.80. The claimant, Arthur Coburn, had originally filed this claim in his
own name and that of his son, Dwight Coburm. However, the record reflects that
Arthur Coburn is the titled owner of the vehicle. The Court, upon Dwight
Coburn’s agreement, amended the style of the claim to dismiss Dwight Coburn as
a party claimant.
Claimant’s son testified that he was coming out of a curve and failed to see
the rock. He travelled that route three or four times weekly, but stated that
it was not a rockslide prone area. He estimated the rock to be the size of a
basketball.
This Court has held that the unexplained falling of a rock or boulder into a
highway without a positive showing that respondent knew or should have known of
a dangerous condition posing injury to person or property is insufficient to
justify an award. Hammond vs. Department of Highways, 11 Ct.Cl. 234
(1977). There was no evidence in this case of such notice to or knowledge on
the part of respondent. Therefore, the Court must deny the claim.
Claim disallowed.
W.Va.j
REPORTS STATE COURT OF
CLAIMS 69
OPINION ISSUED FEBRUARY 19, 1986
FRIEDA LEGGETT AND WILLIAM LEGGETT
VS.
DEPARTMENT OF HIGHWAYS
(CC—82—223)
Gregory W. Evers, Attorney at Law for claimants.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On October 1, 1981, at approximately 10:00 p.m., claimant Frieda Leggett was
driving south on Interstate 77 at approximately 45—50 miles per hour near
Ripley, Jackson County. 1—77 is a four—lane highway. On the date in question,
the right lane of the two southbound lanes was closed as employees of
respondent were performing maintenance. Claimant Frieda Leggett was driving a
1976 Ford Granada titled in both her own name and that of her husband, William
Leggett.
As she approached the construction area, she stated that she observed a “Keep
Right” sign and black barrels placed across the right lane. Claimant Frieda
Leggett then went to the left lane and drove for approximately a mile or a mile
and a half. She said she saw an opening and on down, about 100 feet, a car in
the right lane. She said she saw the car’s tail lights and thought that this
was where she was supposed to turn. She said she did not see any barrels ahead
of her and saw nothing which prevented her from the switching from the left to
the right lane. She straightened up in the right lane and drove into an
excavated hole. She estimated this hole to be three or four feet deep.
Claimants asked for an award in the amount of $75,000 incident to property
damages and personal injuries.
The investigating trooper, Michael Bright, an employee of the Department of
Public Safety, testified that orange—colored barrels were clearly in evidence
in the construction area. However, he had measured a distance of 282 feet
between barrels where the vehicle had moved from the left lane to the right
lane. He did not remember seeing any warning signs and did not observe a ‘Keep
Right” sign. Claude Blake, respondent’s investigator, testified that he had made
an error, in his answers to interrogatories, when he listed the presence of two
“Keep Right’ signs in the construction area; that his answer should have been
that there were two ‘Keep Left” signs. He was unable to provide documentation
to support this correction.
Three different employees testified that they participated in placing orange
and white-colored barrels at a distance of 50-60 feet apart in the area of
construction on 1-77 near Ripley on September 24, 1981 in accordance with the
Case 20 Diagram in a Traffic Control Manual. In addition, warning signs were
placed at that time. William R. Whited, an employee of respondent, testified
that on October 1, 1981, he was working at patching holes on 1—77 near Ripley.
He did not observe either a ‘Keep Right’ sign nor any barrels with a distance
of 282 feet
‘I
70
REPORTS STATE COURT OF CLAIMS [W.Va.
between them. James Kiser, a general foreman with respondent in October, 1981,
testified that he was working on the concrete patching on October 1, 1981 and
60 days prior to October 1, 1981. He did not observe barrels out of place, nor
a “Keep Right’ sign on 1—77 near Ripley.
Testimony failed to establish negligence on the part of the respondent. The
barrels and warning signs were placed in accordance with respondent’s
regulations.
It is the opinion of the Court that the evidence in this claim does not
establish such negligence on the part of the respondent as to justify an award.
Claim disallowed.
OPINION ISSUED
FEBRUARY 19, 1986
JOHN I. MOORE AND CHARLENE MOORE
VS.
DEPARTMENT OF HIGHWAYS
(CC—S 5—153)
ALICE CATHERINE TAYLOR
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—167)
Claimants appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
These claims were consolidated for hearing as the factual situations in each
are identical. On April 2, 1985, the claimants, while operating separate
vehicles, were travelling westbound lanes near the Montrose exit on Interstate
1—64, Kanawha County. Each of the vehicles struck the same hole in the pavement
of the highway. Both vehicles, a 1982 Chevrolet Cavalier, and a 1980 Buick
Regal, were damaged. Ms. Moore, owner of the Chevrolet, seeks an award of
$379.91; Ms. Taylor, owner of the Buick seeks $384.09.
The hole struck by the vehicles was located in the center lane of the westbound
lanes on Interstate 64 where the highway has three westbound lanes. Ms. Moore’s
accident occurred at 8:35 p.m.; Ms. Taylor’s at approximately 8:15 p.m. The
pavement was dry at the time of the accidents. Ms. Moore testified that she was
unaware how long the hole had been in existence. Ms. Taylor testified that she
had observed an
W.Va.]
REPORTS STATE COURT OF CLAIMS 71
indentation in the road prior to her accident, however the indentation was not
a pothole at that time.
Paul Totten, a claims investigator for respondent, testified that he became
aware of the pothole when he was notified of it on march 28, 1985. He notified
respondent’s maintenance crew on March 29, 1985.
Ray Harmon, respondent’s employee, testified that on March 29, 1985, he went to
the area of the Montrose exit on 1—64 after work and patched a pothole. George
Harris, also employed by respondent, testified that he assisted Harmon, and
that they used “cold mix.” Carl Young, another of respondent’s employees,
testified from respondent’s work sheets that work was done on the potholes in
the area of the Montrose exit on both March 29, 1985, and April 1, 1985. He
further testified that a five—person crew worked through the night of April 2,
1985, and repaired the hole with “Quick—Crete.” Herbert Boggs, Interstate
Coordinator in District 1 for respondent, confirmed that he had inspected the
completed work on the morning of April 3, 1985, and at that time there was no
hole present.
Although the respondent’s duty of reasonable care and diligence in the
maintenance of a highway under all the circumstances, Parsons vs. State Road
Commission, 8 Ct.Cl. 37 (1969), may require respondent to put greater
effort into the maintenance of superhighways than in the maintenance of the
lesser—travelled county roads, Davis Auto Parts vs. Department of Highways, 12
Ct.Cl. 31 (1977), and Bartz vs. Department of Highways, 10 Ct.Cl. 170
(1975), proof of actual or constructive notice is required in all cases. The
evidence in this record indicates that the dangerous condition appeared
suddenly, and that the respondent promptly moved to take safety precautions as
soon as it became aware of the problem. Barnhart vs. Department of Highways, 12
Ct.Cl. 236 (1979). Adkins vs. Sims, 130 W.Va. 645, 46 S.E. 2d 81 (1947), holds
that the State is neither an insurer nor a guarantor of the safety of the
motorists on its highways. The Court is of the opinion that negligence on the
part of the respondent has not been established and, therefore, the Court
denies these claims.
Claim disallowed.
OPINION ISSUED FEBRUARY 19, 1986
FRANK SPENCE AND MARGARET
E. SPENCE
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—224)
Claimants appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
72
REPORTS STATE COURT OF CLAIMS [W.Va.
PER CURIP,M:
On May 26, 1985, claimant Frank Spence was operating his 1981 Plymouth Horizon
on U.S. 52 in a southerly direction toward Crum, when he hit a pothole.
Claimant, Frank Spence, originally filed the claim in his own name; however the
record reflects that his wife, Margaret Spence, is also a titled owner of the
vehicle. The Court, on its own Motion, amended the style of the claim to
include Margaret Spence as a party claimant. The vehicle was damaged in the
amount of $552.40. After claimant Frank Spence introduced evidence of damages
in the aforementioned amount, the Court amended the amount of the original
claim to reflect that amount. Claimant Frank Spence testified that he did not
see the pothole until he hit it. Although he travelled that route frequently,
he had not observed the pothole prior to this accident. Claimant Frank Spence
knew of no complaints to respondent about the pothole prior to this incident.
The State is neither an insurer nor a guarantor of the safety of persons
travelling on its highways. Adkins vs. Sims, 130 W.Va. 645 (1947). For the
State to be found liable, it must first have had either actual or constructive
notice of the defect in the roadway. Since there was no proof in this case that
the State had such notice of the defect, the claim must be denied.
Claim disallowed.
OPINION ISSUED FEBRUARY 19, 1986
LOVA M. STOUT AND M. WOOD STOUT
VS.
DEPARTMENT OF HIGHWAYS
(CC—78—29)
Gregory W. Evers, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
GRACEY, JUDGE:
The claimants seek an award of $20,000.00 for personal injuries, medical
expenses, and damage to their 1966 Plymouth automobile.
Claimants were travelling northbound on Route 20 at Gum Mountain near
Buckhannon, Upshur County, on February 10, 1976. Claimant M. Wood Stout
testified that a large boulder rolled out in front of them and their vehicle
collided with it. He also testified that rocks have been falling in this
particular area since the 1950’s as he has lived there with his wife since that
time. Claimant Lova Stout also testified “there were always rocks falling down
off of that hill.”
W.Va.]
REPORTS STATE COURT OF CLAIMS 73
R. F. Heflin, General Foreman for respondent in Upshur County, testified that
he was unaware of any rock fall signs in the area of the accident in February
1976. On the day before the accident, respondent’s crew was plowing snow. He
said that a crew, from time to time, would go down to Gum Mountain and pick up
all of the loose rocks and ditch the road. He was unable to document, through
records maintained by respondent, that any of respondent’s crews had worked on
Gum Mountain on February 10, 1976.
This Court has held that the unexplained falling of a rock or boulder into a
highway without a positive showing that respondent knew or should have known of
a dangerous condition posing injury to person or property is insufficient to
justify an award. Hammond v. Dept. of Highways, 11 Ct.Cl. 234 (1977).
There was no evidence in this case of such notice to or knowledge on the part
of respondent. Therefore, the Court must deny the claim.
Claim disallowed.
OPINION ISSUED APRIL 30, 1986
P,NERICAN TELETRONICS CORPORATION
VS.
DEPARTMENT OF HEALTH
(CC—85—362)
Willard Sullivan, Attorney at Law, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
WALLACE, JUDGE:
Claimant, American Teletronics Corporation, seeks $15,769.25 in payment for
repairs performed on the telephone system of the Greenbrier Center, a facility
in Lewisburg operated by the West Virginia Department of Health. Claimant
installed the telephone system in 1983. Thereafter, claimant and respondent
entered into a Maintenance Agreement.
This Maintenance Agreement provided that American Teletronics Corporation, for
a payment of $220.00 per month, would service the telephone system. Paragraph 4
provides in pertinent part:
“It is understood that this Agreement does not cover damages to or failure of
the System resulting from causes other than wear and tear from normal use,
including, but not limited to misuse, negligence, accident, theft, or
unexplained loss, abuse, connection to direct current, fire, flood, wind, Acts
of God or the public enemy, or improper wiring, installation, repair or alteration
by anyone other than the NECTEL Associate.”
74
REPORTS STATE COURT OF CLAIMS EW.Va.
In July of 1984, the telephone system failed and claimant was called upon to
effect repairs. Claimant determined that the cause of the failure was a surge
of electrical power engendered by a lightning strike and billed the respondent
for the cost of labor and materials. Respondent asserts that the repairs were
covered by the maintenance agreement and were not necessitated by any of the
causes excepted by paragraph 4 thereof.
Jerry Ayers, a technician employed by claimant, testified that certain
components of the switching mechanism were ‘burned’ and that, in his opinion,
the cause of this burning was a power surge. There was no other admissible
testimony as to the cause of the system failure.
Respondent introduced testimony that the system had failed numerous times in
the year prior to the failure at issue and that, shortly after installation,
certain of the grounding mechanisms were inadequate.
Claimant’s evidence, however, indicated that these problems had been corrected.
The Court finds that the claimant has failed to meet its burden of establishing
that the cause of the system failure of July 1984 was excepted under paragraph
4 of the Maintenance Agreement. Mr. Ayers’ testimony was inconclusive, and
there is some question as to his qualifications as an expert in the field of
electronics. Moreover, his testimony related to a number of things about which
he had no firsthand knowledge. A thorough examination of the record leaves the
Court with no better understanding as to the cause of the system failure.
The evidence in the record is not sufficient to establish the condition
precedent to respondent’s liability for breach of the Maintenance Agreement, in
that no cause for the system failure has been shown. Accordingly, the Court is
of the opinion to and does disallow the claim.
Claim disallowed.
OPINION ISSUED APRIL 30, 1986
NAOMI A. CLARK
VS.
DEPARTMENT OF COMMERCE
(CC—85—290)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIP,M:
On July 28, 1985, in a designated parking spot at Beech Fork
W.Va.]
REPORTS STATE COURT OF CLAIMS 75
Campground, claimant’s 1977 Ford LTD was vandalized. The four tires were
slashed, and the radiator and oil filter were damaged. The automobile, which is
titled in Tennessee solely in claimant’s name, was clearly visible from
claimant’s camp site. The incident occurred sometime after 12:00 midnight. The
repairs to claimant’s automobile amounted to $574.30.
Claimant testified that she and a friend were camping with her dog. The dog
barked at one point, but neither claimant nor her companion arose at that time.
The following morning claimant discovered the damage to her vehicle. The camp
sites on either side of claimant’s camp site were not occupied that evening.
Steven Bolar, park superintendent of Beech Fork State Park, testified that
entrance to the park is gained through one central booth. The gate remains open
until 10:00 p.m. After 10:00, only those people who are camping are permitted
into the park. That is the only access by vehicle. There is access by means of
the woods surroundimg the park. At 4:00 a.m. on July 28, 1985, individuals
inquired about the whereabouts of claimant and her companion’s camping site.
After being refused entrance to the park, they sent a note to claimant’s
trailer, allegedly of an emergency. Neither claimant nor her compamion
responded to the message. Mr. Bolar stated that park attendants had been
through the area in which claimant was camping six times on July 28 and found
no trouble. There are four thousand acres on the State Park.
The record in this case fails to disclose any negligence on the part of
respondent. Beech Fork State Park was properly patrolled on the evening in
question, and unauthorized persons were denied entry to the park area after
10:00 p.m. No negligence on the part of the respondent was established;
therefore, the claim must be denied.
Claim disallowed.
OPINION ISSUED APRIL 30, 1986
ELMER PACK & JANICE DAILEY
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—l30)
Thomas R. Parks, Attorney at Law, for claimants.
Andrew Lopez, Attorney at Law, for respondent.
LYONS, JUDGE:
In the evening of April 22, 1982, claimants Elmer Pack and Janice Dailey, the
granddaughter of Elmer Pack, were travelling by automobile from Williamson, Mingo
County, to the unincorporated community of Holden in Logan County.
76
REPORTS STATE COURT OF CLAIMS [W.Va.
Claimant Elmer Pack, who was operating the vehicle at approximately 25 miles
per hour, took Route 65 to U.S. 119 into Holden. In the area of Batchelder and
Trace Streets, he observed two signs. The first sign had an arrow pointing to
the left. The second sign read ‘One Lane Bridge.” Claimant Pack had not driven
this particular route since 1947. In 1947, one might have proceeded straight
onto Trace Street and over the Trace Creek bridge. Since that time, the bridge
over Trace Creek had been removed and a barrier erected to prevent traffic from
going into the creek. Traffic had been rerouted, turning left and crossing a
different bridge, one which had originally been a two—lane bridge but was later
made a one-lane bridge because the sidewalk on the bridge collapsed. On this
occasion, claimants proceeded onto Trace Street and drove into the creek.
Claimants seek $200,000.00 for personal injuries and for damage to the vehicle.
It is the position of the claimants that the respondent was negligent for
failing to erect a warning barrier and for failing to remove the “One Lane
Bridge’ sign.
There was conflicting evidence regarding the issue of whether Trace Street was
under the maintenance and control of respondent in 1982.
Eric O’Briant, who lived on Trace Street in April 1982, testified that when he
moved to that address in 1981, there was no bridge there; that there was a
barricade, and on one occasion O’Briant had witnessed respondent’s truck
replacing the barricade.
The evidence did not clearly establish that Trace Street is a part of the State
road system. Nor was there any evidence that respondent negligently erected
barriers at Trace Street in the area of the Trace Street bridge.
Ralph Brown, Jr., who had previously resided next to Eric O’Briant, testified
that the Island Creek Coal Company removed the bridge at the intersection of
Batchelder and Trace Streets and put up barriers. He described the barriers as
consisting of two or three barrels and “X” marks to prevent people from going
into the creek.
Harold Ronald Simmons, a research analyst with respondent, testified that he
could not say whether respondent actually ‘pulled maintenance On the road,” but
that Trace Street has been a part of the State highway system since 1933.
Parris Preston Young, a retired employee of the Island Creek Coal
Company, testified, that between 1979 and 1980, he helped remove the
Trace Street bridge. He was assisted by a crew in the employ of the
Island Creek Coal Company.
John Wilson Braley, District Bridge Engineer with respondent, testified that he
was under the impression that the Trace Street bridge was not included in the
State system. He felt that “the Trace Street bridge was merely a public road ... and, therefore, respondent did not
have possession of it.”
W.Va.]
REPORTS STATE COURT OF CLAIMS 77
However, the Court finds that the claimants have failed to prove, by a
preponderance of the evidence, that any negligence of the respondent caused
their injuries and disallows the claim.
Claim disallowed.
OPINION ISSUED
APRIL 30, 1986
MAYNARD KNOTTS,
INDIVIDUALLY, AND MAYNARD KNOTTS, AS GUARDIAN AND
NEXT FRIEND OF TRACY KNOTTS, AND ROBERT KNOTTS, MINORS
VS.
DEPARTMENT OF HIGHWAYS
(CC—8l—358a)
TONI GIANFRANCESCO, INDIVIDUALLY, AND TONI GIANFRANCESCO, AS
PERSONAL REPRESENTATIVE, NEXT FRIEND, AND NATURAL PARENT OF DUANE
GIANFRANCESCO, A MINOR, (DECEASED)
VS.
DEPARTMENT OF HIGHWAYS
(CC—8l—358b)
DALE F. MAYS, INDIVIDUALLY
VS.
DEPARTMENT OF HIGHWAYS
(CC—8l—358c)
P. Lee Clay, Attorney at Law, for claimants.
Andrew Lopez, Attorney at Law, for respondent.
WALLACE, JUDGE:
These three cases, arising out of the same event, were consolidated pursuant to
the agreement of the parties’ counsel. The claims arise out of an automobile
accident which took place on September 21, 1979 on U.
S. Route 250 near Glovers Gap, Marion County, West Virginia. Claimant Dale Mays
alleges he was injured in the accident. Claimant Maynard Knotts seeks damages
for the destruction of his vehicle and for the death of his spouse, Wanda Jean
Knotts, the driver of the vehicle. Toni Gianfrancesco’s minor child, Duane
Gianfrancesco, another passenger in the vehicle, was also killed.
It is alleged that the respondent failed to repair certain potholes, failed to
post adequate warning signs) and failed to maintain a guardrail at the scene of
the accident. The accident occurred on September 21, 1979 at approximately
10:15 p.m. Wanda Jean Knotts was driving her husband’s 1971 Oldsmobile in a
southerly direction on U.S. Route 250. The passengers in the car were claimant
Dale F. Maya, Duane Gianfranceso, and another minor, Daniel Smith. The vehicle
approached
78
REPORTS STATE COURT OF CLAIMS [W.Va.
a curve, went off the road, and landed upside down some distance from the
roadway. Claimants assert that respondent’s negligence, with respect to
potholes, the guardrail, and the absence of a warning sign, was the proximate
cause of the accident.
The action was bifurcated by leave of Court. A hearing on the issue of
liability was held on January 13, 1986. Claimants presented evidence which was
limited entirely to establishing the existence of the “defective” road
conditions alleged.
Claimants established that there was no warning sign at the approach to the
curve and that some of the posts on the guardrail showed signs of rotting.
There was conflicting evidence as to the existence, size, and location of the
alleged potholes.
It is not necessary in this case for the Court to make a finding with respect
to the alleged road conditions, because claimants failed to produce a scintilla
of evidence on the issue of proximate cause. Proximate cause is a vital and
essential element of a claimant’s case, and the claimant has the burden of
proving it to justify recovery in any action based on negligence.
Claimants have not established that the alleged road conditions were causally
related to the car’s leaving the highway. The mere existence of the alleged road
conditions, if proven, does not give rise to a presumption of liability, and
claimant’s are required to demonstrate that “but for” the conditions the
accident would not have occurred.
In the present case, claimant did not treat the issue of causation. Respondent,
on the other hand, suggested two theories of causation:
mechanical defect in the automobile and physical defect of the driver.
Moreover, the record indicates that it was raining on the night of the accident
and the roads were wet. Under the circumstances, the Court is unable to infer,
to the exclusion of all other reasonable inferences, that the alleged road
conditions were in any wise the cause of the accident on which the claims are
predicated.
Situations may arise where negligence, on the part of the respondent to
eliminate unusual hazards existing over a period of years and causing injury
and damages to persons and vehicles lawfully using said highway, presents a
moral obligation for which a claim should be allowed. Spradling vs. State
Road Commission, 5 W.Va. Ct.Cl. 77 (1949) . How— ever, the claimants herein have not established
that the alleged road conditions were unusually hazardous so as to warrant a
finding that the State was under a duty to post a warning sign or maintain a
guardrail.
Generally, the State is under no such duty, since the posting of road markers
and the erection of guardrails is discretionary. Cooper vs. Department of
Highways, 8 W.Va. Ct.Cl. 178 (1970);
Chartrand vs. State Road Commission, 5 W.Va. Ct.Cl. 98 (1950).
Claimants have not established that respondent was under a duty to erect a
warning sign or maintain a guardrail at the scene of the accident. They have
not established a breach of duty with respect to the potholes since the
existence, size, and duration of the alleged potholes is unclear. They have not
established causation with respect
W.Va.]
REPORTS STATE COURT OF CLAIMS 79
to any of the three alleged road conditions.
Accordingly, no liability on the part of the respondent being found, the Court
is of the opinion to and does disallow the claims.
Claims disallowed.
OPINION ISSUED
APRIL 30, 1986
DONNIE LEE MCIE
VS.
DEPARTMENT OF HIGHWAYS
(CC—82—159a)
AND
BETTY J. JEFFRIES,
ADMINISTPATRIX OF THE ESTATE OF EARL WILLIAM
JEFFRIES, DECEASED
VS.
DEPARTMENT OF HIGHWAYS
(CC—82—159b)
W. Dale Greene and Paul Zakaib, Jr., Attorneys at Law, for claimants.
Andrew Lopez, Attorney at Law, for respondent.
WALLACE, JUDGE:
Between 12:30 p.m. and 1:00 p.m., on July 5, 1980, Earl Jeffries, accompanied
by Donnie McIe, was operating his pickup truck in a southerly direction on
Route 4 and 20, Rock Cave, Upshur County. A
large tree fell over on top of the pickup truck, causing the death of the
driver, Earl Jeffries, and causing claimant Bonnie McIe to be paralyzed.
It is the claimants position that the aforementioned tree was close enough to
respondent’s right of way to be a hazard. Furthermore, claimants contend that
respondent had both actual and constructive notice of this hazard.
According to the testimony of Donnie McIe, he, Earl Jeffries and Mike Bond were
going to French Grove to Roscoe Gregory ‘ s used car lot at about noon on the day of the accident.
When they reached the garage, it was sprinkling and cloudy. Roscoe was not at
the used car lot. Claimant McIe, Earl Jeffries and Mike Bond left Roscoe
Gregory’s used car lot and proceeded to the Pioneer, a bar. Claimant and Earl
Jeffries stayed at the bar to have beer. When they left the Pioneer, Mike Bond
did not come with them. McIe stated that it was not raining when they went into
the Pioneer, nor was it raining when they came out of the Pioneer.
80
REPORTS STATE COURT OF CLAIMS [W.Va.
McIe testified that it was no more than a mile from the Pioneer to the point
where the tree fell on the truck. Route 20 is a two—lane asphalt road. At the
point where the tree fell on the truck, McIe said that the road was uphill and
in a curve. McIe does not remember anything about the weather other than that
it was raining. He does not remember whether it was windy at the time that the
tree fell on the truck.
There is conflicting evidence concerning the location of the tree in reference
to respondent’s right of way. Grover Cleve Withers, who had stayed at his
mother’s farm in the area of the accident on July 5, 1980, testified that the
tree was within 10 feet, possibly a little more, off of the travel portion of
Route 20. Withers also mentioned that there was ‘severe wind’ on July 5, 1980.
William C. Ganbell, Chief of the Engineering Plans and Maps Unit of the Right
of Way Division of respondent researched the 1924 plans for the vicinity near
French Creek Farm Hill. Gambell testified that an order of the County Court
pertaining to a road known as Buckhannon - Cleveland had been issued stating that there is a right of
way so acquired in the width of 40 feet. The property was assessed in the name
of C. D. Haynes in 1923, although the plans were in the name of C. E. Haines.
Gambell further testified that absent any right of way obtained by a deed or by
order, a statute width of 40 feet would apply to Route 20, a primary highway or
Class A road. Gambell ascertained that the distance from the center line of the
roadway to the stump of the tree is 32.5 feet.
