STATE OF WEST VIRGINIA
Report of the Court of Claims 1999-2001
Volume 23
STATE OF WEST
VIRGINIA REPORT OF THE COURT OF CLAIMS
For the Period
from July 1, 1999 to June 30, 2001
By
CHERYLE M. HALL
Clerk
Volume XXIII
(Published by authority W.Va. Code § 14-2-25)
II PERSONNEL
OF THE STATE COURT OF CLAIMS [W.Va.
Personnel of the State Court of Claims
Honorable Robert M. Steptoe Presiding Judge
Honorable David M. Baker Judge
Honorable Benjamin Hays Webb Judge
Cheryle M. Hall Clerk
Darrell V. McGraw, Jr Attorney General
Former Judges
Honorable Julius W. Singleton, Jr July 1, 1967 to
July 31, 1968
Honorable A. W. Petroplus August 1, 1968 to
June 30, 1974
Honorable Henry Lakin Ducker July 1, 1967 to
October 31, 1975
Honorable W. Lyle Jones July 1,1974 to
June 30, 1976
Honorable John B. Garden July 1,1974 to
December 31, 1982
Honorable Daniel A. Ruley, Jr July 1, 1976 to
February 28, 1983
W.Va.J
PERSONNEL OF THE STATE COURT OF CLAIMS III
Former Judges
Honorable George S. Wallace, Jr February 2, 1976 to
June30, 1989
Honorable James C. Lyons February 17, 1983 to
June 30, 1985
Honorable William W. Gracey May 19, 1983 to
December 23, 1989
Honorable David G. Hanlon August 18, 1986 to
December 31, 1992
IV LETTER OF
TRANSMITTAL [W.Va.
Letter of Transmittal
To His Excellency
The Honorable Robert E. Wise, 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 Court of Claims for the
period from July one, one thousand nine hundred ninety-nine to June thirty, two
thousand one.
Respectfully Submitted,
Cheryle M. Hall,
Clerk
W.Va.1 TERMS OF
COURT V
Terms of Court
Two regular terms of court are provided for annually the second Monday of April
and September.
TABLE OF CONTENTS
OPINIONS COURT OF CLAIMS .
VII
REFERENCES COURT OF CLAIMS 334
OPINIONS CRIME VICTIMS COMPENSATION FUND 380
REFERENCES CRIME VICTIMS COMPENSATION FUND 402
OPINIONS
Court of Claims
W.Va.J TABLE OF
CASES REPORTED 1
TABLE OF CASES REPORTED
A & B SALES, INC. VS. DIVISION OF MOTOR VEHICLES (CC-99-104) ... 47
ADKINS, CINDY VS. DIVISION OF HIGHWAYS (CC-98-95)
16
ADKINS, SHANNON VS. DIVISION OF HIGHWAYS (CC-98-368) 122
ADK1NS, WILLIAM VS. DIVISION OF CORRECTIONS (CC-00-121) 307 ALLTEL CORPORATION
VS. DEPARTMENT OF NATURAL
RESOURCES (CC-01-053) 308
ALVARADO, BRENDA VS. DIVISION OF HIGHWAYS (CC-98-73) 123 ASH, WENDELL K. VS.
DIVISION OF CORRECTIONS (CC-00-199 &
CC-00-238) 231
AT&T CORPORATION VS. DIVISION OF HIGHWAYS (CC-98-129) 118
ATTORNEY GENERAL VS. DIVISION OF CORRECTIONS (CC-00-487) . 306
BAKER, KENNETH L. VS. DIVISION OF HIGHWAYS (CC-99-346) 212
BALL, DON K. VS. DIVISION OF HIGHWAYS (CC-99-320) 213 BALLENGEE, SHERENE N. VS.
BOARD OF TRUSTEES OF THE
UNIVERSITY SYSTEM OF WV (CC-99-395) 119
BANIAK, JOSEPH 3. & MARY V. BANIAK VS. DIVISION OF HIGHWAYS
(CC-96-419) 49
BATRA CARDIOLOGY ASSOCIATES, INC. VS. DIVISION OF JUVENILE
SERVICES (CC-99-155) 9
BAILEY, JOHN ALLEN VS. DIVISION OF HIGHWAYS (CC-99-1 19) 18
BAILEY, RONALD E. VS. DIVISION OF HIGHWAYS (CC-98-146) 19
BARBOUR COUNTY COMMISSION VS. DIVISION OF CORRECTIONS
2 TABLE OF CASES
REPORTED W.Va.]