Bernard Morrison, Survey Party Chief for respondent stated that he did a survey
of Route 20 south of French Creek Game Farm on March 24, 1983. Morrison
explained that he obtained the measurements for the tree stump by topographic
controls. He set up a control point and turned an angle at a distance to the
location of the stump in relation to his base line.
He determined that the stump is 42 inches in diameter and is located 12 1/2
feet from the right of way and 22 1/2 feet from the base line.
Claude C. Blake, claims investigator for respondent, had indicated in his
interrogatories dated November 30, 1984 that the tree in question was 5 1/2
feet off the State right of way. Blake testified that his answer was based on
the survey of Bernard Morrison. At the time, Blake felt that they were assuming
a 30-foot right of way instead of 20 feet.
The testimony was not conclusive in respect to whether or not the tree in
question was a dead tree and therefore a hazard. Although claimant introduced
some testimony that the tree which fell was a dead tree, respondent introduced
evidence showing that the tree was a green and healthy one. Two employees of
respondent, including an Operator II and an equipment operator, testified that
the tree was dead or partly dead. Another man employed by respondent until 1977
testified that he had been part of a crew in 1973 or 1974. The crew had removed
a sugar maple that was rotten. The tree in question was near the tree which had
been removed. This individual felt it was as rotten as the tree that they had
cut down. Mr. Oscar Friend, a longtime resident of the area stated that the
tree was rotten and that he had informed Gene Powers, Assistant Maintenance
Supervisor for Upsher County, of that fact. Gene
W.Va.J
REPORTS STATE COURT OF CLAIMS 81
Powers testified that there were green leaves on the tree and that he had not
received a complaint about the tree. Richard Ralph Walton, respondent’s boss of
a small garage at Kanawha Head in 1976, stated that he had not heard any
complaints about this particular tree.
This Court refused recovery in a claim wherein damage occurred to a vehicle
when the vehicle struck the limb of a live tree growing on the State right of
way when respondent lacked knowledge of the hazardous condition.
This was a live tree and there is nothing in the record to show that the
respondent had knowledge of the hazardous condition, or should have known or
foreseen that it might occur. Neither was there any notice to the respondent
that the limb was broken until that information was furnished by the claimant.
While the respondent in such a case may not unreasonably delay the removal of a
hazardous obstruction upon a State highway, neither will liability arise until
the respondent knows or should know that such a hazard exists. The law in West
Virginia is well established that the State is not an insurer of its highways,
and if there is not preponderant proof of negligence on the part of the State’s
employees, the user of the highway travels at his own risk. Widlan v. Dept.
of Highways, 11 Ct. Cl. 149 (1976) . The evidence in the instant claim consists of the
testimony of several individuals. This Court cannot conclusively determine the
condition of the tree. However, the Court is of the opinion that the tree was
not a completely dead tree for there was evidence at the time of the incident that
there were, in fact, leaves on the limbs of the tree.
There is no dispute between the parties that the tree stump of the tree is not
located on the State’s right of way. The stump was determined to be
approximately 32 feet from the centerline of Route 20.
In Wolford v. Dept. of Highways, 13 Ct.Cl. 348 (1981), a tree case in
which recovery was permitted, the distance of the tree from the middle of the
highway was either 14 feet, 2 inches or 22 feet, 3 inches. The Court stated
that “it is impossible. .
.to judge whether the
tree was or was not on the State right of way without resorting to speculation.
In any case, the tree was close enough to the road to present a definite
hazard.” (Emphasis supplied.) The estimate of the distance of the stump
from the centerline of the road in the case a hand is 32.5 feet. The Court is
of the opinion that the tree which fell on the vehicle was not close enough to
the respondent’s right of way so as to pose a hazard which should have been
apparent to the respondent and, therefore, denies these claims.
Claim disallowed.
82
REPORTS STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED APRIL 30, 1986
RAYMOND L. SMITH
VS.
DEPARTMENT OF HIGHWAYS
(CC-85--320)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIIN:
At approximately 11:00 p.m., on July 28, 1985, claimant was operating his Audi
GT Coupe in a southerly direction on Interstate 79, approximately four miles
from Jane Lew, Harrison County.
According to the testimony of claimant, it was dark and the road was dry.
Claimant was driving at approximately 55 miles per hour and passed two signs,
‘Under Construction” and “End Construction,” respectively. After the last sign,
claimant travelled five or six more miles, and his vehicle struck a depressed
area on a bridge caused by roto—milling. As a result, three tires and four tire
rims were damaged and the vehicle was knocked out of alignment. Claimant
alleges damages to the vehicle in the amount of $1,449.00.
Claimant testified that there were two vehicles in front of him, a white
automobile and a truck. These vehicles slowed, and claimant attempted to pass
the automobile. As claimant’s vehicle became even with the automobile, his
vehicle hit the depression and the two front tires blew out. The truck stopped
and let claimant’s vehicle proceed across the road onto the berm.
After the accident, claimant contacted respondent and went to respondent’s
district office. He was informed that respondent’s road crew had “roto-milled”
part of the bridge the day before the accident. There were no warning signs
posted that roto-milling was being performed on the bridge.
It is the opinion of the Court that respondent was negligent in failing to warn
the travelling public of a hazardous condition on an interstate bridge. See
Davis v. Dept. of Highways, 12 Ct.Cl. 31 (1977). The Court therefore makes an
award to claimant in the amount of
$1,449.00.
Award of $1,449.00.
W.Va.]
REPORTS STATE COURT OF CLAIMS 83
OPINION ISSUED MAY
23, 1986
CODEX CORPORATION
VS.
BOARD OF REGENTS
(CC—B 5—159)
Kenneth E. Kincaid, Attorney at Law, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
WALLACE, JUDGE:
Claimant, Codex Corporation, a Massachusetts based manufacturer of technical
equipment, supplied the West Virginia Network for Educational Telecomputing
(hereinafter referred to as WVNET), a State agency under the auspices of the
Board of Regents, respondent herein, with twenty—three modems, devices which
permit the transmission of signals between computers over telephone lines. This
transaction was made under a putative lease agreement dated October 2, 1979 and
executed by Gary Wenger, Assistant Director at that time of WVNET. Under the
terms of the lease agreement, WVNET was supplied with modems for terms of 36
months for six of the modems and 48 months for 17. WVNET made monthly rental
payments on the equipment through October 1981 when it returned the equipment
to claimant’s office in Mansfield, Massachusetts and indicated by letter that it
was canceling the agreement.
Claimant filed its Notice of Claim alleging breach of contract and seeking
$97,536.00, the balance of payments due under the unexpired leases. Prior to
the hearing on the matter, claimant and respondent stipulated most of the
material facts.
The only issue remaining for resolution was the respondent’s contention that
since the 1979 lease agreement was not executed pursuant to the laws and
regulations governing State purchase orders and competitive bidding, it was
void and of no effect.
This matter came on for hearing on November 13, 1985. The parties each
stipulated that “(n)o purchase order was ever issued by the Department of
Finance and Administration for the State of West Virginia approving the lease
agreement.” Moreover, Kathy Klein, Assistant Director of Purchasing of the
Department of Finance and Administration, testified that her department had no
record of a competitive bid or the issuance of a purchase order in connection
with the 1979 lease of the modems from claimant. John L. Hays, Business manager
of WVNET, testified that WVNET also had no record of compliance with State
purchasing regulations. Finally, William Phelps, claimant’s manager of
corporate credit and collections, stated that his records did not show that the
1979 lease agreement was the result of a competitive bid or other procedure
authorized by law.
The West Virginia Code of 1931, as amended, 5A—3—1 et seq, prescribes certain
procedures for the procurement of commodities by State agencies. Contracts for
commodities must be evaluated and approved by the Director of Purchasing of the
Department of Finance and Administration.
84
REPORTS STATE COURT OF CLAIMS [W.Va.
Moreover, contracts which exceed $2,000.00 must be awarded on the basis of
competitive bidding. WV Code of 1931, as amended, 5A—3—12. Finally, contracts
must be signed by the commissioner, and, if they require more than six months
to fulfill, must be filed with the State Auditor. WV Code of 1931, as amended
5A-3—l5.
The lease agreement in the present case involved well over $2,000.00 and would
require up to four years for fulfillment. The testimony indicates that WVNET
and claimant did not comply with the statutory procedures established for
government procurement contracts. It appears that the modems were acquired on
the open market and that the Department of Finance and Administration was
bypassed altogether in a manner contrary to applicable law.
The Code of WV of 1931, as amended, 5A-3—l9, provides, in pertinent part:
“If a department purchases or contracts for commodities contrary to the
provisions of this article..., such purchase or contract shall be void and of
no effect.” (Emphasis supplied).
Since the 1979 lease agreement was void ab initio, the subsequent cancellation
thereof by the State did not constitute a breach of contract. No contract had
ever been formed, and claimant cannot recover damages for breach or otherwise
enforce any rights against the State under a void contract.
The parties agree that the State returned the modems to claimant no later than
October 1981 and that the full rental price as set forth in the lease agreement
has been paid through that month. Accordingly, the Court need not consider
whether equity requires that claimant be compensated for the fair rental value
of the equipment for the period of actual use.
Accordingly, inasmuch as the alleged contract upon which claimant brings this
action for breach was void and unenforceable, the Court is of the opinion to
and does disallow the claim.
Claim disallowed.
OPINION ISSUED MAY 23, 1986
COMMERCIAL UNION INSURANCE CO., AS SUBROGEE OF CHARLES WILLIAM MOONEY,
AND CHARLES WILLIAM MOONEY, INDIVIDUALLY
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—355)
Claimant, Charles William Mooney, appeared in person.
W.Va.)
REPORTS STATE COURT OF CLAIMS 85
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On February 12, 1983, in the afternoon hours, claimant Charles William Mooney’s
vehicle, a 1982 Chevrolet Cavalier, was struck by several pieces of cement
while proceeding under a bridge on Route 60 at Cedar Grove, Kanawha County.
Claimant Mooney testified that the weather was fair. He further testified that
several pieces of cement hit his vehicle. One piece hit the top of the car, and
one came through the windshield. Claimant Mooney submitted photographic
evidence showing the damage to the vehicle. The vehicle sustained damage in the
amount of $947.57. Claimant Mooney incurred the first $50.00 of the damages in
accordance with the deductible provision in his insurance policy.
It is the claimant’s contention that the concrete which hit his vehicle came
from the bridge. However, claimant did not introduce proof to support this
allegation. A finding of negligence by respondent would require speculation,
and the Court cannot speculate. Arthur, Adm’r. vs. Dept. of Mental Health, 12
Ct.Cl. 124 (1978). There being no basis for presumption of negligence on the
part of the respondent, the claim is denied.
Claim disallowed.
OPINION ISSUED MAY 23, 1986
FARMERS INSURANCE GROUP COMPANY, AS SUBROGEE OF MARGARET GERRITSEN AND
ADRIAN GERRITSEN
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—2l6)
Margaret Gerritsen appeared for the claimant.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
Claimant’s subrogor, at about 4:00 p.m., on April 4, 1985, was driving her
200SX Datsun on Oakwood Road in the vicinity of the South Hills Bank. She was
accompanied by Phyllis Turley. It was raining and the wind was blowing. A tree
limb hit the top of her vehicle. The vehicle sustained damage in the amount of
$231.84.
The record reflects that the vehicle involved is titled in both claimant’s
subrogor’s name and that of her son, Adrian Gerritsen. The Court amended the
style of the claim to include the insurer, Farmers Insurance Group, as subrogee,
and Adrian Gerritsen.
86 REPORTS STATE COURT OF CLAIMS [W.Va.
Claimant’s
subrogor testified that the tree was located on respondent’s right of way. She
had not driven on that route prior to this accident. She alleged that the tree
from which the limb fell was a dead tree. However, no evidence was introduced
to support her allegations. Phyllis Turley confirmed claimant’s subrogor’s
testimony.
The evidence is convincing that the storm, consisting of high winds and rain,
blew severely enough to break the tree limbs. However, the accident was not the
result of any negligence on the part of respondent. Shortridge v. Dept. of
Highways, 11 Ct.Cl. 45 (1975> . Accordingly, this claim must be denied.
Claim disallowed.
OPINION ISSUED MAY
23, 1986
SHELBY B. MELVIN
VS.
BOARD OF REGENTS
(CC—82—308)
Randall L. Veneri, Attorney at Law, for claimant.
Robert D. Pollitt and John Polak, Assistant Attorneys General, for respondent.
GRACEY, JUDGE:
Claimant, in her capacity as Chairman of the Business Education Department at
Watoga High School, was attending a competition for Future Business Leaders of
America on April 24, 1982. She had accompanied a number of students to West
Virginia Tech in Montgomery. The competition was a single—day function, and
claimant was compensated for her attendance in her capacity as a grader for a
Shorthand II Competition. According to the testimony of claimant, it was a
sunny day and normal sediment only covered the sidewalk. At approximately 1:00
p.m., claimant, accompanied by four students, travelled upon a sidewalk on
campus from the student center where they had eaten lunch to another area of
the campus. Sandra Moye was walking with Lisa Corner approximately five feet in
front of claimant. Gaylon Akers was walking behind those two, and Michelle Akel
was walking across from claimant on the lower side of the sidewalk. Claimant
fell and fractured her left ankle. Claimant alleges that this section of the
walkway was improperly maintained and is therefore unsafe. She seeks damages in
the amount of $100,000.00 for pain and suffering.
The testimony revealed that claimant incurred medical expenses as a result of
this accident. She did not have to expend any money for these bills. Claimant’s
insurance carrier covered her medical costs. Worker’s Compensation reimbursed
claimant’s insurance carrier. Im addition, claimant received temporary total
disability benefits and a 2%
W.Va.J
REPORTS STATE COURT OF CLAIMS 87
permanent partial disability award from Workers Compensation.
Claimant testified that the two sections of sidewalk were of uneven levels, and
this fact caused her fall. There was a space between two sections of sidewalk.
Claimant was walking on the right side or higher level of the sidewalk parallel
to the space between the two sections of the sidewalk. It was estimated that
one section of the sidewalk was approximately one inch higher than the other
section.
The Court finds that respondent failed to maintain the sidewalk in a proper
manner. However, it appears that the claimant herself was negligent in failing
to maintain an adequate lookout upon the sidewalk where she was walking. Under
the doctrine of comparative negligence, the Court is of the opinion that the
negligence of the claimant was equal to or greater than the respondent’s and
disallows claim.
Claim disallowed.
OPINION ISSUED JULY 3, 1986
ROBERT B. MORRISON
VS.
DEPARTMENT OF MOTOR VEHICLES
(CC—85--206)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIPN:
Claimant Robert B. Morrison alleges that the sum of
$2,989.50, plus interest, is owing to him with reference to his employment by
the respondent, the Department of Motor Vehicles. On November 1, 1980, then
Commissioner Joseph Condry had advised him of a salary increase of $43.00 per
month. The salary increase was processed and reflected in the payroll and in a
check issued for the November 1 to November 15, 1980 pay period. However, the
salary increase had been, in the meantime, disapproved. The check was not given
to the claimant but was redeposited. A supplementary payroll was prepared for
the period, and a payroll check given to the claimant for a salary which did
not include the salary increase. Nor did his subsequent salary checks include
any increase until salary increases of July 1, 1981 and July 1, 1984. His
employment by respondent was terminated, by his resignation, effective October
16, 1984.
Claimant contends that the salary increase in question was not properly taken
away from him; that he is entitled to the additional $43.00 per month for the
months of his continued employment from November 1, 1980, plus interest.
88
REPORTS STATE COURT OF CLAIMS [W.Va.
The evidence disclosed that on or about November 12, 1980, virginia
L. Roberts replaced Joseph Condry as Commissioner of the Department of Motor
Vehicles. She testified that, upon assuming office, she had found on her desk
an envelope containing forms which indicated a disapproval, by the Department
of Finance and Administration, of personnel actions pertaining to three
employees, one being the salary increase of the claimant; that she then caused
the supplementary payroll to be prepared; that she was not the person who
disapproved the salary increase of the claimant.
Lowell D. Basford, acting director of the West Virginia Civil Service System,
testified that in November of 1980 the claimant was an exempt employee, not
covered under the civil service regulations, simply serving at the will and
pleasure of the Commissioner since claimant’s rehiring and reclassification in
1977.
It appears to the Court that the issue, as to the manner in which the claimant
was denied the salary increase, is moot. At the conclusion of claimant’s
evidence, the respondent moved the Court to dismiss the action upon several
grounds, one of which was to the effect that a two—year statute of limitations
barred the action. Claimant’s Notice of Claim was filed May 22, 1985, about
four and a half years after November 16, 1980, the date when the wrong, if in
fact there was a wrong, was committed. The two—year statute of limitations,
stated in West virginia Code 55—2-12, is applicable. (Shillingburg v.
Railroad Maintenance Authority, CC—85-104, Order entered November 15, 1985)
This Court is prohibited from taking jurisdiction of any claim barred by such a
limitation (W.Va. Code 14—2-21). Accordingly, respondent’s motion to dismiss is
sustained.
This claim is dismissed.
OPINION ISSUED JULY 3, 1986
DOMINIC & MARY L. STAFFILENO
VS.
DEPARTMENT OF HIGHWAYS
(CC—83—2l2)
David N. Dittmar and James P. Steele, Attorneys at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAN:
On August 30, 1982, at about 2:20 p.m., claimant Mary L. Staffileno, age 20,
was operating a 1978 Chevette titled in the name of her father, claimant
Dominic Staffileno, in a northerly direction on State Route 88, from West
Liberty to Bethany, in Brooke County, on her way home to Wellsburg. She was
then a commuting student at West Liberty State
W.Va.J
REPORTS STATE COURT OF CLAIMS 89
College and held part—time employment as a clerk in a dress shop at
Steubenville, Ohio. The weather was clear and dry. The highway was two—lane
asphalt with many hills and curves. Descending a hill, and after rounding a
sharp curve to her left, and approaching a right turn into a one—lane bridge,
at a speed she estimated at 20 to 25 miles per hour, she encountered gravel on
the highway as she was passing an oncoming vehicle. Her further account of the
incident was that her car skidded on the gravel, went completely off the paved
surface to the berm on her right, then back across the highway and nosed into a
ditch and embankment on her left. She suffered no serious or permanent injury,
suffering only headaches and pain in her right arm for several weeks.
The automobile, recently purchased for $2,500.00, was damaged beyond economical
repair. Claimant Dominic Staffileno seeks an award of $3,000.00. Claimant Mary
L. Staffileno seeks an award of $2,000.00. Claimants alleged that respondent
Department of Highways was responsible for the presence of the gravel on the
highway and failed to warn the claimants, thus causing the accident.
The evidence showed that a crew of respondent was cleaning the ditch on the
right side of the highway on that day; that the work had been done, in the area
where the gravel was, earlier that same day. The work is known as “pulling
ditches”. Accumulations of material in drainage ditches is pulled from the
ditch, by a grader, to the berm or highway. It is then scooped up by an endloader
and hauled away in trucks. The amount of residue, or debris, left on the
highway surface, is ordinarily minimal, and may vary with the condition of the
highway surface, skill of the eridloader operator, etc.
From the evidence, it appears that the material on the highway was, in fact,
placed there by respondent’s ditch cleaning operation. The evidence was
conflicting as to the amount of debris on the highway. Brooke County Deputy
Sheriff Michael H. Allman, who made the accident investigation, recalled a
shallow cut in the highway surface and described the debris as consisting of
gravel and dirt half an inch to an inch deep over a distance of ten or twelve
feet. John J. Eckersberg, another Deputy Sheriff who came to the accident
scene, observed it with his fellow officer, and recalled, ‘As I remember the
gravel patch, I don’t believe there was any more than — it wasn’t any more than two and a
half feet in diameter, roughly.’ James Lawrence McCune, a Safety Inspector for
respondent, coincidentally arrived at the scene shortly after the accident. He
testified that ‘There was a light —— some light debris on the northbound lane where some work
had been performed, but it was not uncommon for that type of operation... It
was just a real light, sparse material lying on the road surface.”
Claimant Mary L. Staffileno testified that, before she encountered the debris,
where her accident occurred, she had passed no flagman or warning sign.
Generally, the function of flagmen, in such a ditch cleaning operation, is to help
motorists safely pass the immediate work site where equipment in use is denying
normal use of a lane of the highway. The flagmen are, therefore, just ahead of,
and just behind, the equipment. At the time of the accident, the ditch—cleaning
operation had progressed northerly, across the bridge, and a substantial
distance out of sight of the accident scene. Signs are used to warn of
90
REPORTS STATE COURT OF CLAIMS [W.Va.
a construction area being entered. Asked whether he had observed what signs
were present, Safety Inspector McCune testified that to the best of his
recollection there was a Men Working sign, with a Flagman Ahead sign following
that approximately three to five hundred feet. However, no witness testified
that any such sign was placed where it could have been seen or passed by
claimant Mary L. Staffileno before encountering the debris on the highway.
Respondent’s flagman, William Gillies, south of the working equipment,
testified that the signs, for northbound traffic, were five to six hundred feet
behind him. Signs are moved, as the flagmen move, with the progress of the
work.
The Court is not satisfied that, by a preponderance of the evidence, the
respondent is guilty of negligence. The quantity of debris on the highway, from
the ditch—cleaning operation, does not appear to have been excessive, nor such
as to have imposed a duty upon the respondent to warn motorists of its
presence. Geraldine May McCarthy, Admin. of the Estate of Robert Eugene
McCarthy v. Dept. of Highways, 12 Ct.Cl. 139 (1978)
Claim disallowed.
OPINION ISSUED JULY 10, 1986
JOSEPH MULLINS and DORA MULLINS
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—209)
R. Lee Booten, II, Attorney at Law, for claimants.
Andrew Lopez, Attorney at Law, for respondent.
LYONS, JUDGE:
This claim arises out of an automobile accident which took place on April 9,
1984, on U.S. Route 52 near Taylorsville, Mingo County.
Claimant Joseph Mullins was injured in the accident and seeks damages for his
injury and the resultant medical expenses. Claimant Dora Mullins seeks damages
for the loss of her Volkswagen automobile and for loss of consortium.
It is alleged that respondent failed to repair two potholes and failed to
properly maintain water drainage at the scene of the accident. The accident
occurred on April 9, 1984 between 9:00 and 10:00 p.m. Claimant was driving his
wife’s Volkswagen automobile in a northerly direction en route to meet his wife
in Taylorsville. Claimant was alone in the vehicle at the time. Claimant’s
testimony revealed that it was dark and raining steadily on the evening of the
accident. Claimant approached an S-shaped curve and swerved to the left to
avoid a second pothole. The front tire of the automobile dropped into the hole.
The automobile’s tire blew out. After claimant’s automobile struck the second
pothole,
W.Va.j
REPORTS STATE COURT OF CLAIMS 91
he did not have the automobile under control. The automobile proceeded into an
accumulation of water on the road and then veered off the road and overturned
into a ditch.
Claimant crawled up to the road surface and was picked up by a friend, Robert
Justice, who transported claimant to his mother’s house.
Claimant refused to go to the hospital that evening, but his mother took him to
Logan General Hospital the next day. Claimant was then transported by ambulance
to Charleston Area Medical Center where he was treated for a broken neck.
Claimant remained at that facility until April 21, 1984, when he was released.
The parties submitted the deposition of Dr. Tony C. Majestro taken February 4,
1986. Dr. Majestro stated the following prognosis: “Healing of this fracture is
usually satisfactory. He should be able to return to his original employment
after complete healing of the fracture.”
There is conflicting evidence in the record concerning the size of the
potholes. The claimant described the first pothole as being 10 to 12 inches
wide and approximately 6 to 8 inches deep. He indicated that the second pothole
was approximately 31/2 feet in length, 16 to 18 inches in width, and 10 to 12
inches in depth.
Trooper B. R. Chafin, who investigated the accident, confirmed the fact that
there was a large section of water on the road at the time. When queried by the
Court, Trooper Chafin stated that he did not observe any particularly large potholes
at the scene.
Claimants’ witness, Mrs. Gladys Burke, testified that on December 7, 1983, she
reported water “had went across the road. . .“ at the “Andy Farley” curve which she described as an “S’
curve. She also reported water on the road in two other places at the same
time. She telephoned the “State road garage’ and spoke to a woman who
identified herself as “Tina.”
It is the opinion of the Court that the record establishes that respondent was
negligent in failing to maintain the drainage of water onto the road at this
site. However, the record establishes that the claimant was familiar with the
existence of potholes in the road and with the propensity of water to
accumulate on the surface of the road at this particular location. Under the
doctrine of comparative negligence, the negligence of the claimant in traveling
the road at night, in the rain, and known to him to be in disrepair, was equal
to or greater than the negligence of the respondent in its failure to maintain
the stretch of water. Hatfield v. Dept. of Highways, 14 Ct.Cl. 220
(1982) .
Accordingly, the claim
is disallowed.
Claim disallowed.
92
REPORTS STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED JULY
29, 1986
AETNA CASUALTY & SURETY, AS SUBROGEE OF ROBERT
W. DAVIS, AND ROBERT W.
, INDIVIDUALLY
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—2l5)
Robert W. Davis, subrogor, appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant’s subrogor testified that he was driving his vehicle, a 1980 Chevrolet
Monza, on Clear Fork Road, from Beckley to Whitesville, West Virginia, at
approximately 7:00 p.m., on October 24, 1984, when the vehicle hit a ditch. It
was dark at the time, and he was travelling at 30—40 miles per hour. He
estimated the ditch to be between eight and ten inches deep and two feet wide.
Claimant had travelled the same route several days earlier and had not observed
the ditch.Th lcr left control arm, a shock absorber, and a wire wheel cover
were replaced at a cost of $232.94. Robert Davis paid $100.00, the amount of
his deductible, and the subrogee insurance company reimbursed him for
$132.94.
Claimant’s subrogor further testified that he had observed respondent’s
equipment at this location. There was construction work in the area. There were
neither warning signs nor flagmen present near the ditch.
The Court finds that the respondent was negligent in failing to properly
maintain the construction area. Shirley R. Adams and Billie Adams v. Dept.
of Highways, 14 Ct.Cl. 279 (1982). An award of $100.00 to claimant’s
subrogor and $132.94 to subrogee insurance company is accordingly made.
Award of $100.00 to Robert W. Davis.
Award of $132.94 to Aetna Casualty & Surety, as subrogee of Robert W.
Davis.
OPINION ISSUED JULY
29, 1986
LARRY FARLEY AND LINDA FARLEY
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—271)
Claimants appeared in person.
W.Va.]
REPORTS STATE COURT OF CLAIMS 93
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
This claim was originally styled in the name of Larry Farley, but when
testimony indicated that the vehicle, a 1985 Datsun Maxima, was titled in the
name of Larry Farley and Linda Farley, the Court, on its own motion, amended
the style to include Linda Farley as an additional claimant.
Claimant Linda Farley testified that she was travelling north on Route 85, in
the vicinity of the Well’s plant, when her vehicle hit a pothole. The incident
occurred on April 5, 1985, at approximately 6:50 a.m. Claimant Larry Farley
testified it occurred approximately 3/10 of a mile north of a railroad
crossing, at Wharton, Boone County, West Virginia. The weather conditions that
day were good. Another vehicle, travelling south, cut over and crowded
claimant’s vehicle. For that reason, she went to the right of the pothole to
avoid it. The left tire of her vehicle struck the pothole. Claimant Linda
Farley testified that she was aware that the pothole was there. She described
it as being, “
about the whole lame
of traffic. A tire and aluminum rim were replaced for a total cost of $346.86.
The State is neither an insurer nor a guarantor of the safety of motorists on
the highways. Adkims v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In
order for the respondent to be found liable for the damages incurred, proof of
notice, either actual or constructive, of the defect in question must be shown.
As there was no such evidence presented, the claim must be denied.
Claim disallowed.
OPINION ISSUED JULY
29, 1986
NADINE J. MATTHEW
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—172)
Claimant’s husband, Virgil Matthew, appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAN:
This claim was originally styled in the names of Virgil Matthew and
Nadine J. Matthew, but when the testimony indicated that the vehicle, a
1972 Ford LTD, was titled solely in the name of Nadime J. Matthew, the
Court, on its own motion, amended the style to reflect that fact.
94
REPORTS STATE COURT OF CLAIMS [W.Va.
The claimant’s husband, Virgil Matthew, testified that while operating his
wife’s vehicle on Route 5 at Prenter Hollow, Boone County, West Virginia, the
vehicle struck a pothole. Claimant was a passenger in the vehicle at the time.
The incident occurred on April 14, 1985, at approximately 7:00 p.m., or after
dark. The claimant’s husband was travelling 29 to 30 miles per hour and had the
vehicle’s lights on low beam. As a result of the incident, a tire and hubcap
were damaged in the amount of $161.13.
Claimant’s husband testified that he was familiar with that section of Route 5
and that he had observed the pothole previous to the incident. He also
testified that he had notified respondent’s office in Boone County, by
telephone, a month prior to this incident. He could not identify the person who
took his complaint. He complained about the general condition of Route 5 but
not about this specific pothole. Although the respondent may have had actual
notice of the poor condition of this road, the claimant’s husband was familiar
with the route and should have taken precautions necessary to avoid striking
the hole in the road.
It is the opinion of the Court that . although the respondent may have been negligent, the
negligence of claimant’s husband was equal to or greater than that of the
respondent. The Court therefore denies the claim.
Claim disallowed.
OPINION ISSUED JULY
29, 1986
CLETON E. MYERS
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—52)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
This claim came on for hearing on October 4, 1985, upon the facts and
respondent’s Motion to Dismiss.
The basis of the Motion to Dismiss is that the claim is barred by the statute
of limitations. Claimant alleges that on August 19, 1981, as a mechanic
employee of respondent, he had stored his work tools in respondent’s shop, his
place of employment in Thomas, Tucker County, in a locked tool box in a
cabinet. The shop was burglarized and his tools and respondent’s dump truck
were stolen. Claimant submitted an evidentiary list for the lost tools. The
cost of the tools offset by
W.Va.]
REPORTS STATE COURT OF CLAIMS 95
claimant’s insurance recovery amounts to $1,441.24. Claimant originally filed
the claim in the amount of $1,700.00.
Respondent moved to dismiss the claim as it is barred by the applicable statute
of limitations. Under W.Va. Code 55—2—12, this claim must have been brought
within two years from the date of the injury. Claimant filed this claim on
February 20, 1985.
The Court, under the provisions of W.Va.Code 14—2—21, does not have
jurisdiction over a claim which is not filed within the time specified by the
applicable statute of limitations. Frisco vs. Department of Natural
Resources, 13 Ct.Cl. 287 (1980). The claimant’s failure to file this claim
within a two—year period after April 19, 1981 requires this Court to dismiss
the claim.
The respondent’s motion to dismiss is sustained.
Claim dismissed.
OPINION ISSUED JULY 29, 1986
DENNIS W. SUTTON AND LINDA A. SUTTON
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—268)
Claimant Linda A. Sutton appeared in person,
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIPN:
This claim was originally styled in the name of Linda A. Sutton, but when the
testimony indicated that the vehicle, a 1982 Dodge Aries, was titled in the
name of Linda A. Sutton and Dennis W. Sutton, the Court, on its own motion,
amended the style to include Dennis W. Sutton as an additional claimant.
Claimant Linda A. Sutton testified that she was operating her vehicle on 1-64
between the South Charleston and Kanawha Turnpike Exits, Kanawha County, West
Virginia, when the vehicle struck a hole in the pavement. The incident occurred
on March 27, 1985, at approximately 2:00 p.m.. The weather was clear. The
Interstate is three lanes wide at the location of the incident. Linda A. Sutton
was travelling west in the center lane of the Interstate when her vehicle
struck a hole located in the center lane. She testified that she had travelled
the road daily, but had not observed the pothole prior to this incident. To the
best of her knowledge, she believed the pothole to have been present less than
24 hours. As a result of striking the hole, it was necessary to replace a tire
and to have the vehicle realigned for a total cost of
$162.60.
96
REPORTS STATE COURT OF CLAIMS [W.Va.
Ray Harmon, respondent’s employee, testified that he was involved in the
maintenance of the section of 1—64 which is the subject of this claim. He
testified that he thought he repaired the hole before it was struck by claimant
Linda Sutton. However, Mr. Harmon was not certain of the date on which the
repairs were made.
Mr. Herbert C. Boggs, Interstate Supervisor, District I, for respondent,
testified that on March 27, 1985 he received a call informing him that there
was “a blow up in the concrete” at the site of this incident. He then directed
a crew to repair this section of the Interstate. Mr. Boggs testified that the
notification to him was received after claimant Linda Sutton’s incident.
The evidence in this record indicates that the defective condition of the
pavement appeared suddenly and that the respondent promptly moved to repair the
defect as soon as it became aware of the problem. Moore v. Dept. of
Highways, CC-85—153 (February 19, 1986) . Banhart v. Dept. of Highways, 12 Ct.Cl. 236 (1979). Adkins V. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947),
holds that the State is neither an insurer nor a guarantor of the safety of the
motorists on its highways. The Court is of the opinion that negligence on the
part of the respondent has not been established, and therefore, the Court
denies the claim.
Claim disallowed.
OPINION ISSUED
AUGUST 16, 1986
SUSAN MANN
VS.
DEPARTMENT OF HUMAN SERVICES
(CC—86—36)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAM:
Claimant Susan Mann contacted respondent agency in January, 1985, to obtain
information about a program of respondent regarding delinquent child support
payments. Claimant’s divorce was finalized in February, 1983, in Taylor County
Circuit Court. By the terms of the divorce, claimant’s former husband was
required to pay claimant $50.00 a month in child support. Since the divorce, he
has paid claimant $330.00.
An employee of respondent, now retired, Mrs. Campolio, suggested to claimant in
January, 1985 that claimant attach her former husband’s federal income tax
refund. At the direction of Mrs. Campolio, claimant supplied respondent agency
with names and addresses of her husband’s possible places of employment. She
remained in contact with Mrs. Campolio as late as October 4, 1985. On that
date, Mrs. Caiupolio
W.Va.)
REPORTS STATE COURT OF CLAIMS 97
advised claimant that she lacked the forms necessary to complete the federal
income tax wage withholding. In the beginning of November, 1985, when claimant
again contacted the respondent agency’s office, she was advised by another
employee that the deadline for filing the necessary form had passed. As a
result of the misinformation supplied claimant by respondent’s employee,
claimant seeks $865.00 which is the amount her husband was required to pay in
child support as of December
31, 1985.
Claimant testified that she was unable to provide respondent agency with any
statement of fact supporting her former husband’s entitlement to an income tax
refund for the year 1985. She further testified that she was unaware whether or
not her husband received an income tax refund in 1985 or ‘whether he had to pay
income tax for that year.
Mrs. Campolio testified that the statements of claimant were correct. She
further testified that she could never locate a place of employment for
claimant’s former husband. She confirmed that if the respondent agency was
unable to locate an individual, the agency could not provide the service in
question. When queried by the Court, she stated that she never had sufficient
information to file the necessary forms in the case of claimant. The possible
places of employment which claimant supplied were insufficient.
On the basis of this record, the Court finds that to permit recovery in this
instance would require speculation on its part. The record lacks a showing
that, had the necessary forms been filed before the appropriate deadline,
claimant would have received funds. The Court must, therefore, deny the claim.
Claim disallowed.
OPINION ISSUED SEPTEMBER 25, 1986
J. W. BAUER
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—358)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAN:
Claimant was operating his 1981 Chevrolet automobile in a westerly direction on
February 1, 1985, between 8:00 and 9:00 p.m. on MacCorkie Avenue at 58th
Street, Kanawha City, when the automobile struck the concrete curb of the
median. Claimant originally filed the claim with the respondent being the West
Virginia Court of Claims. The Court, on its own motion, amended the style of the
claim designating Department
98
REPORTS STATE COURT OF CLAIMS [W.Va.
of Highways as respondent. Claimant was alone in his vehicle and proceeding
west when this incident occurred. The impact with the curb resulted in damage
to the tire of the vehicle in the amount of $54.38.
Claimant testified that, at the time of the incident, it was dark and the
pavement was dry. He was proceeding at approximately 40 to 45 miles an hour to
Kanawha City. He stated that, at this point, there is a turn lane. He inadvertently
drove the vehicle into the turn lane and proceeded to drive into the curb of
the median strip which was beyond the intersection. Claimant alleges negligence
on the part of the respondent in failing to taper of f this section of the curb
of the median which has deteriorated. The corresponding curb on the alternate
side of the median has been tapered off. The section of the curb which
claimant’s vehicle struck is missing a big chunk of concrete.
The record discloses that claimant was proceeding in the wrong lane of traffic
and struck the curb of the median; and that the accident was not caused by the
negligence of the respondent. Accordingly, the Court is of the opinion to, and
does, disallow the claim.
Claim disallowed.
OPINION ISSUED
SEPTEMBER 25, 1986
ARTHUR L.
CORNETTE, JR.
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—367)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAN:
Claimant seeks $483.02 for damages to his automobile, a 1976 Honda Civic Wagon.
On February 11, 1985, claimant had parked his vehicle on the third level of a
multilevel municipal parking lot in Beckley. The vehicles are parked under a
cement structural building. There is no artificial lighting. It was damp,
moist, and cold, and there was ice present on February 11, 1985.
Claimant testified that his vehicle was between the third and second levels of
the structure and proceeding down toward the exit when the vehicle slid on ice
and collided with another vehicle. The other vehicle was proceeding from the
lower entrance level to the upper levels. Claimant’s vehicle sustained damages
to its left fender, left part of the bumper, and part of the frame. Claimant
was travelling at approximately 12 miles per hour and was not utilizing the
vehicle’s headlights when this incident occurred.
W.Va.j
REPORTS STATE COURT OF CLAIMS 99
The incident occurred inside the municipal parking structure maintained by the
City of Beckley. A ‘municipality’ is defined in W.Va. Code 8-1—2(a) (1) as
including any Class I, Class II and Class III city and any Class IV town or
village. The city of Beckley is included in this classification. The definition
of “State agency” specifically excludes “municipalities.” W.Va. Code 14—2-3.
This Court lacks jurisdiction over this claim, and therefore disallows the
claim.
Claim disallowed.
OPINION ISSUED SEPTEMBER 25, 1986
JAMES A. COUGHLIN, JR.
(CC—85—138)
AND ALVIN E. GARDNER
(CC—85—141)
VS.
DEPARTMENT OF HIGHWAYS
Claimants appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAN:
Claims CC—85—138 and CC-85—141, filed by James A. Coughlin, Jr. and Alvin E.
Gardner, were consolidated for hearing.
Each of the claimants were employed by respondent as provisional employees. As
provisional employees, the claimants accumulated annual leave time for each
month of employment. Their employment was terminated in 1985. At the time of
their termination, they were informed that they would receive no compensation
for the annual leave time which they had accrued during their employment.
Claimant Coughlin seeks $170.47, and claimant Gardner seeks $87.67.
Claimants testified that respondent’s district office staff completed the
paperwork and calculated the amount of annual leave time for these claims.
Claimant Coughlin testified that, during his provisional employment, he took
some days off. The claimants agreed that their positions were classified within
Civil Service. The claimants testified that they were not furnished copies of
the Civil Service regulations by respondent during the period of time which is
in dispute.
Section 16.03 of the Civil Service Rules and Regulations provides the
following:
(d) Coverage
2. Annual leave shall be accorded
provisional, intermittent, irregular part—time and temporary (appointed from
the register) employees. Such leave must be taken prior to the expiration of
the period of appointment, unless
100
REPORTS STATE COURT OF CLAIMS [W.Va.
immediately followed by an appointment from the register or be forfeited.
The Civil Service Rules and Regulations clearly state the policy on the issue
of annual leave time for provisional employees, which policy applies to the
claimants herein. For this reason, the Court is of the opinion to, and does,
disallow these claims.
Claims disallowed.
OPINION ISSUED
SEPTEMBER 25, 1986
HARLEY NANCE AND GENEVIEVE NANCE
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—184)
Claimant Harley Nance appeared in person.
Nancy J. Aliff,
Attorney at Law, for respondent.
PER CURIP1N:
In January or February of 1985, claimant Harley Nance was operating his 1978
Ford Fairmont on the 6th Street Bridge in Huntington, Cabell County. He was
travelling from West Virginia to Ohio when his vehicle struck a hole in the
bridge. Claimant Harley Nance originally filed this claim in his own name;
however, the record reflects the vehicle is titled in both his name and that of
his wife, Genevieve Nance. The Court, on its own motion, amended the style of
the claim to include Genevieve Nance as a party claimant. Claimant stated that
when he was seated in his vehicle, he was unable to see down the length of the
bridge. His vehicle struck the hole in the bridge with the left front wheel.
The control arm of the vehicle required replacement, and its cost, in addition
to the cost of the alignment of the vehicle, amounted to $175.00.
The claimant Harley Nance was alone in the vehicle at the time of this
incident. He testified that before his vehicle struck the hole, he had
travelled this same route eight or ten times a week. He stated that he probably
had noticed that hole before. No repairs were done on the vehicle as it was
traded in for another vehicle. In the opinion of the claimant Harley Nance, the
cost to repair the vehicle is approximately
$175.00.
It is the opinion of the Court that, although the respondent may have been
negligent, the negligence of the claimant Harley Nance was equal to or greater
than that of the respondent. Claimant Nance frequently travelled this route
prior to this incident. He should have been aware
W.Va.]
REPORTS STATE COURT OF CLAIMS 101
of the general state of disrepair of the bridge and taken the necessary
precautions. For these reasons, the Court denies the claim.
Claim disallowed.
OPINION ISSUED
SEPTEMBER 25, 1986
THOMAS TREADWAY
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—11)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On December 30, 1985, claimant was operating a 1976 Chevrolet pickup truck,
owned by him, on Witcher Creek Road, Kanawha County. The pickup truck struck a
patch of ice on the roadway and spun in the road. Claimant lost control of the
vehicle and it went into a ditch. Damage to the vehicle resulted for which
claimant is seeking $433.00.
Claimant testified that, on December 30, 1985, the weather was clear and the
roads were dry, except for the spot where this incident occurred. He said his
truck struck the ice between 10:30 and 11:00 a.m. Claimant was travelling from
his home to pick up a load of junk. He stated that the truck hit the ice, went
into a spin, hit the bank, and went into a ditch on the left side of the road.
The roadway was shaded which prevented the sun from melting the ice. The
highway in question is a two—lane, blacktop highway, but it is not marked of f.
It is wide enough for two cars to pass. The damage to the vehicle required the
replacement of four tie rods, an idle arm, a center link, and two tires.
Claimant stated that he made a complaint to respondent on December 23
concerning this area. On that date, the road was fully covered with ice.
Roads in this State, in the winter months, frequently accumulate frost. An
isolated patch of ice on a highway is generally insufficient to establish
negligence on the part of respondent. Cole vs. Dept. of Highways, 14
Ct.Cl. 350 (1983). Although claimant did notify the respondent concerning this
road, the condition of the road on the date the notice was given differed from
the condition of the road on the date of this incident. On the date of this
incident, in some places the road was dry, and in other places it was icy. It
is well established that the State neither insures nor guarantees the safety of
travelers on its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81
(1947) .
For
102
REPORTS STATE COURT OF CLAIMS [W.Va.
these reasons, the Court is of the opinion to, and does, disallow this claim.
Claim disallowed.
OPINION ISSUED
OCTOBER 1, 1986
BRENT BOGGS
VS.
DEPARTMENT OF CORRECTIONS
(CC—85—343)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAN:
Claimant was employed by Huttonsville Correctional Center, a facility of
respondent, from November 16, 1983 through April 30, 1985 as a Correctional
Officer I. As a requirement of his position, claimant was mandated to report 15
minutes early before each shift that he worked. As this requirement was above
his 40-hour—per—week responsibility, claimant seeks $50.00, which is his
estimation of the amount of compensation due him for the overtime.
Mr. Paul Gabel, the business manager at Huttonsville, testified that claimant
had been an employee of the Huttonsville Correctional Center. Mr. Gabel agreed
that a directive from George D. Hampton, III, Assistant Commissioner of Budget
and Administration, was issued on June 26, 1985. It required Mr. Gabel to
compute the overtime of employees for a period from July 1, 1984 through June
30, 1985. However, claimant was not an employee of Huttonsville on June 26,
1985. Mr. Gabel supplied the Court with copies of the directive, a Civil Service
Commission ruling on a case similar to claimant’s situation, a statement from
the Department of Labor indicating that under the Minimum Wage and Maximum
Hours Standard Act, “...
an employee working
over 40 hours per week must be compensated at ten(lO) minutes per shift at time
and one half his regular rate of pay when overtime violations occurred,’ and
time cards for claimant.
Claimant has proved through the various records presented that he is entitled
to overtime compensation in accordance with the Civil Service regulations. For
that reason, the Court makes an award of $50.00 to claimant.
Award of $50.00.
W.Va.]
REPORTS STATE COURT OF CLAIMS 103
OPINION ISSUED
OCTOBER 1, 1986
DELILAH LYNN
CHAPMAN
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—310)
W. Jack Stevens, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
WALLACE, JUDGE:
On March 7, 1984, the claimant, accompanied by her son, Chad, was operating a
Ford pickup truck, owned by her husband, and was travelling southbound toward
Logan, on Route 10, when the vehicle struck a hole in the road. Claimant seeks
an award of $25,000.00 for personal injury and medical expenses.
Claimant testified that she was operating her vehicle and following a Columbia
Gas truck which turned off of the main road. She stopped her vehicle when the
truck slowed to make the turn. Claimant then proceeded approximately two tenths
of a mile further when her truck struck a hole in the road. Claimant’s vehicle
was between Branchland and Midkiff, Lincoln County. She was travelling at a
rate of approximately 45 miles per hour. It was very cold, and there was ice
present. Claimant estimated the hole to be 12 feet long, 5 feet wide, and
between 8 1/2 —
9 inches deep. She
stated that at the time of this incident, she had been travelling this route
every day and had observed the hole. It had been in existence for a couple of
months.
Kyle MeComas, who lives within 100 yards of the hole testified that his father
erected a sign to warn people of this hole. Although Mr. McComas could not
supply the Court with a specific date, he felt that the sign went up in January
or February, 1984. Mr. McComas’ father lives “straight across from the hole.”
The sign was parallel with the highway and directly across from claimant’s
vehicle in the northbound lane. This witness testified that the hole was
repaired on several occasions by respondent in the months of January, February,
and March, 1984. Mr. McComas’ father removed the sign when the hole was fixed
by respondent, “but not always.” On the day of claimant’s accident, the sign
was not in place.
Deward Adkins, Assistant County Maintenance Superintendent with respondent,
testified that he was familiar with the hole in question. He stated that, prior
to the date of this incident, the hole had been patched with “cold mix patch.”
He estimated that repairs were done on this hole “three or four times” between
January 1, 1984 and March 7, 1984.
James Roberts, Maintenance Assistant, District 2, for respondent, testified
that “quite a bit of patching” with both hot and cold mix was perforned on the
holes on Route 10 in January, February, and March, 1984. The length of Route
10, as it proceeds through Lincoln County, is
104
REPORTS STATE COURT OF CLAIMS [W.Va.
30 miles. He indicated that his records could not show whether a particular
hole on Route 10 had been repaired. He checked the
records of District 2 and learned that no complaints had been made around the
particular time of this accident.
The evidence in the record reveals that respondent performed maintenance on the
holes in this area of Route 10, Lincoln County. Respondent repaired road
defects as it became aware of them. Moore v. Dept. of Highways, CC—85—l53
(1986). In the winter months of 1984, patching of the holes was done not once,
but several times. Respondent lacked notice that this particular hole on Route
10 required maintenance at the time of this incident. The Court is of the
opinion that negligence on the part of the respondent has not been established,
and, therefore, the Court denies the claim.
Claim disallowed.
OPINION ISSUED
OCTOBER 1, 1986
FONSO W. DOTSON AND SARAH E. DOTSON
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—382)
Claimant appeared in person
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On May 24, 1985, claimant Fonso Dotson was driving his vehicle in the vicinity
of Chauncey, approaching the Upper Cement Bridge at Switzer, West Virginia,
when his vehicle hit a hole. The vehicle sustained damage to a tire and two tie
rod ends in the amount of $185.75. Mr. Dotson originally filed this claim
solely in his own name. However, the record reflects that the vehicle is titled
in both his name and that of his wife, Sarah E. Dotson. The Court then, upon
Mr. Dotson’s agreement, amended the style of the claim to include Sarah E.
Dotson as a party claimant.
Claimant was travelling from Logan to his place of employment, a coal company
in Chauncey. He was alone in his vehicle, and was travelling at approximately
45 miles per hour. The weather was clear. The bridge in question is a two—lane
cement bridge. Mr. Dotson had travelled this route every day going to and from
work and had observed the hole prior to this incident. The hole in the bridge
had been covered with a steel plate approximately a week before this incident.
On May 24, the steel plate was no longer covering the hole, and the hole was
exposed.
W.Va.]
REPORTS STATE COURT OF CLAIMS 105
Claimants’ vehicle struck the hole with the two right tires. The vehicle
required the installation of two tie rods, the replacement of a tire, balancing
and alignment.
The State has been found negligent for failing to discover and correct a hazard
on a bridge which a casual inspection would have revealed. Randall v.
Department of Highways, 8 Ct.Cl. 147 (1970). More recently the Court found
the State negligent for failing to warn the travelling public of a hazardous
condition on an interstate bridge. Smith v. Department of Highways, CC-85-320
(1986).
From the record in this case, the Court is of the opinion that the respondent
was negligent in failing to properly maintain the bridge. Although the claimant
was aware of the existence of the hole, he relied upon the placement of the
steel plate to protect his vehicle from the hole beneath the plate. Therefore, the
Court makes an award to the claimant in the amount of $185.75.
Award of $185.75.
OPINION ISSUED OCTOBER 1, 1986
LEO DUNN AND EDITH DUNN
VS.
DEPARTMENT OF HIGHWAYS
(CC—82—257)
Henry Wood, Attorney
at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for
respondent.
WALLACE, JUDGE:
On October 7, 1980, a fence along the lower portion of claimants’ property was
removed by respondent workers pursuant to a Notice of Removal of an Obstruction
issued by respondent. The claimants had acquired two parcels of land on the
bank of Beech Fork in Union District, Kanawha County, from Clayton and Lona
Faye Rhodes by a deed dated March 1, 1972. The first parcel of land is the
subject of this action. The Rhodes had acquired the property on March 28, 1946,
from Charleston National Bank, and the bank had acquired the property in 1932
from another party.
The Notice of Removal of an Obstruction directed to the claimants stated the
following:
“The obstruction is more specifically described as a fence you have placed
across State local Service Route 5/3, Pring Drive, in Kanawha County.”
106
REPORTS STATE COURT OF CLAIMS [W.Va.
The claimants allege that the fence was within the boundary line of their
property; that the removal of the fence was within the boundary line of their
property; that eh removal of the fence by respondent was an erroneous action,
and constituted trespass. The claimants seek
$6,900.00.
Michael Mayes, a registered professional engineer, testified that he performed
a survey of the property in October 1984. He stated that his survey did not
reveal any county road across claimants’ property. He came to this conclusion
after having reviewed the tax map, right—of—way maps, performing field
examinations, and plotting the courses.
He further testified that his survey differed in nine degrees from the calls in
the deed to the claimants, the Charleston National Bank deed and the prior
owner’s deed (Littlepage). It also differed from the adjacent land owners’ deed
(the Fertigs). Mr. Mayes testified that the four corners upon which he based
his survey were those pointed out to him by Mrs. Dunn.
Mr. Curtis Hamilton Tilton has owned property on Pring Drive since 1951. He
testified that the county road had been used “off and on” up until 1984. He
stated that in July, 1980, the Dunns erected the fence. He called the fence
contractor, Sears and Roebuck, to inform them that they were putting a fence
across a State road. He also notified respondent.
Lawrence E. Kitts, District Right of Way agent for District One, in the sunnier
of 1980, examined the 1933 and 1936 maps of respondent, and found evidence of
an old county roadway in the vicinity of claimants’ property. He determined
where the county road was ‘by the travel way” or, as he explained, through
observation. He checked the records of the respondent to see if this road had
ever been abandoned. He did not find any commissioners’ orders abandoning this
road.
Mr. James Robert Campbell, District Engineer in District One, testified that he
issued the obstruction notice sent to the Dunns prior to October 7, 1980. He
explained that in 1933 the road in question was designated as 5/3. During the
1940’s, the respondent inadvertently picked up Crystal Drive as 5/3 and left
the actual location of 5/3 adjacent to claimants’ property of f the map system
of the roads. In 1952, the respondent recognized its error and again picked up
Pring Drive as 5/3, but in so doing, the respondent left of f the segment
adjacent to the back of the Dunn property toward the road then designated as
Route 5. At the present time, the road does not have a number assigned to it.
However, before issuing the obstruction notice, Mr. Campbell had his staff
confirm that the road had not been abandoned by respondent.
The record does not establish that respondent was guilty of trespassing.
Although there is some conflicting evidence regarding whether the county road
in question has been currently maintained by respondent, there is sufficient
evidence to support the fact that claimants’ fence was obstructing a public
road. Respondent followed the required procedure of notice to claimants before
removing the fence.
W.Va.]
REPORTS STATE COURT OF CLAIMS 107
Accordingly, the claim is disallowed.
Claim disallowed.
OPINION ISSUED
OCTOBER 1, 1986
CHARLES G. PLANTZ
VS.
DEPARTMENT OF CORRECTIONS
(CC—84—271)
and
(CC—84—326)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIPM:
These two claims, alleging loss of property, were consolidated and came on for
hearing on January 15, 1986 upon respondent’s Motion to Dismiss. The Court, at
claimant’s request, permitted claimant’s Answer to Respondent’s Motion to
Dismiss filed in Claim No. CC-84-326 to serve as the Answer in Claim No.
CC—84—271 also. The Court amended the style of Claim No. CC-84-271 to delete
Danny R. Campbell as a respondent party, as the Court lacks jurisdiction over
an individual.
Claimant has been incarcerated at West Virginia Penitentiary since December 10,
1968. He alleges that respondent was negligent in failing to safeguard his
property acquired for the operation of both a radio and T.VS. repair shop and a
woodworking or hobby shop. The repair shop was operated by claimant until it
was closed by Deputy Superintendent Danny
R. Campbell on February 1, 1979. The property in the repair shop included
equipment to be repaired, tools, and books. In November 1973, claimant Plantz
and fellow inmate William Creamens created the woodworking shop. On April 3,
1980, the woodworking shop’s operation was terminated by officials at the
penitentiary. The property in the woodworking shop included tools, wood, glue,
stain and varnishes.
The property of both of these enterprises was never recovered by claimant.
On March 14, 1980, claimant filed a complaint in the U. S. District
Court regarding his property loss in the radio and T.VS. repair shop.
On March 21, 1983, the Court entered an Order granting respondent’s
Motion for Summary Judgment. On February 25, 1981, claimant Plantz and
William Cremeans filed a complaint in U. S. District Court regarding
their property loss in the woodworking shop. On April 8, 1983, the
Court entered an Order dismissing the action.
108
REPORTS STATE COURT OF CLAIMS [W.Va.
One of the contentions of the respondent’s Motion to Dismiss is that both
claims are barred by the statute of limitations. Claimant alleges, in his
Answer to respondent’s Motion to Dismiss, that “The Respondents have denied the
claimant access to the court by confining him in a way which he was not allowed
access to legal materials to enable him to bring his claim to the court.” West
Virginia Code §55—2—18 provides that after abatement, dismissal, etc. of an
action commenced within due time, a new action may be brought within one year
after such abatement, dismissal, or other cause . . . Claim No. CC—84—271 was filed
October 11, 1984, and Claim No. CC—84-326 was filed December 11, 1984. Neither
claim was timely filed
After careful review of the evidence presented, the Court finds that under the
provisions of W.Va. Code 14—2-21, it does not have jurisdiction over claims
which are not filed within the time specified by the applicable statute of
limitations. The Court must, therefore, sustain respondent’s Motion to Dismiss
and dismiss the claims.
Claims dismissed.
OPINION ISSUED
OCTOBER 1, 1986
TRUDY PROTZMAN
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—376)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIP,M:
The claimant was travelling south on West Virginia Route 52 between Prichard
and Hubbards Town when her 1983 Pontiac Trans Am struck a pothole. The incident
occurred on September 28, 1985, at approximately 8:00 p.m. Claimant,
accompanied by her sister, Penny Combs, and her brother—in—law, Roy Combs, was
proceeding at approximately 55 miles per hour in a southerly direction on the
two—lane concrete highway to Fort Gay, Wayne County. She seeks $250.00 for the
replacement of two tires.
Claimant testified that she had her vehicle’s headlights on low beam. The
weather was clear and dry. Claimant was coming out of a 120 degree curve when
the vehicle struck the pothole. She did not observe the pothole until her
vehicle was right upon it. She estimated that the vehicle travelled 100 yards
before it stopped. She and her sister exited the vehicle to examine the
pothole. She stated that the hole was about two feet long and approximately
four inches deep. She had travelled the same route about two weeks prior to
this incident, but had not run through the pothole at that time.
W.Va.]
REPORTS STATE COURT OF CLRIMS 109
The State is neither an insurer nor a guarantor of the safety of motorists on
the highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947) . In order for the respondent to be found liable for the damages incurred,
proof of notice, either actual or constructive, of the defect in question must
be shown. As there was no such evidence presented, the claim must be denied.
Claim disallowed.
OPINION ISSUED
OCTOBER 1, 1986
CONSThNCE J. TILLEY
VS.
DEPARTMENT OF HIGHWAYS
(CC—85--246)
Paul 0. Clay, Jr., Attorney at Law, for claimant.
1ndrew Lopez, Attorney at Law, for respondent.
PER CURIPN:
On May 13, 1985, at approximately 4:00 p.m., claimant, her husband, and their
two children were in the Fayetteville area. As the weather was pleasant, they
decided to take a walk. It was daylight at the time. The four of them proceeded
to the walkway at the Canyon Run Park of the New River Gorge. Claimant and her
family proceeded down the stairs of the boardwalk. As claimant stepped off the
last step to the platform, her foot went down between two boards, causing
injury to her ankle. Claimant alleges that this section of the walkway was
improperly maintained. She seeks damages in the amount of $2,219.17 for
personal injury and the resultant medical expenses.
Claimant testified that a tree was growing up between the two boards of the
walkway on which she fell. She stated that there is a sign at this location
advising the public of the number of steps there are to the bottom of the
walkway. Claimant had observed other sections with boards which had been cut
out to compensate for the growth of trees. Claimant testified that none of the
boards in the walkway were “flush together.”
Claimant’s husband, Jack Lee Tilley, testified that the steps of the boardwalk
are approximately four feet in width. The tree at the site of this incident was
at least four feet away from where claimant was standing. He was right beside
claimant as she proceeded down the steps.
The testimony revealed that claimant incurred medical expenses as a result of
this accident. She lost three days and part of a fourth day of work in her
employment as a part-time worker for Heck’s Department Store in Oak Hill.
However, claimant testified that she did not seek emergency room services until
the day following the incident.
110
REPORTS STATE COURT OF CLAIMS [W.Va.
The Court finds that the claimant was negligent in failing to maintain an
adequate lookout upon the boardwalk where she was walking. She was aware that
due to the trees and the distance between the boards in the boardwalk, in this
area, special care was required. For this reason, the Court disallows this
claim.
Claim disallowed.
OPINION ISSUED
OCTOBER 1, 1966
WILLIAM C. TOOLEY
(CC—85—139)
DEXTER 0. CALLEN
(CC—85—140)
ALFRED E. KINCAID
(CC—85—142)
PAUL E. THOMPSON
(CC—85—l43)
CHARLES E. WALKER
(CC—85—144)
VS.
DEPARTMENT OF HIGHWAYS
Claimants appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAN:
Claims CC—85—139, CC—85—140, CC—85—142, CC—85—143 and CC—85—144, filed by
William C. Tooley, Dexter 0. Callen, Alfred E. Kincaid, Paul E. Thompson, and
Charles E. Walker, were consolidated for hearing.
In 1984, claimants were employed by respondent as provisional employees. As
such, each claimant accumulated annual leave time for each month of employment.
Their employment terminated in January 1985. At the time of their termination,
they were informed that they would receive no compensation for the annual leave
time which they had accrued during their employment. Claimants seek
compensation for their accumulated annual leave.
The claimants knew that their positions were classified within Civil Service,
although they were not furnished copies of the Civil Service regulations by
respondent during the period of time which is in dispute.
Perry Patrick Dotson, Assistant Director of the Personnel Division of
respondent, testified that provisional employees do not automatically attain
permanent status at the end of the six months of provisional status. He further
testified that a provisional employee must use the annual leave before the
provisional period expires. He had no knowledge
W.Va.]
REPORTS STATE COURT OF CLAIMS ill
of whether claimants were informed of this regulation.
Section 16.03 of the Civil Service Rules and Regulations provides the
following:
(d) Coverage
2.Annuai leave shall be accorded provisional, intermittent, irregular part—time
and temporary (appointed from the register) employees. Such leave must be taken
prior to the expiration of the period of appointment, unless immediately
followed by an appointment from the register or be forfeited.
The Civil Service Rules and Regulations state the policy on the issue of annual
leave time for provisional employees, which policy applies to the claimants
herein. For this reason, the Court is of the opinion to, and does, disallow
these claims.
Claims disallowed.
OPINION ISSUED
OCTOBER 24, 1986
FARMERS & MECHANICS MUTUAL FIRE INSURANCE COMPANY OF W.VA.
AND
MUTUAL PROTECTIVE
ASSOCIATION OF W.VA.
VS.
DEPARTMENT OF HUMAN SERVICES
AND
DEPARTMENT OF
CORRECTIONS
(CC—79—30)
Howard E. Krauskopf, Attorney at Law, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
GRACEY, JUDGE:
The claimants insured the Harman Church of the Brethren located in Harman,
Randolph County, West Virginia. On or about October 26, 1977, two juveniles who
were being confined at the West Virginia Children’s Home in Elkins, West
Virginia, left the Home to run away. While travelling to Bluefield, West
Virginia, they entered the Harman Church of the Brethren and allegedly started
a fire which destroyed the Church. Claimants filed this claim for the loss of
the Church in the amount of
$30,648.11.
At the hearing, a motion to amend the style of the claim in the name of the
Department of Human Services as one of the respondents was sustained by the
Court. The claim was submitted upon the plead- ings and two depositions.
The deposition of Robert Byrd, one of the juveniles involved in the incident,
revealed that he and two other juveniles, all of whom were
112
REPORTS STATE COURT OF CLAIMS [W.Va.
wards of the West Virginia Children’s Home in Elkins, left the Home on the date
in question riding bicycles which one of the juveniles had taken from a yard.
They rode the bicycles out of Elkins. One of the juveniles separated to proceed
to Huttonsville, West Virginia while Robert Byrd and the other juvenile
proceeded on another road with the intentions of travelling to Bluefield, West
Virginia. The two boys abandoned the bicycles and hitchhiked with a trucker who
dropped them of f on a road about one mile from the Church. At the time, the
boys did not know where they were so they walked along the road. They came upon
the Church and “went in the church for the collection money.” The boys lit
candles in the Church as it was dark. At this point, Robert Byrd stated that he
does not remember what happened until he was back on the road, heard fire
engines, and looked back to see “black and red smoke all over the place.” He
could not remember the facts surrounding the cause of the fire. The boys were
then picked up by a woman from the West Virginia Children’s Home. She took the boys
back to the Home.
Robert Byrd indicated that he had been confined at the Children’s Home for
approximately two and one—half weeks prior to the date of the incident.
Previous to this confinement, he had been treated while a patient of Lakin
State Hospital during the spring or summer, 1977. He stated that he went freely
to and from the Children’s Home as did the other children. The personnel at the
Home did not prevent the children from coming and going.
The testimony of Audrey K. Byrd revealed that her son, Robert Byrd,
was first placed in Lakin State Hospital by the Mercer County Circuit
Court on Arson 1 charges. He was released to his parents and the
Department of Welfare. He was then placed in the West Virginia
Children’s Home at Elkins. She had not visited the Home until after the
Church was burned.
Claimants allege that the respondents negligently and recklessly placed Robert
C. Byrd into an institution which did not have the proper facilities to prevent
escape and recurrence of past conduct.
The record in this claim does not substantiate the allegation of knowledge on
the part of the personnel in charge of the West Virginia Children’s Home of any
propensity on the part of Robert to set fires or which would alert then to any
behavior different from the other children confined at the Home. There is, in
fact, no proof as to how the Church burned down or who set the fire as the
testimony of Robert Byrd is that he did not set the fire nor did he know how
the fire started.
This Court has previously denied a claim wherein juveniles burned a barn while
wards of Sugar Creek Children’s Center as the record was devoid of any
negligence on the part of the respondent. Stemple vs. Dept. of Welfare, 13
Ct.Cl. 94 (1979). A complete reviewTcase law in escape claims wherein property
damage resulted from acts of the escapees is provided in the opinion of Tyre
vs. Dept. of Corrections, 12 Ct.Cl. 263 (1979). This opinion concludes that
each claim must be taken on its own set of facts. The facts herein do not
reveal a basis upon which the Court may find negligence on the part of the
respondents.
W.Va.]
REPORTS STATE COURT OF CLAIMS 113
In view of the above, the Court is of the opinion to and does disallow the
claim.
Claim disallowed.
OPINION ISSUED NOVEMBER 24, 1986
JAMES W. BASH1N, JR.
VS.
DEPARVMENV OF HIGHWAYS
(CC—S 4—59)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
Claimant James W. Basham, Jr. originally filed this claim against the
respondent in the amount of $7,000.00 for damages to his 1977 Mazda GLC
hatchback. During the hearing, the claimant amended the amount of his claim to
$1,683.19. On February 15, 1984, at approximately 9:20 a.m., claimant was
operating his vehicle at 35—40 miles per hour en route to Concord College, on
Route 20 south of Hinton, near Pipestem, Summers County. I’he road is a
two—lane, blacktop highway. f’he claimant encountered ice. His car had swerved
to the left—hand side of the road, whereupon it hit the berm, flipped and
skidded approximately 150-200 feet.
rhe claimant testified that, at the time of this incident, the temperature was
between 45 and 50 degrees. He was en route to Concord College where he was a
student. He described the ice as being “black ice.” He travelled this route
frequently and had encountered “black ice” prior to this occasion. On this
particular day, the claimant had observed a couple of small patches of ice, but
was unaware of the ice at the location of the accident.
rhe claimant alleged that the respondent had been notified of the dangerous
condition of this road. However, no evidence was introduced to establish
knowledge, either actual or constructive, that respondent was aware of the ice
on the highway.
Vhe law is well established in West Virginia that the State is neither an
insurer nor a guarantor of the safety of persons travelling on its highways. Adkins
v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947); Lipscomb
V.
Dept. of
Highways, 12
Ct.Cl. 322 (1979) .
Before the respondent
may be held liable, there must be evidence that the respondent knew or should
have known of the existence of ice on the highway. Accordingly, the Court
disallows this claim.
114
REPORTS STATE COURT OF CLAIMS [W.Va.
Claim disallowed.
OPINION ISSUED NOVEMBER 24, 1986
MARY ELIZABETH BINDER
VS.
DEPARTMENT OF EDUCATION
(CC—86—295)
No appearance by claimant.
Robert D. Pollitt, 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 seeks payment of the sum of $330.00 as reimbursement for the cost of
renewing her teaching certificate. A statutory provision of the West Virginia
Code mandates that the respondent will underwrite the cost of the tuition,
registration, and other fees of teachers who have completed course work for the
renewal of their teaching certificates. Claimant completed the necessary
paperwork. Her payment receipt was lost and was not submitted within the proper
fiscal year. Therefore, the claimant’s tuition reimbursement request was
denied.
In its Answer, the respondent admits the allegations of fact set forth in the
Notice of Claim, but further alleges that sufficient funds were not available
at the close of the fiscal year in question from which the claim could have
been paid.
While we feel that this is a claim which in equity and good conscience should
be paid, we are of further opinion that an award cannot be made based on our
decision in Airkem Sales and Service, et al. v. Dept. of Mental Health, 8
Ct.Cl. 180 (1971)
Claim disallowed.
OPINION ISSUED NOVEMBER 24, 1986
WILLIAM K. CUNNINGHAM AND TRESEA J. CUNNINGHAM
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—ll—3)
Claimants appeared in person.
W.Va.]
REPORTS STATE COURT OF CLAIMS 115
Andrew Lopez, Attorney at Law, for respondent.
PER CURIP1N:
On February 28, 1986, claimant William K. Cunningham was operating his 1984
Mercury Lynx in a westerly direction on Route 64 at the Dunbar overpass when he
encountered respondent’s crew patching potholes at the top of the grade. The
crew was utilizing aggregate. As a result, claimant’s vehicle’s windshield was
struck by some of the aggregate and damaged in the amount of $112.92. The
claimant, William K. Cunningham, originally filed this claim in his own name;
however, the record reflects that his wife, Tresea Cunningham, is co—owner of
the vehicle in question. The Court, on its own motion, amended the style of the
claim to include Tresea Cunningham, as a party claimant.
The claimant testified that it was between 3:00 and 4:00 in the afternoon when
this incident occurred. It was a clear day, and he was proceeding in the
direction of Huntington. His vehicle was in the right lane and there were
several vehicles in front of his. The vehicle two or three car lengths ahead of
claimant’s vehicle ran over the aggregate. The claimant assumed that gravel or
some other substance from the aggregate struck the claimant’s vehicle. He did
not notice the damage to the windshield of the vehicle until the morning following
this incident.
There is nothing in the record of the instant case to show that the respondent
had notice of a dangerous condition in the highway, nor was there any evidence
that the existence of the aggregate was the proximate cause of the damage to the
automobile. A finding of negligence would require speculation on the part of
the Court. Therefore, the claim must be denied.
Claim disallowed.
OPINION ISSUED NOVEMBER 24, 1986
HELEN HERRON
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—l65)
Frank C. Mascara, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
WALLACE, JUDGE:
On May 7, 1984, at about 2:00 p.m., the claimant was operating her 1970
Chevrolet Impala in a northeasterly direction on Secondary Route 27 approaching
the intersection of U.S. Route 19, in Marion County. The claimant veered her
vehicle to the right when a vehicle proceeding in
116
REPORTS STATE COURT OF CLAIMS FW.Va.
the opposite or southwesterly direction was coming toward the claimant’s
vehicle. Claimant’s vehicle dropped off the paved portion of the road into the ditch line at that location.
Claimant then lost control of the vehicle and the vehicle hit an abutment,
jumped across the roadway and landed up against the porch of a nearby residence.
The claimant seeks $100,000.00 for personal injury and damage to her vehicle.
It is alleged that respondent failed to maintain the berm in a safe condition
and was negligent in this regard. The lack of berm is alleged to be the
proximate cause of this accident. The claimant was alone in her vehicle at the
time of this incident. She had been visiting her sister in Pittsburgh and was
returning to her home in Carolina, West Virginia. She was proceeding at
approximatelY 30—35 miles per hour. The claimant testified that prior to this
accident, she travelled this route frequently. She stated that, at the time of
this accident, she left the travel portion of the roadway, which is blacktop,
to avoid the vehicle approaching her vehicle in the opposite direction. She did
not regain control of the vehicle after she left the travel portion of the
roadway. She did not observe any defects in the paved surface of the roadway.
James Richard Lee, who lives within a hundred feet of the accident site
testified that he did not observe any defects in the paved surface of the
roadway. He further stated that the lawns of the residences in this area extend
to the travel portion of the roadway with the exception of the ditch line.
Charles E. Lainbiotte, Marion County Maintenance Superintendent in May, 1984,
testified that he was familiar with Secondary Route 27 at the intersection of
U.S. Route 19. He stated that prior to May 7, 1984, he did not receive any
complaints regarding the ditch line adjacent to County Route 27. He had
examined his records back to 1979.
The route on which this accident occurred is a secondary road in a residential
area. An examination of the photographs in the record reveal that the residents
maintain their lawns close to the paved surface of the road but a narrow ditch
line is apparent. This is not an uncommon condition along roads in residential
areas. The Court is unable to determine negligence on the part of respondent in
the maintenance of the road or the berm at the accident site. For these reasons,
the Court is disposed to, and does, disallow this claim.
Claim disallowed.
W.Va.]
REPORTS STATE COURT OF CLAIMS 117
OPINION ISSUED NOVEMBER 24, 1986
BUFORD E. MARKER
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—1)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIP,M:
On September 22, 1985, the claimant was proceeding up the hill next to the
Gorman Shelter in Coonskin Park, Kanawha County, in his 1981 Olds 98 Regency.
His vehicle dropped of f the berm of the road resulting in the damage to the
vehicle. The rim of the vehicle was damaged and the front end was knocked out
of alignment in the amount of $47.79. The claimant had originally filed the
claim with the State Road Commission as the party respondent. The Court
sustained claimant’s motion to amend the respondent State agency to the
Department of Highways.
The claimant testified that he, his wife, and three children were proceeding in
Coonskin Park to attend an Olin Company picnic at the park. It was approximately
1:00 p.m. and the weather was clear. As claimant’s vehicle passed another
vehicle, his vehicle dropped of f the road onto the berm. There was a slight
difference in elevation between the surface of the paved surface and the
surface of the berm. It is a blacktop surface and is ordinarily wide enough for
two vehicles to pass. There was no center line on the road. The place at which
claimant’s vehicle left the highway was in a straight area, and the claimant
was travelling at 15-20 miles per hour.
The claimant alleges that the oncoming vehicle forced him to drive his vehicle
off the travel portion of the roadway. The allegation that the berm was not
even with the surface of the road does not establish negligence on the part of
the respondent. The negligence, if any, may well have been the actions of the
driver of the oncoming vehicle, forcing claimant onto the berm. For these
reasons, the Court disallows the claim.
Claim disallowed.
118
REPORTS STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED NOVEMBER 24, 1986
JERRY ALLEN TACKETT
VS.
DEPARTMENT OF HIGHWAYS
(CC— 86—86)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIP,N:
On February 18, 1986, at approximately 8:45 P.m., the claimant was operating
his 1983 Shelby Charger in a southerly direction on State Route 18 a quarter of
a mile south of Bias Branch. Bias Branch is about eight miles from Madison,
Boone County. Claimant’s vehicle, in an attempt to avoid an oncoming vehicle,
struck a pothole. A tire and an aluminum wheel were damaged in the amount of
$375.12.
The claimant testified that this incident occurred at dusk. It had been raining
earlier, but was not raining at this time. He was travelling at a speed of
approximately 40 miles per hour. He stated that there were quite a few holes in
this area. He travelled this section of road every day and admitted that the
hole had probably been there the day before this incident. The claimant
suggested that his father had contacted respondent before this incident
regarding the potholes. Although the respondent may have had actual notice of
the poor condition of this road, the claimant was familiar with the route and
should have taken precautions necessary to avoid striking the hole in the road
[Matthew v. Dept. of Highways, CC—85—l72 (1986)1.
It is the opinion of the Court that although the respondent may have been
negligent, the negligence of the claimant was equal to or greater than that of
the respondent, The Court therefore denies the claim.
Claim disallowed.
OPINION ISSUED
NOVEMBER 24, 1986
PAUL R. THOMAS
VS.
DEPARTMENT OF HIGHWAYS
(CC—S 6—92)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
W.Va.]
REPORTS STATE COURT OF CLAIMS 119
On February 28, 1986, at approximately 7:30 P.M., the claimant was driving his 1972 Oldsmobile 98 on
Hale Branch Road outside of Barboursville, Cabell County. There was some
blacktop loose in the road at this location and as claimant’s vehicle proceeded
over the blacktop, the blacktop caused the vehicle to come up off the road.
This impact caused damage to the vehicle. The claimant had an estimate for the
necessary repairs. It was determined that the damage would exceed the cost of
the vehicle. The claimant had paid $600.00 for the vehicle.
The claimant testified that he was travelling approximately 20—25 miles per
hour from his job at the United Parcel Service in Huntington to his residence
on Hale Branch Road. It was not raining or snowing, and it was almost dark at
the time of this incident. He stated that the front wheel of the vehicle went
over the blacktop. He travelled this route daily, and had not noticed this
condition in the road prior to the date of this incident. He stated that, “I
caused the condition right at that moment.” The record reveals that this
hazardous condition appeared suddenly. No prior actual or constructive notice
was given respondent. The Court is of the opinion that negligence on the part
of the respondent has not been established, and, therefore, the Court denies this
claim.
Claim disallowed.
OPINION ISSUED
NOVEMBER 24, .2986
LARRY J. WALLEN
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—120)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for
respondent.
PER CURIAM:
This claim was
originally filed in the names of Larry J. Wallen and Iva J. Wallen, his wife.
At the hearing, the Court amended the style of the claim to reflect the sole
owner of the vehicle., Larry J. Wallen, as claimant.
The claimant, on January 22, 1986, was operating his vehicle, a 1976 Mercury
Cougar, in a southerly direction on U.S. Route 119, also known as Logan
Boulevard, at or near an intersection of State Route 10 when rocks fell from a
cliff. One of these rocks struck the claimant’s vehicle as it passed. The
damage totalled $522.80, of which the claimant’s insurance paid $138.00. The
claimant testified that U.S. Route 119 is a four-lane highway with a median. On
the day of this
120
REPORTS STATE COURT OF CLAIMS [W.Va.
incident, the roadway was damp. It was approximately 12:00 noon. The claimant
was transporting his wife from her place of employment, the Save Rite Pharmacy,
to the post office in Logan. He was proceeding at approximately 35—40 miles per
hour. He was in the right lane of the two southbound lanes. The claimant
observed that two rocks fell from the cliff, whereupon he switched his vehicle
to the left lame to avoid these rocks. A third unobserved rock struck and
damaged the vehicle in the right, rear quarter panel. The claimant testified
that he passed the cliff in travelling this route, and rocks falling from the
cliff were a common occurrence at this location. Three to four weeks prior to
his accident, the claimant observed the respondent’s crew cleaning up some
rocks which had apparently come off the hill and were blocking all four lanes
of the highway.
The claimant described the concrete barriers which the respondent had erected
between the base of the cliff and the berm of the highway. On this particular
occasion, the rock which struck the claimant’s vehicle missed the barrier. The
respondent was aware of the propensity of the rocks to fall from the cliff at
this location as evidenced by the existence of the concrete barrier. The
barriers indicate that the respondent has taken measures to remedy the
dangerous condition of the falling rocks. The Court, then, is unable to find
negligence on the part of the respondent, and the claim must be denied.
Claim disallowed.
OPINION ISSUED DECEMBER 12, 1986
KAREN SUE BISSETT
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—154)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On April 9, 1986, at about 10:00 a.m., the claimant was operating her 1979 ANC
Spirit on the one—lame Everson Bridge, near Route 19, Marion County. Claimant
had passed over the pothole, the existence of which was known to her. Upon
seeing an oncoming vehicle on the one-lane bridge, she stopped and backed up
and backed into the pothole, thus damaging her automobile. Damage to the
vehicle amounted to $192.57. The claimant testified that she had travelled this
bridge several times before the incident and was aware of the existence of the
pothole. She was not able to state definitely that the hole had been present
for the winter, but she could state that it had been in existence in March, the
month before this incident.
W.Va.J
REPORTS STATE COURT OF CLAIMS 121
The State is neither an insurer nor a guarantor of the safety of motorists on
its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947) . In order for the respondent to be
found liable for damages caused by the pothole, proof of actual or constructive
notice must be shown. Davis Auto Parts v. Dept. of Highways, 12 Ct.Cl.
31 (1977). Constructive notice of the pothole was present in this case, but
claimant’s prior knowledge of the bridge makes her likewise negligent. Under
the doctrine of comparative negligence, the Court is of the opinion that the
claimant’s negligence was equal to the respondent’s and disallows the claim. Merrill
v. Dept. of Highways, 15 Ct. Cl. 196 (1984)
Claim disallowed.
OPINION ISSUED
DECEMBER 12, 1986
JAY L. BOLYARD
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—195)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAN:
On April 19, 1986, at approximately 12:30 P.m., the claimant was operating his
1984 Honda motorcycle in a westerly direction on Kingwood Pike, at about seven
miles from the intersection at Rivesville, West Virginia. The vehicle then ran
through a pothole, damaging its wheels and tires in the amount of $360.00.
The claimant testified that he was travelling at approximately 40—45 miles per
hour, and that on the day of this incident, it was clear.
He estimated the pothole to be 31 112 inches wide, 51 inches long, and
approximately 7 inches deep. The claimant rarely travels this route.
He did not notice this hole until he was in it.
While the respondent is not an insurer of the safety of motorists using the
highways of the State, it does have the affirmative duty of using reasonable
care for their safety. Although there was no direct evidence that the
respondent had actual notice of this defect, the Court is of the opinion that
it did have constructive notice. The size of the pothole is indicative of its
presence for a substantial period of time prior to the date of this incident.
See Stone v. Dept. of Highways, 12 Ct.C1. 259 (1979) . The Court hereby makes an award to
the claimants in the amount of $360.00.
Award of $360.00.
122
REPORTS STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED DECEMBER 12, 1986
WILLIAM E. CARR
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—41)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAN:
On March 15, 1985, at approximately 6:30 a.m., claimant was operating his 1982
Concord Stationwagon in a westerly direction on Interstate 64 in the vicinity
of the State Capitol. Claimant’s vehicle and two other vehicles were involved
in an accident. Respondent had been working on a wall at this location. There
was “metal that crosses the crack in the road.” The first vehicle struck this
metal expansion Joint. The second vehicle hit the expansion joint. Claimant’s
vehicle was following these vehicles. Claimant’s vehicle struck the second
vehicle which resulted in damage to claimant’s vehicle. All of the damage to
claimant’s vehicle was covered by his insurance with the exception of a $100
deductible. Claimant seeks the amount of the deductible.
Claimant’s own testimony revealed that it was pitch dark and dry. He drove this
route daily, and on the day before this incident, claimant did not notice
anything unusual at this location. This incident occurred just as the first
vehicle struck the expansion joint.
No evidence was introduced at the hearing to establish that the respondent was
aware of, or had any knowledge of, the condition of this metal expansion joint
on the subject section of 1—64. This Court has consistently held that the State
is not an insurer of the safety of motorists using its highways; thus, as there
was no showing of negligence on the part of the respondent, the Court denies
the claim.
Claim disallowed.
W.Va.]
REPORTS STATE COURT OF CLAIMS 123
OPINION ISSUED DECEMBER 12, 1986
JAMES CHARLES ADMINISTRATOR OF THE ESTATE OF BILLY R. CHARLES,
DECEASED
VS.
DEPARTMENT OF HIGHWAYS
(CC—83—356)
AND
BEN H. ALLISON., ADMINISTRATOR OF THE ESTATE OF DAVID W.
ALLISON, DECEASED
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—68)
Richard E. Hardison, Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
LYONS JUDGE:
These two claims, arising out of the same accident, were consolidated for
hearing pursuant to the agreement of counsel. The claims arise out of an
automobile accident which took place on Route 52/6 or Nemours Road, Mercer
County, on or about March 20, 1983. The decedents were riding in a 1972 Ford
Mustang and were proceeding in a westerly direction. David Allison was the
driver of the vehicle. He was accompanied by Billy Ray Charles. The vehicle
left the travelled portion of a bridge and went into the Bluestone Creek. Both
suffered death by drowning as a result of the accident. James Charles and Ben
Allison, as administrators of their sons’ respective estates, seek damages in
the amount of $100,000.00 for each estate.
There is a narrow one—lane bridge at the location of the accident. The vehicle
with the bodies of the boys was found in Bluestone Creek. The claimants allege
negligence on the part of the respondent due to lack of warning and/or speed
limit signs, lack of siding on the bridge other than wooden railings, lack of
maintenance of the road at this site, and the failure of respondent to maintain
the bridge and pavement
of the road at the same width which caused a dropoff on either side of the
bridge. It is not certain at what time the accident occurred. There are no
known witnesses to the accident.
On the morning of March 20, 1984, between 7:00 and 7:30 a.m., Charley
W. Schultz, who has lived in Nemours for over twenty years, testified that he
heard a thump from the direction of the Bluestone Creek. Upon investigation, he
discovered the 1972 Ford Mustang on its roof in the water of the creek. He
assumed that the vehicle had gone off the right side of the bridge over a two
by six foot railing along the side of the bridge. He observed fresh scarring on
the wooden railing. He estimated the length of the bridge to be between 25 and
30 feet. He testified that there have never been any signs warning of the
existence of the one—lane bridge at the location in question. He further stated
that there have never been any speed limit signs at the bridge approach.
124
REPORTS STATE COURT OF CLAIMS (W.Va.
There was a hole in the road at the approach to the bridge on the day of this
accident.
Trooper Estill Adams received a report on March 20, 1983 that a vehicle had
gone of f the bridge at Neluours into the Bluestone Creek below the Nemours
Dam. He stated that there were several gouge marks starting a few feet onto the
bridge. The highway pavement is narrower than the bridge. In reference to a
pothole at the entrance to the bridge, Trooper Adams does not remember anything
large. He stated that in the three years during which he had worked at the
Princeton Detachment of the Department of Public Safety, no vehicles had run of
f this bridge except as the result of mechanical defects.
Claimant James Charles went to the scene of the accident on March 21, 1983. He
testified that the road is narrower than the bridge. He stated that there were
no signs on the road previous to the bridge. He observed a hole about eight or
nine feet from the bridge in the road.
John Edward Charles accompanied his father, James Charles. He testified that he
also observed the hole in the road.
Claimant Ben Allison visited the scene of the accident on March 24, 1983. He
testified that he observed a hole, but he did not observe any warning signs.
Dr. Russell Rex Haynes, an engineer and accident reconstruction expert, visited
the accident site on November 16, 1984. He also went to Lambert’s Salvage Yard
and located the Allison vehicle. The vehicle was stacked on the bottom of a
stack of three vehicles. He removed the tie rod and the ball point stud from
the 1972 Ford Mustang. Dr. Haynes gave lengthy testimony pertaining to his
opinion as to the reason why the vehicle went over the bridge. He concluded
that there was not a defect in the Allison vehicle. After employing
professional methods of accident reconstruction, Dr. Haynes determined that
either impact with a pothole at least two feet in diameter and 12 inches deep,
or, alternately, impact with the east end of the bridge at the northeast corner
where the pavement is short of the bridge caused the damage to the Allison
vehicle.
Mr. Lawrence R. Hazelwood, a maintenance foreman with respondent, stated that
he was familiar with Route 52/6 in the vicinity of Nemours. He was involved
with a complete overlay paving of the road in 1980.
He stated that there was no evidence of potholes or pothole patching in the
vicinity of the bridge. He did not recall any complaints made prior to March.,
1983 concerning the bridge.
Robert Ralph Hudson, Jr., Chief Bridge Inspector for respondent, testified that
he inspected the bridge in question in March of 1982 and that he observed no
structural defects.
Richard W. Boyd, District III Branch Engineer with respondent, testified that
he did not remember any specific complaints prior to March 1983 regarding the
bridge in question. He also stated that there are no guardrails on the bridge
because “Basically because it is essentially a one—lane structure and if
guardrails were placed on it
W.Va.)
REPORTS STATE COURT OF CLAIMS 125
you’d essentially have a problem with any type of over—width vehicles
crossing the structure because of the narrow roadway width of 11 feet 6
inches. U
Claimants have not
established that the alleged road conditions were the proximate cause for the
vehicle in which the decedents were travelling to leave the bridge. The bridge
in this claim is typical of many bridges constructed on roads which are not
main thoroughfares in West Virginia. For this Court to find negligence on the
part of respondent, the Court would be engaging in pure speculation. There were
no eyewitnesses to the accident. It has not been determined what factors caused
this accident. The Court will not make an award based upon speculation. See
Eller vs. Dept. of Highways, 13 ct.cl. 402 (1981).
For these reasons, the Court is of the opinion to, and does, deny these claims.
Claims disallowed.
OPINION ISSUED DECEMBER 12, 1986
KAREN COLEMAN
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—94)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On February 18, 1986, at approximately 8:15 a.m., the claimant was operating
her 1982 Chevrolet Cavalier in a westerly direction on Route 60 below Campbells
Creek, Kanawha County, when her vehicle struck a pothole. The claimant
originally filed this action with the West Virginia Court of Claims as the
respondent. The Court, upon Ms. Coleman’s agreement, amended the style of the
claim designating the Department of Highways as the proper respondent. Two
tires and a hubcap were damaged in the amount of $214.47. The claimant was
unable to estimate the size of the pothole. She stated that she was not aware
of the pothole prior to striking it, even though she travelled this route five
days a week. The claimant testified that the traffic was heavy as it was the
morning rush hour. She was proceeding in the right or slow lane. Her vehicle
struck the hole with the left front and rear tires. She was travelling between
35 and 40 miles per hour. There was no way of dodging the hole “because any way
you moved there was pothole.”
The State is neither an insurer nor a guarantor of the safety of motorists on
the highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for
the respondent to be found liable for the damages
126
REPORTS STATE COURT OF CLAIMS [W.Va.
incurred1 proof of notice, either actual or constructive, of the defect in
question must be shown. As there was no such evidence presented, the claim must
be denied.
Claim disallowed.
OPINION ISSUED DECEMBER 12, 1986
KENNETH E. FRANK
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—l98)
Claimant appeared in person.
Andrew Lopez, Attorney
at Law, for respondent.
PER CURIAM:
On April 20, 1985, at approximately 10:45 P.m., the claimant was driving his
Chevrolet Impala Sedan in an easterly direction on Interstate 70 near Wheeling,
Ohio County. Interstate 70 is a four—lane highway.
According to claimant’s testimony, the weather was clear and the road was dry.
Claimant’s wife and two others were in his vehicle with him. They were
returning to Pittsburgh from the Wheeling Downs Race Track. Claimant’s vehicle
struck a hole in the pavement of a bridge overpass which was approximately two
feet by three feet. This defect was positioned in the right lane of the two
eastbound lanes. Claimant seeks an award of $250.00 for damage to the
automobile. Claimant alleges that the foundation of the overpass disintegrated
or perhaps became dislodged and fell to the street below. Claimant went down to
the street below and observed what his vehicle had hit. Claimant testified that
it was approximately two feet by three feet in size. He observed one vehicle
ahead of him and six or eight vehicles behind him which had hit the hole.
Claimant was unable to photograph the area because a member of the West
Virginia Department of Public Safety closed of f the lane. Claimant testified
that he did not see the defect before his vehicle hit
it. Claimant had no knowledge of any complaints made to respondent concerning
this defect.
Although the respondent’s duty of “reasonable care and diligence in the
maintenance of a highway under all the circumstances” (Parsons v. State Road
Comm’n., 8 Ct-Cl- 37 [1969)) may require respondent to put greater effort into
the maintenance of superhighways than in the maintenance of lesser travelled
county roads (Davis Auto Parts v. Dept. of Highways, 12 Ct-Cl- 31 [1977]),
proof of actual or constructive notice is required in all cases. As there was
no showing of such notice
W.Va.)
REPORTS STATE COURT OF CLAIMS 127
of negligence on the part of the respondent, the Court denies the claim. Claim
disallowed.
OPINION ISSUED DECEMBER 12, 1986
RETTIE LOUISE HAMON
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—31)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIA14:
On November 11, 1985, between 7:30 and 7:45 P.m., claimant was operating her
1980 Chevrolet Camaro, coming of f Route 34 onto Great Teays Boulevard, Teays
Valley, Putnam County, when her vehicle struck a pothole. Claimant seeks
$181.40 for damage to the tires of the Camaro.
The testimony revealed that claimant was travelling north toward Charleston.
She was travelling at approximately 10-15 miles per hour. The claimant stated
that the weather was bad. It was foggy and had been raining at the time this
incident occurred. The left front and left rear tires of her vehicle were
damaged. She estimated the hole to be three feet long, four feet wide, and two
feet deep. Although claimant had driven this route before, she had not noticed
this hole.
While the respondent is not an insurer of the safety of motorist using the
highways of the State, it does have the affirmative duty of using reasonable
care for their safety. Although there was no direct evidence of the existence
of this defect, the Court is of the opinion that it did have constructive
notice. The size of the pothole is indicative of its presence for a substantial
period of time prior to the date of this incident. See Stone v. Deot, of
Highways, 12 Ct.Cl. 259 (1979) and Miller V. Dept. of Highways, CC-85-l2 (1985). The Court hereby
makes an award to the claimant in the amount of $181.40.
Award of $181.40.
128
REPORTS STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED DECEMBER 12, 1986
DELTA W. HARRAM AND EVA KAY HARRAM
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—85)
Claimant, Delta W. Harrah, appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAN:
On February 18, 1986, at approximately 9:00 a.m., the claimant was operating
his 1984 Buick Century in a westerly direction on Route 60 at the Campbells
Creek intersection when the vehicle struck a pothole.
The claimant originally filed the claim in his own name. The car is titled in
both claimants’ names, Delta W. Harrah and that of his wife, Eva K. Harrah. The
Court then, upon its own motion, amended the style of the claim to include Eva
K. Harrah as a party claimant.
The claimant was travelling from his home in Fayetteville to Charleston at a
speed of approximately 30-35 miles per hour. The impact of the pothole damaged
the left front tire and wheel, and required realignment of the vehicle for a
total amount of $144.63. The claimant testified that he travelled this route
only occasionally. He observed the hole before his vehicle struck it. However,
there were holes in both the lane in which he was proceeding and the other lane
of the two—lane road. For that reason, it was impossible to avoid the hole. The
claimant estimated that the pothole is “half as big as a bathtub. He stated
that he had not given respondent notice prior to this accident as that was the
first time he had been “down through there for six months or even longer.”
The State is neither an insurer nor a guarantor of the safety of motorists on
the highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for
the respondent to be found liable for the damages incurred, proof of notice.,
either actual or constructive, of the defect in question must be shown. As
there was no such evidence presented, the claim must be denied.
Claim disallowed.
W.Va.]
REPORTS STATE COURT OF CLAIMS 129
OPINION ISSUED DECEMBER 12, 1986
DUBOIS JORDAN
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—67)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAN:
On February 17., 1986, claimant was operating his 1983 Dodge truck in a
westerly direction on Route 60, between 9:00 and 10:00 a.m., in the vicinity of
Campbell’s Creek, Kanawha County, when his vehicle struck several potholes.
Damage to the vehicle resulted in the amount of $122.11.
According to the testimony of claimant, it was daylight and raining.
Claimant was driving at approximately 20 miles per hour in the right lane of
the four-lane highway. In an attempt to avoid hitting holes at this location, claimant
drove to the left, and his vehicle struck a large, water—filled hole. He
estimated the hole to be two feet long, 14 inches deep, and 18 inches wide.
Claimant testified that he travelled this route frequently. He had observed
respondent’s workers repairing holes in the opposite lanes of Route 60 two days
before this incident occurred. He had not reported the hole to respondent.
This Court has repeatedly held that respondent is neither an insurer nor a
guarantor of the safety of travellers on its highways. However, the respondent
does have a duty of using reasonable care and diligence in the maintenance of
its ways. In the case of a heavily travelled major highway in this State, the
Court has held respondent liable for failure to repair a pothole of this size,
as it cannot have developed overnight. See Lohan v. Dept. of Highways, 11
Ct.Cl. 39 (1975), Poole v. Dept. of Highways, 15 ct.cl. 65 (1983). The Court
therefore makes an award to claimant in the amount of $122.11.
Award of $122.11.
130
REPORTS STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED DECEMBER 12, 1986
EUGENE 0. WORKMAN
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—154)
Claimant appeared in person.
Nancy J. Aliff,
Attorney at Law, for respondent.
PER CURIAN:
Claimant is an employee of respondent agency. On January 17, 1985, he was
working as an equipment operator. Claimant had backed a truck into respondent’s
garage to put chains on the truck. The vehicle which claimant was operating was
a dump truck with a spreader box on it. Claimant’s testimony revealed that the
time of the incident was approximately 1:30 or 2:00 a.m.; it was snowing
steadily. As claimant got out of the dump truck, he slipped on its snow—covered
running board. As he fell, his glasses came into contact with a large bolt protruding
from the spreader box on the dump truck. As a result, his glasses required
replacement. Claimant seeks $126.00 for the cost of his glasses and $245.60 for
vacation time he had to take while new glasses were being made.
Claimant testified that the bolt on the dump truck was in its normal position
at the time of this incident, “although it should have been cut of f a long
time ago.” Claimant was aware of the presence of the bolt protruding from the
vehicle. He had driven this vehicle several days previous to this incident.
Claimant estimated that he first noticed the protruding bolt on this particular
vehicle when they first started putting the spreader boxes on during the
winter.” He had notified Jim Ashcraft, a mechanic of respondent, of the condition
of the bolt a couple of days before the incident occurred.
Claimant further testified that the weather conditions were very poor on the
night of this incident. Although he missed work while waiting for his
eyeglasses to be replaced, he did not lose any wages from respondent.
On the basis of this record, the Court finds no evidence that the respondent
was negligent. The Court must, therefore, deny the claim.
Claim disallowed.
W.Va.]
REPORTS STATE COURT OF CLAIMS 131
OPINION ISSUED DECEMBER 12, 1986
KAREN S. MURRAY AND DANIEL J. MURRAY
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—181)
Claimants appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On April 8,, 1985, claimant Karen S. Murray was operating a 1985 Buick Skylark,
belonging to herself and her husband, Daniel J. Murray, on Secondary Route
50/2, at approximately 1 4/10 miles south of U.S. Route 50, when the automobile
slid on mud at that location. As a result, claimant incurred damages to the
automobile in the amount of $1,675.66. The claimants seek $100.00, the
insurance deductible. The $100.00 is the amount of their out—of—pocket expense.
Claimant Karen S. Murray testified that, on the day of the incident, it had
been cold with brief rain or snow showers. It was about 5:50 in the evening.
She was travelling at approximately 25 miles per hour. A few days prior to the
incident, respondent had been cleaning out the ditches. As a result, the road
was completely covered with mud.” Her automobile slid in the mud and collided
with another vehicle. She travels this route every day going to and returning
from her place of employment. She had encountered the mud on the morning of the
day of the accident.
The State neither insures nor guarantees the safety of motorist travelling on
its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1941). Claimant
Karen S. Murray, by her own testimony, had observed respondent’s crew working
and was aware of the presence of mud on the road at this location. For that
reason, extra precaution was necessary on her part. The Court is of the opinion
to, and does disallow the claim.
Claim disallowed.
132
REPORTS STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED DECEMBER 12, 1986
RICHARD SAUNDERS, D/B/A RICK’S USED CARS
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—331)
John R. Mitchell, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
The claimant alleges that respondent constructed a ditchline directly in front
of claimant’s property, which has made it impossible for claimant to utilize
his property. As a result, the claimant seeks
$20,000.00.
The claimant has operated a used car lot on his property along U. S.
119 in the area of Falling Rock since 1968. He testified that the area
in front of his business was excavated for a ditchline in 1979 and in
1984, respectively. The claimant requested that respondent place a
drain in the ditchline, but the drain has not been placed.
There is a house on the property which doubled as the office for the claimant’s
business and had an upstairs apartment which was rented. Since the excavation
for the ditch, the claimant has been unable to rent the apartment. Furthermore,
the location of the ditch prevents parking and access to the business. The
claimant testified that “approximately 400 or 500 feet on up the road would be
the closest place that you could get of f the road anywhere through there.” The
claimant has ceased using the property for all purposes. Although the claimant
stated that the used car business was a profitable one, he could not estimate
the number of cars sold per year. The claimant confirmed the fact that he did
receive correspondence in March 1977 from the Department of Motor Vehicles,
which agency licenses used car lots. This letter stated that claimant’s lot was
extremely run down and there did not seem to be any business being conducted
from the lot.
William Jerald Reese, a qualified appraiser of real estate in Kanawha County,
stated that the property in question, at present, has no value. Mr. Reese’s reasons
for this evaluation are that it is impossible to get into the property, and
there is no parking along the highway in front of the business due to the
ditchline.
Leslie A. Putillion, an excavation contractor, testified that the cost of
placing a culvert at this site would be approximately $6,870.00. Mr. Putillion
could not provide the Court with the specific requirements respondent has with
reference to constructing entrances and exits to State highways.
Nelson L. Fowler, Assistant District Maintenance Engineer for respondent,,
testified that he is familiar with the location in question. The drainage ditch
measures approximately 8—10 inches deep
W.Va.]
REPORTS STATE COURT OF CLAIMS 133
from roadway elevation and perhaps 14—16 inches deep from the existing ground
elevation. It is approximately 100-150 feet long. Mr. Fowler spoke with the
claimant on three separate occasions. He advised the claimant of the
requirements for approach permits, providing the necessary information and
forms for the permit. A verbal proposal concerning the ditchline was
unacceptable to the respondent and was rejected. A written proposal was not
made.
The record in this claim fails to establish that claimant’s property is no
longer usable. The ditchline was necessary to remedy drainage of the State
highway in front of claimant’s property. The claimant has made no effort to
submit proposals to respondent so that a mutually agreeable solution can be
found to provide access to the property. For these reasons, the Court is of the
opinion to, and does, deny this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 12, 1986
JOYCE PRIDDY
vs.
• DEPARTMENT OF
HIGHWAYS
(CC—86—l9)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAN:
On November 11, 1985, between approximately 8:00 and 9:00 p.m., claimant was
driving her 1980 Ford Pinto on Great Teays Boulevard, from Milton, Cabell
County, when her vehicle struck a pothole. Claimant had been travelling on
Route 34 and had turned left onto Great Teays Boulevard. Both the front and
rear tires were damaged in the total amount of $118.38. Claimant was not aware
of the existence of this particular pothole, but stated that there were always
holes in this road. The pothole measured approximately four feet long, three
feet wide, and 24 inches deep.
Claimant testified that Great Teays Boulevard is a two-lane, asphalt road. On
the night of this incident, it was misty and raining. She was travelling at
approximately 10-15 miles per hour. The left front and left rear tires of
claimant’s vehicle struck the hole. Claimant had not driven this route for a
month before the accident.
While the State does not insure the safety of travellers on its highways,
respondent does owe a duty of reasonable care and diligence in
134
REPORTS STATE COURT OF CLAIMS [W.Va.
the maintenance of the highways. This Court has previously held respondent
liable for damages caused by large potholes, where it has been determined that
respondent should have discovered and repaired the defect. Bailey v. Dept. of
Highways, 13 Ct.Cl. 144 (1980). Burbridge
v. Dept. of Highways, 15 Ct.Cl.. 190 (1984). The Court finds that this pothole
was of sufficient size that it must have been there for some time, and makes an
award to claimant.
Award of $118.38.
OPINION ISSUED DECEMBER 12, 1986
ROYAL RESOURCES CORPORATION
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—23)
Russell Clawges, Jr., Attorney at Law, for
Nancy J. Aliff,
Attorney at Law, for respondent.
PER CURIAM:
On December 11, 1985, Edwin T. Stitt was operating a 1984 Lincoln automobile
owned by claimant company, of which he is president, at the intersection of
Locust Avenue and Country Club Drive, in Fairmont, Marion County. The vehicle
struck a hole and drain at this location and sustained damages. Claimant
company originally sought $1,090.69 in damages. At the close of the case,
claimant’s counsel amended the damage amount to $2,500.00.
Albert David, part owner of the ground and the Five Star Convenience Store
business, testified that respondent put the storm drain in. Prior to December
1985, barrels had been placed in the hole. He could not say whether or not
respondent had placed the barrels.
Edwin T. Stitt testified that the incident occurred at approximately 9:00 p.m.
It was dark at the time. He, accompanied by his son, was travelling to the Five
Star Convenience Store. The vehicle ran into the hole and storm drain or grate
which,is located along Country Club Drive and the parking lot to the
convenience store. He stated that there were neither markings, yellow lines,
nor a barrel in the vicinity of this drain and hole, lie drove this route
several tines a month, but he did not remember whether he noticed the hole.
Dwayne Allen Miller, County Assistant Supervisor, Marion County, for respondent
testified that the drain in the vicinity of Country Club Road and U.S. Route 19
is located 15 feet from the center line of Country Club Road. He stated that to
his knowledge, it is of f respondent’s right—of-way. Prior to December 11,
1985, he had not received, nor did
W.Va.]
REPORTS STATE COURT OF CLAIMS 135
he know of, any complaints with regard to this drain. He stated that respondent
did place a barrel in this drain in December 1985.
The Court is unable to discern from the testimony presented who maintains
control over the drain at the location of this accident. The Court is unable to
grant an award based on speculation. For that
reason, the Court is of the opinion to, and does, disallow the claim.
Claim disallowed.
OPINION ISSUED DECEMBER 12, 1986
BRADY C. SINGLETON
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—25)
Mary Ann Singleton appeared for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAN:
On June 6, 1985, between approximately 3:00 and 3:30 P.m., claimant’s wife was
operating her husband’s 1977 Monte Carlo in a southerly direction, in Twilight,
between Robin Hood and Bandytown, when the vehicle struck a pothole. The left
front and left rear tires and a rim of the vehicle were damaged in the amount
of $
210.55.
Claimant’s wife, Mary Ann Singleton, testified that she had driven her husband
to his place of employment, the Peabody Coal Co. She was accompanied in his
vehicle by his mother. Claimant’s wife testified that it was raining and
cloudy, and the road was wet. The vehicle struck several holes which were
filled with water. Claimant’s wife could not, by route designation or name,
identify the road on which they were travelling when this incident occurred. it
is a two—lane, asphalt road. Claimant’s wife was driving at approximately 20 - 25 miles per hour. Claimant’s wife
did not travel this route on a frequent basis.
No evidence was presented to show that the respondent had actual or
constructive notice of the existence of the pothole in question. Such evidence
must be established in order for the respondent to be found guilty of
negligence. Furthermore, the claimant has failed to show, to the satisfaction
of this Court, that the road where the incident occurred is a State—maintained
highway. The Court must therefore deny the claim.
Claim disallowed.
136
REPORTS STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED DECEMBER 12, 1986
DEBORAH D. PADGETT
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—63)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On September 24, 1985, at approximately 2:45 p.m., claimant was operating her
1979 Mercury Cougar. She was leaving Mount View and proceeding north on State
Route 52, known as Virginia Avenue, when her vehicle struck a grate. The grate
was loose and flipped up against the vehicle. Claimant seeks $654.78 for damage
to her vehicle which resulted from this incident.
The testimony of the claimant revealed that on the day on which this incident
occurred, it was dry and sunny. The highway in question is a two-lane highway,
but the center line is not marked. Claimant was travelling at about 15—20 miles
per hour. The grate is located on the right side of the sidewalk. The grate is
approximately 24 inches from the curb. The claimant was aware of the presence of
the grate as she had travelled this route prior to this incident. On this
occasion, though, the grate “flipped out.” The right, rear quarter panel of
claimant’s vehicle was damaged.
The Court has consistently held that the State is neither an insurer nor a
guarantor of the safety of persons travelling on its highways. Adkins v.
Sims, 130 W.Va. 645 (1947). The evidence reveals that the loose condition
of the grate occurred suddenly. The record reflects no notice being given
respondent of the condition of the grate prior to claimant’s incident. The
Court, therefore, perceives no negligence on the part of the respondent, and
the claim must be denied.
Claim disallowed.
OPINION ISSUED DECEMBER 12, 1986
CHESTER LEWIS
VS.
DEPARTMENT OF HIGHWAYS
(CC—86—81)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
W.Va.)
REPORTS STATE COURT OF CLAIMS 137
PER CURIAM:
On February 19, 1986, between approximately 7:30 and 8:00 p.m., claimant’s
wife, Margaret Lewis, was operating claimant’s company car, a 1985 Celebrity,
when the vehicle struck a pothole. Claimant has an agreement with his employer,
Turnpike Chevrolet, that he is responsible for damage to the company vehicle up
to $500.00. Claimant’s wife was travelling on Kanawha Turnpike in South
Charleston, West Virginia. She testified that the road is a two-lane highway,
and the road was very dark at the time of this incident. She was travelling at
approximately 30 —
35 miles per hour. The
vehicle struck a pothole which measured approximately 3 112 — 4 feet long, 2 112 feet wide, and 6
— 8 inches deep. She was not aware
that the hole existed prior to the vehicle striking it. The hole was on the
left—hand side of her lane of the road. The vehicle’s left front tire struck
the hole. The vehicle was damaged in the amount of $364.52.
Claimant’s wife was driving home, and she had her five—year—old daughter in the
car with her at the time of this incident.
While the State does not insure the safety of travellers on its highways,
respondent does owe a duty of reasonable care and diligence in the maintenance
of the highways. Although there was no direct evidence that the respondent had
actual notice of the existence of this defect. The Court is of the opinion that
it did have constructive notice. The size of the pothole is indicative of its
presence for some time prior to the date of this incident. See Stone v.
Dept. of Highways, 12 Ct.Cl. 259 (1979) and Miller v. Dept. of Highways,
CC-84—7l (1985). The Court hereby makes an award to the claimant in the
amount of $364.52.
Award of $364.52.
OPINION ISSUED
DECEMBER 12, 1986
THE LAWHEAD PRESS,
INC.
VS.
GOVERNOR’S OFFICE OF COMMUNITY AND INDUSTRIAL
DEVELOPMENT
(CC—86—149)
Bill Watkins appeared for the claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAN:
In November 1984 claimant company entered into a Purchase Order dated December
3, 1984, to print a magazine, “The Get—Away Guide,” for the respondent State
agency. The Court, on its own motion, amended the style of the claim
designating the Governor’s Office of Community and Industrial Development as
the proper party respondent. The cost of paper for the publication of the
magazine was substantial. There were
138 REPORTS STATE COURT OF CLAIMS [W.Va.
delays
in printing the magazine for which the claimant alleges that it lost interest
on the monies expended for the paper. The amount of the interest, $1,063.20,
together with $351.90 for extra work performed in the printing of the magazine,
constitutes the basis of this claim. The respondent admits the portion of the
claim for the extra work in the amount of $351.90, but denies liability for the
interest charges.
Bill Watkins, a representative of the claimant company, testified that he was
informed that his company was to be awarded the printing job in November 1984.
Shortly thereafter, he was informed by an employee of the respondent, Steve
Scott, that the Governor’s Office requested that the printing job be put “on
hold.” This request was made due to the pending changes in the administration.
Mr. Watkins represented to Mr. Scott that there would be a cost for interest on
the money the claimant company borrowed to purchase the necessary paper for the
job. At that time, in January 1985, he estimated that the interest would be in
the amount of $500.00 or $600.00.
The claimant company agreed to honor the bid rather than rebidding the job. The
agreement made was for an original contract of $87,000 and a change order.
There was an original purchase order issued and approved. However, the change
order pertaining to the matter of the interest was not approved by the
Department of Finance and Administration.
Tom Pendleton, an employee of the respondent, testified that there was a change
order issued on October 1, 1985, in the amount of $1,415.10 to cover the extra
work and the interest.
West Virginia Code §14-2—12 provides that .... “In determining the amount of a claim, interest shall not
be allowed unless the claim is based upon a contract which specifically
provides for the payment of interest.” The statutory authority is very clear
regarding this matter. There is no provision for interest in the Purchase
Order. Therefore the Court makes an award in the amount of $351.90, which
amount has been admitted by the respondent, and disallows the amount of the
claim for interest.
Award of $351.90.
OPIONION ISSUED JANUARY 6, 1987
RONALD L. HUNT
VS.
DEPARTMENT OF MOTOR VEHICLES
(CC—36—398)
Claimant appeared in person.
W.Va.]
REPORTS STATE COURT OF CLAiMS 139
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAM:
Claimant seeks $184.75 for overpayment of the Privilege Tax in registering his
1981 Ford pickup truck in West Virginia. In addition, he seeks $60.00 for
mileage occasioned by seven trips to and
from his home in Hurricane, West Virginia, to Charleston, West Virginia, in pursuing
this claim.
Claimant had traded his Chevrolet van for the 1981 Ford pickup truck. As a
result of that transaction, he ad an encumbrance which was reflected on the
title of the vehicle. The Privilege Tax as assessed on an amount that was in
excess of the value of the transfer of he vehicles. The claimant made trips to
the respondent agency and to the Governors Office in an attempt to resolve this
matter. He stated that it is 29 and 1/2 miles one way from his home to the
Capitol.
In its Answer, respondent admits the allegations regarding the overpayment of
fees to respondent agency. The Court denies the claim for mileage to and from
charleston but makes an award of $184.75, representing overpayment of the
privilege tax.
Award of $184.75.
OPINION ISSUED JANUARY 6, 1987
KAREY LYNN WELLS
VS.
BOARD OF REGENTS
(CC—85—253)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAM:
In November, 1984, the claimant was a student at West Virginia University,
Morgantown, Monongalia County. She left the University’s Towers Dormitory for
the Thanksgiving vacation. She returned to find a number of her personal
possessions missing, and seeks $380.00 as compensation for the missing items.
The claimant contends that a master key to the dormitory was stolen, and she
alleges negligence on the part of respondent for failing to safeguard her
personal property. She does not have any direct personal
140
REPORTS STATE COURT OF CLAIMS [W.Va.
knowledge that this master key was missing.
Communication from the state’s insurance carrier, CNA, indicated that CNA has
coverage for claims of this nature, but denies liability in this specific case.
West Virginia Code §14—2—14(5) provides that the Court’s jurisdiction does not extend
to a proceeding which may be maintained against the state, by or on behalf of
the claimant in the Courts of the State. As CNA Insurance provides coverage for
West Virginia University as carrier for the state of West Virginia, claimant
may pursue this claim in the courts of this State. For his reason, the Court
lacks jurisdiction of this claim and is of the opinion to and does deny this
claim.
Claim disallowed.
OPINION ISSUED JANUARY 30, 1987
PETER E. WU
VS.
BOARD OF REGENTS
(CC—84--318)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIPiN:
On October 25, 1984, the claimant was residing in the Towers Dormitory at West
Virginia University, Morgantown, Monongalia County. At approximately 9:00 p.m.,
as a result of a surge in the power system in the building, several items of
personal property of the claimant became in operative. He seeks $165.00 as
compensation for same.
The claimant testified that at the time of this incident the lights in his room
became brighter and then they dimmed, and that there was not an electrical
storm at the time. He stated that this electrical outage might also have
occurred the day before, that it occurred on October 25, 1984, and that to his
knowledge, it never occurred again. Prior to this event, he did not report it
to anyone at the University.
Carl Marcucci, another resident of the Towers at the time of this incident in
1984, stated that he observed this power disruption about an hour before
claimant’s experience in his own room. He then went to the room of the
claimant. He noticed that the lights in the claimant’s room became very bright.
The music on the stereo was distorted. He noticed
W.Va.]
REPORTS STATE COURT OF CLAIMS 141
a light which first smoked and then sent out. Marcucci did not report this
either.
Thomas Dale Matthews. a building inspector for the Housing Division of the West
virginia University, said that he had no knowledge of any complaints prior to
this incident. A work request was written on November 1st and at that time the
maintenance person discovered that some outlets die not have power in them. The
respondent introduced correspondence from Stephen Showers, Director, Housing
and Residence Life at West Virginia University, to Chancellor Ginsberg. The
letter explained that a failure in the building wiring, as the result of aging,
causing outlets in certain rooms to receive 220 volts of electricity instead of
110.
It is the opinion of the court that the responsibility for the electrical system
is that of the respondent; therefore, the claimant is entitled to an award for
losses which he sustained when the electrical system went awry. For these
reasons, the court makes an award to the claimant in the amount of $165.00.
Award of $165.00.
OPINION ISSUED MARCH 27, 1987
JOHN H. SUTPHIN AND NANCY SUTPHIN
VS.
DEPARTMENT OF HIGHWAYS
(CC—84—275)
John R. Mitchell, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
WALLACE, JUDGE:
Claimants John H. and
Nancy Sutphin are owners of property located on Route 4 in Julian, Boone
County, which they purchased in 1957. Little Coal River is located behind the
property. There are two 200—foot lots which are located between the road and
the river. Claimants reside in a house on one of these lots. The property is
below the road. Claimants allege that respondent failed to properly maintain
the ditch lines of Route 4 which causes water to flow onto claimants’ property.
Claimants maintain that the lot adjacent to the lot on which the house is
located is no longer usable and they seek $50,000.00 for damages to the
property.
Claimant John Sutphin testified that when the property was purchased
.there wasn’t any drainage, and there wasn’t any bad water problems.” He did
state, though, that the land remained damp in the early spring as
142
REPORTS STATE COURT OF CLMMS [W.Va.
a result of the spring rains. He contacted the Department of Agriculture and
had drain tile placed in the bottom field to alleviate this problem in the
early 1960’s. Since the construction of Corridor G, the property has
experienced severe water problems. At the time, Route 4 was also widened., and
rock base was placed in the ditch lines. He stated that there are three
drainpipes located under the surface of Route 4 below his property, and they
are “.
. .completely filled
over and stopped completely up level with the road.” Mr. Sutphin placed a ditch
approximately halfway back from the edge of the road to the river. Mr. Sutphin
also explained that a culvert is located under the highway just above the
driveway of the claimants’ house. This culvert empties onto the adjoining
property which is owned by a Mr. Gillespie. Claimant John Sutphin admitted that
most of the water is coming from the Gillespie property.
Claimant Nancy Sutphin testified that when they purchased the property, the lot
in question was damp, but water did not stand on it. She stated that from the
early 60’s to approximately 1977 there were no drainage problems on the
property. The problems started when the ditches along Route 4 were filled with
rock. She confirmed the fact that the land is higher behind their house.
William Jearld Reese, a real estate appraiser, testified that he appraised the
Sutphin property. He stated that this property is useless due to water damage.
He further stated that if the proper drains were placed, the lot would be
appraised at $28,000.00.
No evidence was presented by the respondent and after careful consideration of
the evidence presented by the claimant, the Court concludes that the drainage
on claimants’ property results from a combination of factors. The property is
in a natural drainage area. Respondent’s failure to maintain the ditch lines of
Route 4 ha,s caused an excess of water to drain onto claimants’ property. Claimants’
property is also subject to drainage from the adjoining property, and this
water may be flowing from the surface of Route 4. Although claimants attempted
to alleviate these problems, the surface water from the highway has prevented
claimants from the full use of their land. For these reasons, the Court is of
the opinion to make an award to the claimants in the amount of $16, 800.00.
Award of $16,800.00.
OPINION ISSUED
MARCH 27, 1987
S1\NDRA MCELHENIE, PERSONAL REPRESENTATIVE OF THE ESTATE OF MARVIN
MCELHENIE, DECEASED
VS.
DEPARTMENT OF HIGHWAYS
(CC—85—36)
W.Va.]
REPORTS STATE COURT OF CLAIMS 143
William S. Steele and Ted Kanner, Attorneys at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
GRACEY, JUDGE:
This is a wrongful death action which arises out of a truck accident which
occurred on June 2, 1983. The wife of the deceased driver of the truck, Sandra
McElhenie, alleges negligence on the part of the respondent for its failure to
provide warning signs at the accident site.
The claimant and respondent, by their attorneys, entered into a stipulation
wherein the parties agreed to the following facts. The date upon which this
accident occurred was June 2, 1983. The location of the accident was the
intersection of Routes 52 and 65 in Mingo County. Sandra McElhenie is personal
representative of the Estate of Marvin Earl McElhenie. Marvin Earl McElhenie
died as a result of the accident. On the date of the accident, there were no
signs warning drivers to use lower gears on the downgrade at the scene. Route
52, approaching the State Route 65 intersection, is an 11 percent downgrade.
The claimant does not allege a defect in roadway surface or design.
The decedent was operating a semi—tractor and trailer loaded with wooden planks.
He was proceeding down Buffalo Mountain which approaches the intersection of
U.S. Route 52 and State Route 65, Mimgo County. He apparently lost control of
the vehicle at some point on the hill. The tractor—trailer rig overturned at
the intersection, and Marvin McElhenie died as a result of the accident.
Randy Stepp, a deputy sheriff, investigated this accident. He described the
site of the accident as being a “T intersection.” He stated that it is at the
bottom of the mountain. He approximated the down grade to be a mile and a half
from the crest of the hill. He further revealed that, from the evidence of his
investigation, he discerned that the driver of the rig lost control at the foot
of the hill.
Schela Sydnor, employed by respondent in the Personnel Division, District 2,
took citizens’ complaints concerning roads in the spring of 1983. She
identified a complaint made by Abraham R. Evans concerning the high speed of
the tractor trailers at the site of the accident in question in April, 1983.
The complaint letter requested a sign indicating the grade of the hill. When
queried, she stated that she reviewed the complaint records from 1980 through
June 2, 1983. The complaint made by Mr. Evans is the sole complaint which she
discovered for that time period.
Ken Kobetsky, Director of the Traffic Engineering Division of respondent,
testified that there were warning signs for down grades on less than 11 percent
of the roads in West Virginia. He further stated that he assumed it is probably
true that there are warning signs for stretches of down grade that are less
than 8,000 feet in length. Mr. Kobetsky stated that there were no signs
indicating the down grade, but
144
REPORTS STATE COURT OF CLAIMS [W.Va.
there were signs that the decedent passed coming up the hill which indicated
that there was a grade.
Floyd McElhenie, brother of the deceased and a certified licensed mechanic in
Michigan, stated that he is familiar with the truck involved in this accident.
He testified that repairs had been done on the truck before June 2, 1983. These
repairs included replacing the rear brake lining and the nazi brake system. He
examined the truck after the accident and determined that the brakes were
functioning when the deceased proceeded down the hill. He also stated that
there was a 15 mile— per—hour speed limit sign with a curve sign attached to it
at the top of the mountain before the downgrade portion of the road begins.
The contention of the claimant that the respondent was negligent in failing to
properly place grade signs indicating that the grade of Route 52 required
special attention to braking is a contention without merit. It is the opinion
of the Court that negligence on the part of the respondent has not been
established. The principle of law that travelers travel at their own risk was
enunciated by the Supreme Court of Appeals in Adkins v. Sims, 130 W.Va.
645, 46 S.E. 2d 81 (1947) .
This Court has adhered
to that principle consistently in former opinions. See Bickerstaff v. Dept.
of Highways, 11 Ct.Cl. 254 (1977) and Ct.Cl. 254 (1977) and Cassel v.
Dept. of Highways, 8 Ct.Cl. 254 (1971)
The record in this claim reveals that the decedent was unfamiliar with this
section of highway in West Virginia. For reasons unknown to the Court, the
decedent lost control of the tractor—trailer rig which he was operating on a
down—grade of Route 52. To make an award to the claimant would require
speculation on the part of the Court. This Court declines to resort to
speculation in the determination of a claim.
For these reasons the Court is constrained to and does disallow the claim.
Claim disallowed.
OPINION ISSUED
MARCH 27, 1987
HAROLD M. STUMPP
VS.
DEPARTMENT OF CORRECTIONS
(CC—86—246)
Claimant represented self.
Robert D. Pollitt, Assistant Attorney General; for respondent.
PER CURIP,N:
Claimant was employed by the West Virginia State Penitentiary at
W.Va.]
REPORTS STATE COURT OF CLAIMS 145
Moundsville, a facility of respondent, from March 1, 1982 to October 2, 1984,
as a correctional officer. As a requirement of his position, claimant was
required to report 10 minutes before each shift that he worked. As this
requirement was beyond his 40—hour—per—week responsibility (West Virginia Code
Chapter 21, Article 5C, Section 3A), claimant seeks $562.11 in back pay for the
additional time which he worked for respondent.
Hilda L. Williams, Personnel Officer with respondent, testified that an
individual named Kevin Church filed a grievance through the Civil Service
Commission. The basis of Church’s grievance was the same as that of the
claimant’s. Kevin Church was awarded overtime pay. At the time of the Order of
the Civil Service Commission (November 14, 1984) all the other correctional
officers to whom the Order applied were compensated for the ten minutes of
overtime which they were required to work prior to the beginning of each shift.
The claimant filed his complaint on June 26, 1986. He is entitled to recover
$64.54 for overtime which he worked during the period June 26, 1984 to
September 30, 1984. The Court is required to apply West Virginia Code SS14-2—2l
which provides that “the Court shall not take jurisdiction of any claim . . . unless notice of such claim be
filed with the clerk within such period of limitation as would be applicable
under the pertinent provisions of the Code of West Virginia . . . . West Virginia Code §55—2—12
mandates that the applicable statute of limitations is two years. For that
reason, the Court makes an award to the claimant of $64.54.
Award of $64.54.
OPINION ISSUED
APRIL 23, 1987
CAPITOL BUSINESS
EQUIPMENT, INC.
VS.
DEPARTMENT OF FINANCE AND ADMINISTRATION
(CC—87—27)
No appearance by claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAN:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant seeks $365.60, which includes interest, for a chair which was
delivered to the respondent. The invoice for the chair was submitted but never
paid. In its Answer, respondent adniits the validity of the claim in the amount
of $355.00, but denies the amount of the interest
146
REPORTS STATE COURT OF CLAIMS [W.Va.
added to the original invoice. Respondent states that the invoice could not be
paid because the fiscal year in which the obligation was incurred had ended.
Respondent further states that sufficient funds were on hand at the close of
the fiscal year in question.
The Court is restricted by W.Va. Code §14-2—12 from awarding interest unless
the claim arises on a contract specifically providing for the paynent of. Based
on this section, the Court concludes that the respondent is not legally liable
for the payment of
accrued interest. The Court therefore grants an award to the claimant in the
amount of $355.00.
Award of $355.00.
OPINION ISSUED
APRIL 23, 1987
CAPITOL BUSINESS
EQUIPMENT ,
INC.
VS.
DEPARTMENT OF PUBLIC SAFETY
(CC—87—28)
No appearance by claimant.
Robert D. Pollitt, 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 seeks an award of $663.78, which includes, interest, for chairs which
were shipped to the respondent. The invoice for these chairs was submitted, but
has not been paid. In its Answer, respondent admits the validity of the claim
in the amount of $660.00. Respondent denies the amount of the interest added to
the original invoice. Respondent states that the invoice could not be paid
because the fiscal year in which the obligation was incurred had ended.
Respondent further states that sufficient funds were on hand at the close of
the fiscal year in question.
The Court is restricted by W.va. Code §14—2—12 from awarding interest unless the claim arises on
a contract specifically providing for the payment of interest. Based on this
section, the Court concludes that the respondent is not legally liable for the payment
of accrued
W.Va.]
REPORTS STATE COURT OF CLAIMS 147
interest. The Court, therefore, grants an award to the claimant in the amount
of $660.00.
Award of $660.00.
OPINION ISSUED
APRIL 23, 1987
JEFFREY ALAN RICHARD
VS.
DEPARTMENT OF EDUCATION
(CC—87—37)
No appearance by claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAN:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant seeks an award of $202.50 as salary compensation for the months of
January, February and March, 1986. Claimant is a certified teacher with
respondent’s Cohn Anderson Center facility. He completed the course work for a
Masters degree in August, 1985. He was granted advanced certification and
salary adjustment, but he never received same. In its Answer, respondent admits
the validity and amount of the claim and states that it was not paid although
there is a valid nonappealable Order by the West Virginia Education Employees
Grievance Board directing payment by the respondent. The respondent has no
statutory authority for paying the Order as the amount represents personal
services funds and respondent may not pay retroactive salary increases.
Respondent further states that sufficient funds were on hand at the close of
the fiscal year in question.
In view of the foregoing, the Court grants an award to the claimant in the
amount of $202.50.
Award of $202.50.
148
REPORTS STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED MAY 12, 1987
ROBERT KEVIN GILLISPIE AND CAROLYN K1Y GILLISPIE
VS.
DEPARTMENT OF HIGHWAYS
(CC—8 6—140)
Claimants appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIP,M:
On February 18, 1986, at approximately 11:15 a.m. claimant Robert K. Gillispie
was operating his Chevy S—b pickup truck on Cow Creek Road, Putnam County, when
his vehicle struck a pothole. The claimants seek $10,000.00 for damages to the
vehicle and for physical injuries to Carolyn Kay Gillispie. The Court, on its
own motion, amended the style of the claim to reflect the proper party
respondent, the Department of Highways. Claimants have received $6,700.00 from
their insurance carrier. The insurance policy has a $500.00 deductible.
Claimants incurred $605.29 in medical bills for physical injuries sustained by
claimant Carolyn Kay Gillispie.
Claimant Robert Gillispie was travelling on Cow Creek Road to pick up his
cousin. He was proceeding at approximately 25 mph. It was sunny, but the road
was wet due to a previous snowfall. He was accompanied in the vehicle by his
wife, Carolyn Kay Gillispie.
Claimant Robert Gillispie testified that at the time of the accident his
vehicle had just rounded a curve. The hole was filled with water, and when his
vehicle struck the hole, it went into a small skid, landed in a ditch and
tipped over. The road is wide enough for two cars to pass.
Homer Gillispie, father of Robert Gillispie, testified that he visited the
scene of the accident approximately 20 minutes after it occurred. He stated
that the hole was “approximately 16 to 18 inches across and
the opposite way it was close to 5 feet across.” He also indicated that the
hole was from 16 to 18 inches deep.
Claimant Carolyn Kay Gillispie testified that she was with her husband on the
day of this incident. As a result of the accident, she sustained injuries to
her back, and was treated by Dr. Curry on February 18, 1986. Dr. Curry
prescribed pain pills. Subsequently, she was examined by another doctor who
also checked her back on two occasions. She stated that she still experiences
back pain.
Joseph Gillispie, cousin of claimant Robert Gillispie, testified that the hole
had been present for over a month. He had not notified the respondent of the
presence of the hole.
W.Va.]
REPORTS STATE COURT OF CLAIMS 149
Zenith Porter, an employee of respondent, testified that Cow Creek Road has a
Route 40 designation. Porter worked at the Hurricane Substation at the time of
this accident, where he took complaints about this road. Mr. Porter stated that
prior to February 18, 1986, he had not received any complaints. He said that,
“We was just coming out of a snow storm,” and there was a truck dispatched down
in that area to plow the roads. He also stated that the truck drivers report
hazards either by telephone or in person when they return to the substation.
While the State does not insure the safety of travellers on its highways,
respondent does owe a duty of reasonable care and diligence in the maintenance
of the highways. Although there was no direct evidence that the respondent had
actual notice of the evidence of this defect, the Court is of the opinion that
it did have constructive notice. The size of the pothole is indicative of its
presence for some tine prior to the date of this incident. See: Stone vs.
Dept. of Highways, 12 Ct.Cl. 259 (1979) and Miller vs. Dept. of
Highways, CC—85—12 (1985). The Court hereby makes an award to claimant
Robert Gillispie in the amount of $500.00 for the deductible and $1,200.00 to
Carolyn K. Gillispie for her physical injuries.
Award of $500.00 to Robert Kevin Gillispie.
ward of $1,200.00 to Carolyn Kay Gillispie.
150 REPORTS STATE COURT OF CLAIMS [W.Va.
W.Va.]
REPORTS STATE COURT OF CLAIMS 151
REFERENCES
• Bridges
• Building Contracts
• Contracts —
See also Building
Contracts
• Damages
• Drains and Sewers
• Falling Rocks —
See also Landslides
• Independent Contractors
• Interest
• Landslides —
See also Falling Rocks
a Leases
• Limitation of
Actions
• Negligence -
See also Streets and
Highways
• Notice
• Office Equipment and Supplies
• Pedestrians
• Prisons and Prisoners
• Public Employees
• Releases
• State Agencies
• Streets and Highways -
See also Falling
Rocks; Landslides; Negligence
• Trees and Timber
• Trespass
• W.VA. University
152 REPORTS
STATE COURT OF CLAIMS [W.Va.
BRIDGES
KAREN SUE BISSETT VS. DEPARTMENT OF HIGHWAYS (CC-86-154)
Where claimant is aware of the existence of the
defect in a bridge and she backed into the hole causing damage to her vehicle, the Court denied the claim based upon the doctrine of
comparativ, negligence Psge
120
JAMES CHARLES, ADMINISTRATOR OF THE
ESTATE OF BILLY A. CHARLES DECEASED VS.
DEPARTMENT OF HIGHWAYS AND BEN H.
ALLISON, ADMINISrRATOR OF THE ESTATE OF DAVID W.
ALLISON, DECEASED VS. DEPARTMENT OF HIGHWAYS (CC-83-356) & (CC-84-68)
The Court denied a
claim wherein two individuals were killed when their vehicle went of f a bridge and turned over into a creek
as there were no eyewitnesses and the
factors which caused the accident have not been determined; the Court will
not make an award upon
speculation Page
123
COMMERCIAL UNION INSURANCE CO •, AS SUBROGEE OF CHARLES WILLIAM MOONEY, INDIVIDUALLY VS. DEPARTMENT OF HIGHWAYS (CC-85-355)
The Court denied a claim for damage to the
windshield of a vehicle as concrete allegedly fell from a bridge dropping onto
the vehicle. The Court determined that a finding of negligence by respondent
would require speculation and the Court cannot
speculate Page 84
CARL A. DANIELS VS. DEPARTMENT OF
HIGHWAYS (CC—83-274)
The Court made an award to claimant for damage to real property which occurred
after a bridge was constructed by respondent and water was caused to be
directed
onto claimant’s property Page 43
FONSO W. DOTSON AND SARAH E. DOTSON VS. DEPARTMENT OF HIGHWAYS (CC-85-382)
The Court made an award for damage to vehicle which struck
a hole on a bridge as
the respondent was negligent in failing to
properly maintain the bridge. A steel plate which had covered the hole to
protect the public was missing on the day of the
incident Page 104
REXELL C. FREEMAN AND JOYCE FREEMAN VS. DEPARTMENT OF HIGHWAYS (CC-84-244)
Claimants’ vehicle was
damaged when a steel plate that had been place over a hole on a bridge was struck by a truck and whirled into
air and spun underneath claimants vehicle damaging the same. The Court denied
the claim as claimant repaired the vehicle himself and experienced no monetary
loss as the result of the
accident Page 4
JACK AND VERA MCMILLAN VS. DEPARTMENT OF HIGHWAYS (CC-85-277)
The Court made an award for damage to
claimants’ vehicle
when the vehicle struck a hole on a bridge that went clear through the bridge.
The Court determined that a steel plate which had been covering the hole was knocked off but it was the
responsibility of the respondent to ascertain that the hole Page 64
JACK AND VERA MCMILLAN VS. DEPARTMENT OF HIGHWAYS (CC-8S-277)
The Court made an award for damage to claimants’
vehicle when the vehicle struck a hole on a bridge that went clear through the
bridge. The Court determined that a steel plate which had been covering the
hole was knocked off but it was the responsibility of the respondent to
ascertain that the hole remained covered by the
steel plate Page 64
ELMER PACK & MICE DAILEY VS.
DEPARTMENT OF HIGHWAYS (CC-84-l30)
The Court denied a claim for personal injuries to claimants when the vehicle
left the road and went into a creek as a bridge had been removed. The Court determined that the claimants failed to prove that any
negligence of the respondent
caused the accident Page
75
RAYMOND L. SMITH VS. DEPARTMENT OF HIGHWAYS (CC-85-320)
The Court made an
award for damage to claimant’s vehicle when the vehicle struck a depressed area
on a bridge caused by roto—milling. The Court that respondent was negligent in failing to warn the
travelling public of a hazardous
condition on an interstate bridge Page 82
W.Va. J REPORTS STATE COURT OF CLAIMS 153
BUILDING CONTRACTS
AMERICAN BRIDGE DIVISION OF UNITED
STATES STEEL CORPORATION, A OELA WARE CORPORATION,
AND AMERICAN BRIDGE DIVISION OF UNITED STATES STEEL CORPORATION, A CORPORATION,
ON
BEHALF OF JOHN B. CONOMOS, INC., A PENNSYLVANIA CORPORATION VS. DEPARTMENT OF
HIGHWAYS (CC—82—166)
A claim for the placement of an intermediate coat of
paint upon a bridg, was denied by the Court as the claimant’s subcontractor failed
to contact an expert about the paint system prior to bidding the job, and was
therefore not fully informed of the paint necessary to meet the specifications
and provisions of the
Contract Page 46
BANKERS POCAHONTAS COAL LIMITED PARTNERSHIP AND W. B. SWOPE,
INDIVIDUALLY VS. DEPARTMENT OF HIGHWAYS (CC-83-159)
The Court made an
award to claimant for the cost of materials used in the construction of a low water bridge which was
necessitated by the action of the respondent in posting a bridge which it was later
determined was not owned by the Department of Highways. The Court determined
that the claimant was entitled to an award Page 49
CARL N. GEUPEL CONSTRUCTION COMPANY, INC. VS. DEPARTMENT HIGHWAYS (CC-82-200)
Claimant experienced delays during construction when various slides occurred on the project and respondent was
required to redesign portions of the project. The delays resulted in damages to
the claimant which
were stipulated by the parties and
the Court made an award Page 26
HUGHES BECHTOL, INC. VS. BOARD OF REGENTS (CC-81-450)
A contract which provided an agreement to arbitrate any all claims, disputes
and other matters in question between the Contractor and the Owner was upheld
by the Court when it sustained a motion
for susamary judgement based upon an award granted to the claimant through
arbitration proceedings Page 56
MELLON-STUART COMPANY AND KIRBY ELECTRIC COMPANY VS • BOARD OF REGENTS (CC-82-l4)
The Court made awards
to claimants in the construction of a multipurpose physical education facility at Marshall University
where the Court determined that the respondent failed to fulfill its obligation
to coordinate the work of multiple
prime contractors Page 59
MELLON-STUART COMPANY AND KIRBY ELECTRIC
COMPANY VS. BOARD OF REGENTS (CC-82-14)
The Court held that th, respondent i. responsible for any negligent acts and
omissions of its architect in connection with the project f or the construction
of a multipurpose
physical education facility at Marshall University and the Court made awards to
the claimants for such acts Bag. 59
MELLON-STUART
COMPANY AND KIRBY ELECTRIC COMPANY
VS. BOARD OF REGENTS (CC-82-l4)
The Court made an award to claimants in the construction of a multipurpose
physical education facility at Marshall University where the Court determined
that the claimants are entitled to recover costs attributal to extra
work caused by concealed conditions and design defects but not in the total
amounts claimed. The Court made a determination as to the awards to
be made to the claimants.. Page 59
MELLON-STUART COMPANY AND KIRBY
ELECTRIC COMPANY VS. BOARD OF REGENTS (CC-82-l4)
In a claim for delay on a project due to failure of the respondent ownsr of the
project where utility lines were to be removed &nd these were not removed prior to the construction of the project, the Court
determined that a delay did occur for which the claimant should be reimbursed
its extra expenses Page 59
154
REPORTS STATE COURT OF CLAIMS [W.Va.
CONTRkCTB -
Bee
also Building Contracts
AMERICAN OFFICE SYSTEMS, INC. VS.
DIVISION OF VOCATIONAL REHABILITATION (CC-85-226)
An advisory opinion was
issued by the Court indicating that the respondent is legally obligated
to pay the claimant for the rent due under a
lease agreement
between
the parties Page 1
AMERICAN TELETRONICS CORPORATION VS.
DEPARTMENT OF HEALTH (CC-85-362)
The Court determined that damage to the telephone system was not the
responsibility of the respondent State agency in accordance with the terms of
the
maintenance agreement
between the parties Page
73
B-K DYNAMICS, INC. VS. TAX
DEPARTMENT (CC-86-14)
The
respondent State agency failed to pay the claimant for services rendered under
a contract but the respondent did not have sufficient fund, within its appropriation for that particular
fiscal year to pay for the services rendered. The
Court denied the claim based
upon Airkem Sales and Service. et p1. vs• Deoartment
of Mental Health, 8
Ct. ci. 180 (1971) Page
63
CODEX CORPORATION
VS. BOARD OF REGENTS (CC—85-159)
The Court determined that no breach of contract occurred where a lease
agreement between the parties was void ab initio Page 83
YEAGER, INCORPORATED AND
YEAGER FORD SALES, INC. VS. DEPARTMENT OF HtGHWAYS
(CC—84—88)
The
Court determined liability on the part of the respondent for damage to claimant’s
property. The parties had a written right of way agreement which provided for
restoration of claimant’s property, including the buildings, to as near original (pre—conetruction)
condition as possible Page
30
DIMAGEB
AMERICAN BRIDGE DIVISION OF UNITED
STATES STEEL CORPORATION, A DELAWARE CORPORATION,
AND AMERICAN BRIDGE DIVISION OF UNITED STATES STEEL CORPORATION, A CORPORATION,
ON
BEHALF OF JOHN B. CONOMOS, INC., A PENNSYLVANIA CORPORATION VS. DEPARTMENT OF
HIGHWAYS (CC-82-l66)
A claim for liquidated damages assessed the claimant were denied by the
claimant were denied by the Court as the delay was caused by claimant’s delay
in fabrication and shop painting of the structural steel, not due to actions of
the
reepondent Page
46
HUGHES-BRCHTOL,
INC. VS. BOARD OF REGENTS (CC-81-450)
The Court issued an opinion in accordance with a aettlement between the parties
for payment to the claimant for a dispute arising under a contract for
construction of the Henderson Center at Marshall University, a facility of the
respondent. The Court granted an award to the claimant. The Court determined
that the proceeds of two life insurance policies paid for by the State and one
with the Public Employees Insurance were not collateral source, as well as the
amount being right received from the disability and retirement fund. The
contribution by the decedent during his employment as a trooper constitute a
collateral source. The Court mad, an award to the claimant for shock and mental
anguish which she suffered and an award to claimant as admini.tratrix of the
estate of her deceased husband..Page 56
YEAGER, INCORPORATED AND YEAGER FORD SALES, INC. VS • DEPARTMENT OF HIGHWAYS
(CC—84—88)
The
Court did not consider an item of damage which it determined to be too
speculative to be considered and the estimate of cost was reduced by this amount in
the award made by the Court Page 33
W.Va.)
REPORTS STATE COURT OF
CLAIMS 155
DRAINS MID SEWERS
- Bee also Water and Watercourses
TERESA R. ALTOMARS AND SAMUEL
ALTOMARE VS.
DEPARTMENT OF HIGHWAYS (CC-77-lll)
The Court determined
that as there was no evidence of negligence on the
part of
the respondent which was the proximate
cause of
the accident the Court denied a claim
based upon negligence for failing to maintain a drainage ditch in proper condition and for failing to
install a guard rail between the road and the drainage
ditch Page 14
HENRY BURGER AND GERALDINE BURGER VS. DEPARTMENT OF HIGHWAYS (CC-82-181)
Where the proximate cause of property damage to claimants’
property was the excessive rainfall that occurred and water from a broken water
main which saturated the hillside and caused a slid., the Court denied the
claim.. Page 41
JIMMIE A. AND EULA R. CURRENCE AND LOREN AN RELLA
CURRENCE VS. DEPARTMENT OF HIGHWAYS.
(CC—84—ll6 &
CC-84—ll?)
The claimants sustained personal injuries
in an accident wherein a vehicle, coming in the lane opposite the claimants,
hydroplaned, came across onto claimant’s lane
and struck their
vehicle, causing an accident. The Court determined liability on the part of the respondent for the pool of water which
caused the accident as it created a hazard for the travelling public Page 28
MARY KATHRYN ESTEE VS. DEPARTMENT OF HIGHWAYS (CC-82-213)
The Court
denied a claim for
water damage to claimant’s property as the Court determined that claimant’.
property is in a natural drainage area and there was no evidence of any
negligence on the part of the respondent Page 34
THELMA L. JAMISON VS. DEPARTMENT OF HIGHWAYS
(CC-84-255)
The Court determined that respondent was liabl, in part for damage to claimant’s property due to a
blocked culvert which caused water to enter onto
claimant’s property Page 35
NINA G. JONES VS. DEPARTMENT OF HIGHWAYS (CC-83-126)
The Court made an award for personal
injuries to the claimant which occurred when ehe ran onto water on the highway,
hydroplaned on the water and her vehicle went down over a bank and struck a tree causing physical injuries and
damages to the claimant. The Court finds
respondent negligent for failure of the respondent to take satisfactory
corrective action in
the care of a culvert problem of which the
respondent had knowledge) PA9e 36
JOSEPH MULLINS AND
DORA MULLINS VS. DEPARTMENT OF
HIGHWAYS (CC-8S—209)
The Court denied a
claim for personal injuries to the claimant which occurred in an accident on a State road where the record established that respondent
was negligent in failing to maintain the drainage of water on the road but
under the doctrine of comparative negligence the negligence of the claimant in
travelling the road at night, in the rain, and known
to him to be in disrepair was equal to or greater than the negligence of the
respondent in its failure to maintain the area..Page 90
JACK D. PORTER AND JACQUELINE L. PORTER
CAUDILL VS. DEPARTMENT OF HIGHWAYS
(CC—82—305)
A claim for damage to real property from the flow of surface water was denied by the Court as no evidence was presented of the amount of monetary
damages to the
claimants’ property Page 15
JOHW H. SUTPHIN AND NANCY SUTPHIN VS.
DEPARTMENT OF HIGHWAYS (CC-84-275)
An award for damage to real estate which occurred when the
respondent failed to properly maintain ditch lines adjacent to claimants’
property was made by the Court as the surface water from the highway
prevented claimants from the full use
of their land Page 141
156
REPORTS STATE COURT OF CLPJMS CW.Va.
PI4LLING ROCKS - 8•e also Landslides
WILLIAM H. CLAY
VS. DEPARTMENT OF HIGHWAYS (CC-84-219)
Where there was no evidence that the
respondent knew or should hay, known of an unusually dangerous condition,
rocks extending from the berni onto the edge of the roadway, th. Court denied a
claim for damage to a vehicle which hit the rock elide..Page3
ARTHUR COBURN VS. DEPARTMENT OF HIGHWAYS (CC-8S-177)
The Court has held that the unexplained falling of a rock bolder onto a highway
without a positive showing that respondent knew or should have known of a
dangerous condition posing injury to person or property is insufficient to
justify an award. The Court denied a claim where the vehicle ran over a rock
which had
rolled out into the road.) Page 68
A.E. QUEEN AND
PAULINE QUEEN
VS. DEPARTMENT OF HIGHWAYS
(CC-85-151)
Rock fall claim —
lack of notice to
respondent —
claim denied.. . Page 66
LOVA H. STOUT AND N. WOOD STOUT VS. DEPARTMENT OF HIGHWAYS (CC-78-29)
A claim for physical injuries and property
damage which resulted
when
claimants vehicle collided with a large bolder which rolled Out in front of
them
was denied by the Court as the unexplained falling of a rock or bolder onto a
highway without a positive showing that respondent knew or should have known Of a
dangerous condition posing injury to person or property is insufficient to
justify
an award Page 72
UNITED STATES FIDELITY AND GUARANTY COMPANY, AS
SUBROGEE OF CHALMER HAPLESS VS. DEPARTMENT
OF HIGHWAYS (CC-84—337)
The Court denied a claim for damage to a vehicle which struck a rock in the
road where there was no proof that the State had notice of the defect in the
road..
Page9
LARRY J. WALLEN VS. DEPARTMENT OF HIGHWAYS (CC-86-12O)
A claim for damage to a vehicle which occurred when rocks fell from a cliff
along the highway was denied by the Court as the respondent had constructed
concrete barriers between the base of the cliff and the berm of the highways to
remedy the
dangerous condition of
falling rocks The Court was unable to find negligence on
the part of the respondent Page 119
INDEPENDENT CONTRACTORS
OLIVE CRADDOCK VS. DEPARTMENT OF HIGHWAYS (CC-84-286)
The Court denied a
claim for damage to a vehicle where the record established that an independent
contractor was responsible for the work on the bridge.
Page 17
SHARON NICEELS
VS. DEPARTMENT OF HIGHWAYS (CC-84-317)
The respondent, Department of Highways, cannot be held liable for the
negligence, if any, of an independent contractor. The Court denied a claim
where the claimant alleged that construction on a roadway caused her to become
involved
in an accident Page
8
INTEREST
CAPITOL BUSINESS EQUIPMENT,
INC. VS. DEPARTMENT OF PUBLIC SAFETY (CC-87-28)
Where claimant requested payment for an original invoice and interest on that
invoice, the Court made an award for the amount of the invoice but denied the
interest based upon West Virginia Code 814—2—12 Page 146
W. Va.) REPORTS
STATE COURT OF CLAIMS 157
THE LAWHEAD PRESS, INC. VS. GOVERNOR’S OFFICE OF COMMUNITY
AND INDUSTRIAL DEVELOPMENT (CC-86-149)
A claim for
interest on a printing contract was denied by the Court based upon W.Va. Cod. 414-2—12 and the fact that there was no provision for
interest in the
purchase order awarded to the claimant Pag. 137
LASDSLIDE8 - Se. also Falling Rock.
O.L. WESTFALL AND REBECCA WESTFALL VS.
DEPARTMENT OF HIGHWAYS (CC-80-144)
The Court made an award to the claimant for property damage which damage
was caused by a slide on the property. The Court
determined that respondent’s actions in
the reconstruction of the road above the property aggravated the condition already existing to precipitate the elide on the property. The Court made an
award to the claimants.
The Court in
calculating an award to be made for property damage. deducted the value of the property after the damage from the
estimated value of the property prior to the damage to the property Page 23
LEASE
R.J. CAREY COMPANY,
INC. VS. DEPARTMENT OF HEALTH (CC-84-209)
Cancellation provision of lease is sufficient to deny rent beyond the period
of cancellation Page
40
LIMITATION OP
ACTIONS
ROBERT B.
MORRISON VS. DEPARTMENT OF MOTOR VEHICLES (CC-85-206)
The Court
dismissed a claim wherein the two—year period of the statute of limitations was
applicable as the claimant failed to file for lose of wages in the
two—year period Page 87
CLETON E. MYERS VS. DEPARTMENT OF HIGHWAYS
(CC-85-52)
The Court dismissed claimant’s action for loss of tools which
were burglarized from
respondent’s dump truck as claimant failed to file the claim within the
two-year period of statute of limitations Page 94
CHARLES 0. PLANTZ VS. DEPARTMENT OF CORRECTIONS (CC-84-271 and CC-84-326)
Two claims filed by an inmate of West Virginia Penitentiary
for failure of the respondent to safeguard property acquired for the operation
of a radio and T.VS. repair shop and woodworking shop were denied by the Court
as it does not have jurisdiction over claims which are not filed within the time specified by the
applicable statute of limitations Pag. 107
HAROLD M. STUMPP VS. DEPARTMENT OF CORRECTIONS (CC-86-246)
Where the Court made an award for overtime
which claimant was required to work for the respondent, the Court applied the
statute of limitations to that period of time for which claimant claimed loss
of pay for more than two years prior to the
filing of his claim Pag. 144
NEGLIGENCE — Ses also Motor
Vehicles; Strests
and Eighways
CAPITOL BUSINESS EQUIPMENT, INC. VS. DEPARTMENT OF
FINANCE AND ADMINISTRATION
(CC—87—27)
The Court made an award for the original invoice as the respondent admitted the
amount and the validity of that obligation, but the Court denied the additional
amount of interest based upon West Virginia Code Page 145
158
REPORTS STATE COURT
OF CLAIMS [W.Va.
WALTER .7. DAVIS VS.DEPARTMENT OF HIGHWAYS (CC-85-30)
k the claimant e.tablished that the truck from which cinder. chip. of lime.tone flew
onto claimant’,
vehicle damaging
the came, was owned and operated by the re.pondent the Court i. of the opinion that it’. driver was
operating the truck negligently
under the prevailing condition, and made an award to the claimant for
damage to hi. vehicle Page 10
REXELL C. FREEMAN AND JOYCE FREEMAN VS. DEPARTMENT OF
HIGHWAYS (CC-84-244)
The Court held that the placement of an un.ecured plate on a bridge we.
negligence on the part of the respondent. However, the claimant has been
reimbursed by hi. in.urance company for the estimated repair cost, of the
vehicle and the Court
denied the claim Page 4
NINA G. JONES VS. DEPARTMENT OF HIGHWAYS (CC-83-l26)
Although the Court determined that the respondent was negligent in it. failure to correct a frequent flooding problem on a
highway the Court al.o determined that the claimant wa guilty of negligence in
her failure to keep a proper look out ahead and for operating her vehicle at a
.peed in exce.. of a
reasonable .peed under the condition. then
and there exj.ting. Therefore, the Court reduced the damages to the
claimant upon the doctrine of comparative negligence Page 36
BUFORD S. MARKER VS. DEPARTMENT OF HIGHWAYS (CC-86-l)
The Court denied a claim for damage to a vehicle when the vehicle dropped off the berm in Coonskin Park, Kanawha
County, as there was no negligence established
on the part of the respondent Page 117
NADINE.7. MATTHEW VS. DEPARTMENT OF HIGHWAYS (cc-85-172)
When claimant’s vehicle was damaged when it .truck a pothole, the Court held that although the respondent may
have been negligent, the negligence of claimant’s husband
wa. equal to or greater than that of the re.pondent a, he had notice of the
defects in the road Page 93
SANDRA MCELHSNIE •
PERSONAL
REPRESENTATIVE OF THE ESTATE OF MARVIN MCELHFNIE, DECEASED, VS. DEPARTMENT OF
HIGHWAYS (CC-85-36)
The Court denied a
claim for a wrongful death wherein claimant contended that
the re.pondent wa. negligent in failing to properly place grade ,igns
indicating a
downgrade on a State highway and the Court
determined that negligence on the part
of the respondent had not been established Page 142
HARLEY NANCE AND GENEVIEVE NANCE VS. DEPARTMENT OF
HIGHWAYS (CC-85-184)
The Court denied a
claim for damage to a vehicle on the ba.is that although the respondent may
have been negligent, the negligence of the claimant was equal to or greater
than that of the respondent. The claimant frequently travelled this route prier
to the incident and .hould have been aware of the general state of disrepair of
the bridge and taken the necessary precaution. Page 100
JOE SCARDINA VS. DEPARTMENT OF HIGHWAYS (CC-84-250)
The Court denied a claim for damage to a vehicle which occurred when claimant’,
wife pulled the vehicle off to the berm and backed the car into a growth
of weeds where the
remains of a metal light pole damaged the vehicle
There was no
negligence on the part of the respondent Page
20
JERRY ALLEN TACKETT VS. DEPARTMENT OF HIGHWAYS (CC-86-86)
The Court denied a claim for damage to a vehicle which struck a pothole as the
negligence of the claimant we. equal to or greater than that of the respondent..
Page 118
EUGENE 0. WORKMAN VS. DEPARTMENT OF HIGHWAYS (CC-85-154)
An employee of the
respondent had his glasce. broken when he clipped and fell on a truck while preparing to go out on .now removal work. The Court denied the
claim for loss of the eyeglasse. as there Wa. no evidence that the respondent
we.
negligent Page 130
W.Va.]
REPORTS STATE COURT OF CLAIMS 159
NOTICE
CHARLES EDWARD ALLEN VS. DEPARTMENT OP HIGHWAYS (CC-85-32)
Pothole claim — lack of notice Page 2
DELILAH LYNN CHAPMAN VS. DEPARTMENT 0? HIGHWAYS (CC-85-310)
A claim for personal injurie, and medical expense, was
denied by the Court as the evidence revealed that the respondent performed maintenance on the
section of road where the incident occurred and the respondent lacked notice of
this particular hole which required maintenance at the time of this incident Page 103
KAREN COLEMAN VS. DEPARTMENT OF HIGHWAYS (CC-86-94)
The Court denied a claim for damage to a vehicle as the claimant failed to
prove notice, either actual or constructive, of the defect in question.. Page 125
LARRY PARLEY AND LINDA PARLEY VS. DEPARTMENT OF HIGHWAYS (CC-85-271)
Lack of notice claim Page
92
KENNETH S. PRANK VS. DEPARTMENT OF HIGHWAYS (CC-85-198)
A claim was denied for damages to a vehicle where the
claimant failed to prove actual or constructive notice on the part of the
respondent State agency.Page 126
ROBERT KEVIN GILLISPIE AND CAROLYN KAY
GILLISPIE VS. DEPARTMENT OF HIGHWAYS
(CC—86—14)
The size of a pothole
is indicative of its presence in a highway and the Court will apply constructive
notice of the defect in the highway. The Court made an award to claimants who
sustained damages as the result of striking a large hole in
a State road Page 148
STEVEN D. GOOD VS. DEPARTMENT OF
HIGHWAYS (CC-84-283)
Pothole claim —
Lack of notice on the
part of the respondent Page
5
RETTIE LOUISE HAMON VS.
DEPARTMENT OF HIGHWAYS (CC-86-3l)
Where the size of the pothole in the road was indicative that it had been in existence for a substantial period of time prior to the date of the incident,
the Court made an award for the damages to
the vehicl, which struck the hole.Page 127
DELTA W. HARRAH AND EVA KAY HARRAII VS. DEPARTMENT OF HIGHWAYS (CC-86-85)
The Court denied a
claim for damage to a vehicle which struck a hole in the
road where the respondent did not have proof of notice, either
actual or
constructive, of the defect Page 128
DUBOIS JORDAN VS. DEPARTMENT OF HIGHWAYS (CC—86-67)
Claimant was made an award for damage to his vehicle which struck a pothole.
The Court determined that the size of the pothole was indicative of the fact
that it could not have developed overnight and, therefore, was a hazard to the
travelling
public Page 129
PAULINE R. KAPLAN AND ALLEN KAPLAN VS. DEPARTMENT OF HIGHWAYS (CC-84-339)
Pothole claim —
Lack of real or constructive notice on the
part of the
respondent Page
6
MINE SAFETY APPLIANCES COMPANY VS. DEPARTMENT OF HIGHWAYS (CC-85-19l)
Lack of notice on the
part of the respondent claim denied Page 65
KENNETH AND JANET MOUNTS
VS. DEPARTMENT OF HIGHWAYS (CC8540)
Pothole claim —
Lack of actual or
constructive notice on the part of the
respondent Page 7
160
REPORTS STATE COURT OF CLAIMS [
JOYCE PRIDDY VS. DEPARTMENT OF HIGHWAYS (CC-86-19)
The Court made an
award for damage to a vehicle which struck a pothole where the Court determined that the
pothole was of sufficient size that the respondent should have discovered and
repaired the defect Page
133
RONALD 0. PRITT
END PEGGY J. PRITT VS. DEPARTMENT OF HIGHWAYS (CC-85-76)
Pothole claim —
Lack of actual or
constructive notice of the defect in
the road Page 8
TRUDY PROTZMAR VS. DEPARTMENT OF HIGHWAYS (CC-85-376)
Actual or con.tructive notice cage Page 108
ROBERT V. RECTENWALD END JEANNE 5. RECTENWALD VS. DEPARTMENT OF HIGHWAYS
(CC—85—230)
Lack of notice to the
reepondent -
claim denied Page 67
BRADY C. SINGLETON VS. DEPARTMENT OF
HIGHWAYS (CC-86-25)
Wher. no evidence was
presented to chow
that the respondent had actual or constructive notice of the existenCe of the hole etruck by claimants vehicle and that the road where the incident occurred is a
State maintained highway, the Court
muet deny the claim Page
135
FRANK SPENCE AND MARGARET E. SPENCE VS. DEPARTMENT OF HIGHWAYS (CC-85-224)
Lack of notice on part
of respondent —
claim denied Page 71
R. MIKE VERES VS. DEPARTMENT OF HIGHWAYS (CC-85-80)
A claim for damage to a boat trailer was denied by the Court as no evidence
of actual or constructive notice of the hazard which caueed the damage wag
established Page 13
OFFICE EQUIPMENT MW SUPPLIES
JOE L. SMITH, JR., INC., D/B/A RIGGS-JOHNSTON- WITHROW VS.
DEPARTMENT OF EMPLOYMENT SECURITY (CC—85-377)
Claimant printing company printed
forms for the respondent which were rejected.
The respondent returned only a portion of the forms to the claimant for which the Claimant received credit
from its subcontractor. The Court made an award to the claimant for the
defective forms as the respondent used the forms. However, the Court reduced the amount
claimed by 10 percent as the forms were
defective.
Page 45
PEDESTRIMiS
SHELBY B. MELVIN
VS. BOARD OF REGENTS (cC-82-308)
The doctrine of comparative
negligence wag applied where the Court determined that respondent failed to maintain the sidewalk in a
proper manner and that the claimant herself was negligent in failing to
maintain an ad.quate outlook on the
sidewalk where she was walking Page 86
HOWARD A. SNYDER
VS. DEPARTMENT OF HIGHWAYS (cC-80-35l)
The principle that the State is neither an
insurer nor a guarantor of the saf sty of travellers on its highways has been
extended to pedestrians. The Court has hold that where a person has travelled across an area and
then been insured upon returning, failure to exercise rea.onable care and to
maintain proper lookout was the proximate
caus, of the injury. This principle was applied in a claim where the claimant fell on steps in a roadside park Page 58
CONSTANCE J. TILLEY VS. DEPARTMENT OF
HIGHWAYS (CC-85-246)
A claim for personal in)uries to the claimant which occurred when she stepped between two boards of a walkway at the New River Gorge overlook was denied by the Court as the claimant was
negligent when she failed to look at the boardwalk where
she was walking Page
109
PRISONS AND PRISONERS
FARMERS & MECHANICS MUTUAL
FIRE INSURANCE COMPANY OF V • VA
•
AND MUTUAL PROTECTIVE
ASSOCIATION OF V. VA. VS • DEPARTMENT
OF HUMAN SERVICES AND DEPARTMENT
OF CORRECTIONS
(CC—79—30)
Where claimant alleged that the respondents negligently and recklessly placed
an individual into an institution which did not have the proper facilities to
prevent escape and the individual did escape, the Court denied the claim as the
record in the claim does not substantiate the allegation of knowledge on the
part of the personnel in charge of the institution Page 111
CONSTANCE KZSNER, INDIVIDUALLY AND CONSTANCE KESNER, AS ADMINISTRATRIX OF
THE ESTATE OF PuLP S. KESNER, DECEASED VS.
DEPARTMENT OF CORRECTIONS (CC-81-188)
The Court made an award to the claimant individually and to the claimant as
administratrix of her husband’, estate where the respondent conceded liability
and acknowledged that there probably would not have been death and injuries had
there not been negligence on the part of at least two correction officer. when
an escape was made by inmates at the West Virginia Penitentiary in Moundeville,
Weet
Virginia Page 54
LAWRENCE D. JENKINS VS. DEPARTMENT OF CORRECTIONS (CC-84-l92)
The Court denied a claim for damage to a vehicle which occurred when two
escapees from the West Virginia Industrial Home for Youth stole claimants
unlocked vehicle which contained the keys to the car as the Court determined
that no evidence had
been presented to
show that the respondent acted in a negligent manner.
Page
11
PUBLIC EMPLOYEES
JAMES A.
COGHLIN, JR. AND
Annual leave time for provisional employees must be taken during the period of time in
which the employee is employed. The Court denied several claims for annual
leave time for provisional employees based upon the Civil Service Rules and
Regulations Page 99
JEFFREY ALAN
RICHARD VS. DEPARTMENT OF EDUCATION (CC-87-37)
The Court made an award to claimant
for salary
compensation due him under an Order by the West Virginia Education Employees
Grievance Board which directed payment by the respondent. Respondent was unable
to pay claimant as this was
considered a retroactive salary increase Page 147
HAROLD M. STUHPP VS. DEPARTMENT OF CORRECTIONS (CC-86-246)
While employed as a correctional officer, claimant was required to report ten
minutes before each shift that he worked. A grievance with the Civil Service
Coamiisaion determined that claimant wa, entitled to overtime pay The Court
made
an award for overtime to which he was entitled Page 144
TOOLEY ET AL. VS. DEPARTMENT OF
HIGHWAYS (CC-85-139)
These are provisional employee claims wherein annual leave time was denied the
provisional employees and the Court upheld the Civil Service Rules and
Regulations.. Page 110
RELEASES
TAMMY JO HALL ARTHUR VS. DEPARTMENT OF HIGHWAYS (CC-79-568)
A general release signed by the claimant in a prior case is sufficient to
release respondent Page
16
EUGENE R. EDWARDS, JR. AND MARTHA
E. EDWARDS VS • DEPARTMENT OF HIGHWAYS (CC—80—298)
A general release executed by the claimants is sufficient to
release
respondent Page 18
162
REPORTS STATE COURT OF CLAIMS [W.Va.
STATE AGENCIES
MARY ELIZABETH BINDER VS. DEPARTMENT OF
EDUCATION (CC-86-295)
The Court denied a claim for reimbursement of tuition for
the cost of renewing a teaching certificat. where the r.spondent did not have
cuff icient funds within the proper fiscal year to pay such reimbursement Page 114
BRENT BOGGS VS. DEPARTMENT OF CORRECTIONS (CC-85-343)
Where the claimant
proved through various record, presented that he we. entitled to overtime
compensation in accordance with Civil Service regulations, the Court made an
award for the overtime Page
102
NAOMI A. CLARK VS. DEPARTMENT OF COMMERCE (CC-85-290)
Claimant alleged that respondent was negligent in its maintenance of the state
park. Claimant’s vehicle was vandalized when she and a companion camped overnight at the park. The court denied the claim as there was no
evidence of negligence on
the part of the respondent Page 74
ARTHUR L. CORNETTE, JR. VS. DEPARTMENT OF HIGHWAYS (CC-85-367)
The Court denied a claim for damage to a vehicle which occurred when the vehicle
slid on ice in a parking structure in
The Court denied a claim for loss of
equipment rented by the respondent in accordance with the term, of the agreement as there was no
evidence of any negligence or willful misconduct on the part of the respondent
in the losePag. 43
HERMAN F •
LAWHORN VS.
DEPARTMENT OF VETERANS
AFFAIRS (CC-B 5-389)
The Court denied a claim for repayment of an overpayment of benefits to the claimant as the Court held
that the claimant received a benefit sum to which he was
not entitled Page 39
THEODORE D. MOORE, III VS. SUPREME COURT (CC-84-242)
The Court denied a claim for the payment of witness fees and mileage coats
incurred by the claimant as the Court of Claims does not have jurisdiction over
the
matter in question Page
11
GAIL PHILLIPS VS. DEPARTMENT OF PUBLIC SAFETY (CC-85-l29)
A claim for damages to claimant’s mobile home which was rented to another
individual was awarded by the Court when member, of the Department of Public
Safety damaged the mobile home with canisters of tear gas in an attempt to
apprehend
another individual Page
39
VICTOR SOLOMON VS. DEPARTMENT OF HEALTH (D-736)
A claim for damages incident to the refusal of respondent to grant claimant a
permit for a landfill in Monongalia County wa, denied by the Court as the
claimant did not prove discrimination by a preponderance of the evidence Page 21
TRI-CITY WELDING SUPPLY COMPANY VS. DEPARTMENT OF CORRECTIONS (CC-84-335)
A claim for cylinders loaned to
the missing cylinders Peg. 12
DOROTHY WORRELL, SERVING AS NEXT FRIEND FOR JOHN WORRELL, HER NATURAL SON
VS. DEPARTMENT OF HEALTH (CC-85-49)
The document which claimant signed upon hi, confinement at Lakin State Hospital
absolving the respondent facility of liability for his personal belongings, was
upheld by the Court to deny the claim for personal articles which were missing
at the institution Page
25
STREETS
MID HIGHWAYS - 8e. also Palling Rocks; Landslide; Notor Vehicle.; Negligence
AETNA CASUALTY & SURETY, AS
SUBROOEE OF ROBERT W. DAVIS, AND ROBERT 11.
The Court made an award for damages to claimant’s insured vehicle where the Court determined
that the respondent was negligent in failing to properly maintain a
construction area where a ditch had been dug across the road Page 92
JAMES V. BASHAM, JR. VS. DEPARTMENT OF HIGHWAYS (CC-84-59)
The Court denied a claim for damage to a vehicle which occurred when the
claimant encountered ice and his vehicle flipped and skidded. Before the respondent may
be held liable, there must be evidence that the respondent knew or should have known of the existence of ice on the highway Page 113
J. V. BAUER VS. DEPARTMENT OF HIGHWAYS (CC-85-358)
The Court denied a claim for damage to a vehicle which occurred when claimant
was proceeding in the wrong lane of traffic and struck the curb of the median.
The accident was not caused by negligence on the part of respondent Page 97
JAY L. BOLYARD VS. DEPARTMENT OF HIGHWAYS (CC-86-l95)
Where the size of a pothole in the road is indicative of its presence for a
eubstantial period of time prior to the date of the
incident, the Court will make an award to the claimant for the damages
sustained by claimant’s vehicle.Page 121
PHIL CALISE VS. DEPARTMENT OF HIGHWAYS (CC-85—28)
Claimant sustained personal injury and
property damage to his bicycle
when he failed to see a sewer grate on the highway
and the bicycle wheel dropped into the grate
causing the claimant
to fall. The Court denied the claim as it
could determine no
negligence on the part of the respondent Page 2
WILLIAM S. CARR VS. DEPARTMENT OF HIGHWAYS (CC-86-41)
Where no evidence was introduced at the hearing to establish knowledge en the
part of the respondent on the condition of a metal expansion joint which
claimant’s vehicle struck, the Court will deny the claim Page 122
VONLEY COLE, ADMINISTRATOR OF THE
ESTATE OF RAREN RENEE
COLE VS. DEPARTMENT OF HIGHWAYS (CC-82-292)
The Court denied a claim for claimant’s decedent where the allegation was that
the respondent failed to maintain the berm of the highway in a reasonably safe
condition. The Court could not conclude that claimant’s decedent was forced
onto the berm or otherwise necessarily used it.
The claim was denied Page
51
WILLIAM K •
CUNNINGHAM AND
TRESEA J • CUNNINGHAM VS • DEPARTMENT OF HIGHWAYS (CC—86—113)
The Court denied a claim for damage to a vehicle which claimant alleged occurred when aggregate being placed on the road struck his windshield.
There was nothing in the record to show that respondent had notice of a
dangerous condition
on the highway Page
114
HELEN HERRON
VS. DEPARTMENT OF HIGHWAYS (CC-85-165)
The Court denied a claim for personal injury which occurred when claimant’s
vehicle dropped of f the paved portion of the road into the ditchline, claimant
then bet control of the vehicle which landed against a porch of a nearby
residence. The Court was unable to
determine negligence on the part of the respondent in the
maintenance of the
road or the berm Page
115
KNOTTS, GIANFRANCESCO, & MAYS VS. DEPARTMENT OF HIGHWAYS (CC-8l-358a-c)
Where claimants failed to establish that respondent was under a duty to erect a warning
sign or maintain a guardrail at the accident scene, the Court denied the claim.
Generally, the posting of road markers and the erection of guardrails is
discretionary Page 77
164
REPORTS STATE COURT OF CLAIMS [
FRIEDA LEOGETT AND WILLIAM LEOGETT VS. DEPARTMENT OF HIGHWAYS (CC-82-223)
Claimant alleged that barrels and warning signs placed on an interstate to
indicat. construction were negligently place and caused claimant to have an
accident. The Court determined that the barrels and warning signs were
place in accordance with respondent’s regulations and denied the claim Page 69
The Court mad, an award to the claimant for damage to a vehicle which occurred
when it struck a larg. pothole. The Court held that the respondent owes a duty
of reasonable care and diligence in th. maintenance of the highway, and the
respondent had constructiv, notice of this defect in the road Pag. 136
SANDRA MCELHENIE, PERSONAL REPRESENTATIVE OF THE ESTATE
OF MARVIN MCELHENIE, DECEASED, VS. DEPARTMENT OF HIGHWAYS (CC-85-36)
Where the record in the claim revealed that claimant’s decedent was unfamiliar
with the section of highway on which the accident occurred and decedent lost
control of his vehicle on a down—grad., the Court denied the claim as an award
would require speculation on the part of the Court as to the cause of the
accident.. Page 142
TOMMY C. MILLER VS. DEPARTMENT OF HIGHWAYS (CC-85-12)
Th. court made an award for damages to a vehicle which occurred when the
vehicle struck a pothole as the
size of the pothole is indicative of its presence for a substantial period of
tine prior to the date of the incident,
thus establishing constructive notice of the defect Page 20
JOHN I. MOORE AND CHARLENE MOORE VS. DEPARTMENT OF HIGHWAYS (CC-85-l53)
The claimant struck a large hole in an interstate and
claimed damaged to her vehicle. The Court denied the claim as the evidence in
the record indicated that the dangerous condition appeared suddenly and that
the respondent moved promptly to take safety precautions as soon as it became aware of the problem.. . . Page 70
KAREN S. MURRAY AND DANIEL J. MURRAY VS. DEPARTMENT OF HIGHWAYS (CC-85-18l)
The Court denied a claim for damage to a vehicle which occurred when the
vehicle slid on mud in the roadway. The Court determined that the claimant had
observed respondent’s crew working and was aware of the presence of mud on the
road. Page 131
DEBORAH D. PADGETT VS. DEPARTMENT OF HIGHWAYS (CC-86-63)
Damage to a vehicle which occurred when a loose grate flipped up against the
vehicle was denied by the Court as the record reflects no notice being given
respondent of the condition of the grate prior to claimant’s incident.. Page 136
DORSEL D. PARSONS VS. DEPARTMENT OF
HIGHWAYS (CC-82-l4l)
Claimant alleged that he lost control of his vehicle and went of f the berm
over an embanlanent. The reason for the loss of control was that a vehicle was
coming at him with its bright lights on. Claimant alleged that respondent was
negligent for failing to maintain the berm in proper condition and failing to
install a guard rail. The Court denied the claim as there was no evidence of
negligence on the part of the respondent Page 65
ROYAL RESOURCES CORPORATION VS. DEPARTMENT OF HIGHWAYS (CC—86-23)
Where the Court was unable to
discern from the testimony presented who maintained the drain at the location of the accident, the
Court was unable to grant
an award Page 134
RICHARD SAUNDERS, DIR/A
RICK’S USED CARS VS. DEPARTMENT OF HIGHWAYS (CC-85-33l)
The Court denied a claim wherein
the claimant alleged that his property was no longer usable due to a ditch line
placed by the respondent. The Court determined that the ditch line was
necessary to remedy drainage and the claimant made no effort to submit proposals so that a
mutual agreeable solution could be found to provide
access to his property Page
132
U.
DOMINIC
& NARY L. STAFFILENO VS. DEPARTMENT OF HIGHWAYS (CC-83-212)
A claim for personal, injury and property
damages which occurred when claimants’ vehicle slid in gravel on the highway was
denied by the Court as the quantity of debris on the highway
from the ditch—cleaning operation does not appear to have been excessive nor such as to have imposed a duty
upon the respondent to
warn motorists of its presence Page 88
DENISE W. SUTTON AND LINDA A. SUTTON VS. DEPARTMENT OF HIGHWAYS (cC-85-268)
The Court denied a claim for damage to a vehicle where the evidence in the record indicated
that the defective condition on the
interstate appeared suddenly and that
respondent promptly moved to repair the defect as soon as it became award
of the problem Page 95
THOMAS
TREADWAY VS. DEPARTMENT OF HIGHWAYS (cc-aG-il)
A claim for damage to
a vehicle which occurred when the vehicle struck a piece of ice and went into a
ditch was denied by the Court even though the claimant made a complaint to the
respondent. The complaint was made on a day other than the day of the incident
and the road conditions were different on this particular day. Pags 101
TAXATION
RONALD L. HUNT VS. DEPARTMENT OF MOTOR
VEHICLES (CC-86-398)
The Court made an award for overpayment of the
Privilege Tax in registering a vehicle
where the error wa. on the part of the respondent State agency.Page 138
SUSAN MANN VS. DEPARTMENT OF HUMAN SERVICES (cc-86-36)
The Court denied a claim for failure of the Department of Human Services to process an entitlement to an income tax refund from claimant’s ax—husband as there was insufficient proof that such
refund was to be paid to the ex—husband. Page 96
TREES AND TIMBER
FARMERS INSURANCE GROUP COMPANY, AS
SUBROGEE OF MARGARET GERRITSEN AND ADRIAN GERRITSEN VS. DEPARTMENT OF HIGHWAYS (CC-85-2l6)
The Court denied a
claim for damage to a vehicle from a tree limb which fell Onto the vehicle as
the Court determined that the accident was not the result of any negligence on the part of the
respondent but was due to a storm Pag. 85
DONNIS LEE MCIE AND BETTY .7. JEFFRIES, ADMIN. OF THE ESTATE OF EARL WILLIAM .7EFFRIES, DEC. VS. DEPARTMENT OF HIGHWAYS (CC-82-159a&b)
The Court denied a claim for wrongful death and a claim for personal injuries
due to an accident in which a tree fell upon claimant’s vehicle as the Court
determined that the tree was not cloce enough to respondent’s right of way so
as to pose a hazard which should have been apparent to the respondent Page 79
TRESPASS
LEO DUNN AND EDITH DUNN
VS. DEPARTMENT OF HIGHWAYS (CC-82-257)
The Court denied a
claim for damage to a fence along claimants’ property which was removed by respondent’s
employees pureuant to a Notice of Removal of an Obstruction issued by the
respondent. The record did not establish that
respondent
was guilty of trespassing Page 105
166
REPORTS STATE COURT OF CLAIMS [
W.VA. UNIVERSITY - See Board of Regents
ANDREW
CHIMEZIE 114501 VS. BOARD OF REGENTS (CC-85-6)
A claim by a student
reeid.nt at
on the part of the University Page 5
RAREY LYNN WELLS VS. BOARD OF REGENTS (CC-85-253)
A claim for los, of property from a dormitory was denied as the Court lacks urisdiction in a proceeding which may be maintained against the State in the courts of the
State. The State agency has insurance coverage for such an incideBgs 139
PETER
The Court made an award for loss of property which occurred due to a power
surge in a dormitory of the respondent as the responsibility of the electrical
system i. that of the respondent Page 140