(CC-99-202) 8
BEAN, LINDA D. VS. DIVISION OF HIGHWAYS (CC-00-151) 242
BENNINGER, DONALD L. AND CAROL M. BENNINGER VS. DIVISION
OF HIGHWAYS (CC-99..400) 242
BECKLEY NEWSPAPERS VS. PUBLIC SERVICE
COMMISSION
(CC-00-83) 162
BELL ATLANTIC-WEST VIRGINIA, INC. VS. EDUCATION AND STATE
EMPLOYEES GRIEVANCE BOARD (CC-00-162) 159
BELL ATLANTIC -
WEST VIRGINIA, INC. VS. ADJUTANT GENERAL
(CC-99-191) 1
BILL LEWIS MOTORS, INC. VS. DIVISION OF LABOR (CC-00-197) .... 221 BLUEFIELD REGIONAL MEDICAL CENTER VS. DIVISION OF
JUVENILE
SERVICES (CC-99-308) 20
BOOKER, ROBERT C. VS. DIVISION OF HIGHWAYS (CC-98-263) 50
BOYLES, CLYDE W. VS. DIVISION OF HIGHWAYS (CC-98-170) 51
BRATTON, ROBERT L. VS. DIVISION OF HIGHWAYS (CC-98-169) 52
BURKET, 3.
CHRISTOPHER VS. DIVISION OF MOTOR
VEHICLES
(CC-99-282) 53
BOROWSKI, JANET J. VS. WV SOLID WASTE MANAGEMENT BOARD
(CC-O0-300) 234
BOTT, DAVID W. VS. DIVISION OF HIGHWAYS (CC-99-471) 243
BOWERS, III, ROBERT VS. DIVISION OF CORRECTIONS (CC-00-270) .. 234
BRADSHAW, ,JO ANN, INDIVIDUALLY, AND JO ANN BRADSHAW, AS ADMINISTRATRIX OF THE
ESTATE OF BERNARD
BRADSHAW, JR.VS. DIVISION OF HIGHWAYS (CC-99-63) .... 170
W.Va.] TABLE OF
CASES REPORTED 3
BRAITHWAITE, STEVEN L. VS. DIVISION OF HIGHWAYS (CC-99-435). 173
BRAGG, LARRY T. VS. DIVISION OF HIGHWAYS (CC-97-3 11) 1
BROOKS, VINCENT W. AND JOHNNA BROOKS VS. DIVISION OF
HIGHWAYS (CC-00- 143) 271
BROWN, RONALD VS. DIVISION OF HIGHWAYS (CC-99-325b) 125 BROWNING FERRIS
iNDUSTRIES VS. DIVISION OF CORRECTIONS
(CC-99-364) 112
BURGE, DAVID W. VS. DIVISION OF HIGHWAYS (CC-98-308) 127 BURKIEVICZ, CHARLES
VS. DIVISION OF HIGHWAYS (CC-99-284) .... 38
CABELL COUNTY COMMISSION VS. SUPREME COURT OF APPEALS
(CC-99-476) 120
CABELL COUNTY COMMISSION VS. DIVISION OF CORRECTIONS
(CC-00-335) 224
CAMC DENTAL CENTER VS. DIVISION OF JUVENILE SERVICES
(CC-99-374) 67
CAMDEN CLARK MEMORIAL HOSPITAL VS. DIVISION OF JUVENILE
SERVICES (CC-99-232) 21
CAMERON GAS COMPANY VS DEPARTMENT OF ADMINISTRATION,
PURCHASING DIVISION (CC-99-363 & CC-99-377) 230
CARR, THOMAS J. VS. DIVISION OF HIGHWAYS (CC-00-167) 244
COPLEY, TIMOTHY VS. DIVISION OF HIGHWAYS (CC-99-164) 196
CHARLESTON AREA MEDICAL CENTER, INC. VS. DIVISION OF
CORRECTIONS (CC-99-265) 116
CHARLESTON DEPARTMENT STORE VS. PUBLIC SERVICE
COMMISSION (CC-99-373) 39
4 TABLE OF CASES
REPORTED W.Va.j
CLUTTER, TREVA VS. DIVISION OF HIGHWAYS (CC-98-157) 22
COLLINS ,
ALFRED E. and NANCY C. COLLINS VS.
DIVISION OF
HIGHWAYS (CC-98-290) 309
COMBS, RALPH S. COMBS AND NORMA L. VS. DIVISION OF
HIGHWAYS (CC-99-402) 175
COMPUTER ASSOCIATES INTERNATIONAL, INC. VS. DEPARTMENT
OF TAX AND REVENUE (CC-00-033) 129
COPEN, LEWIS M. AND GATHALEE GALE COPEN VS. DIVISION OF
HIGHWAYS (CC-O0-209) 272
CORRECTIONAL FOODSERVICE MANAGEMENT VS.
DIVISION OF
CORRECTIONS (CC-99-69) 112
CORRECTIONAL MEDICAL SERVICES, INC. VS. DIVISION OF
CORRECTIONS (CC-99-504) 120
CORRECTIONAL MEDICAL SERVICES, INC. VS. DIVISION OF
CORRECTIONS (CC-00-474) 268
CORY, ERIC VS. DIVISION OF HIGHWAYS (CC-98-62) 225
CROUSE ,
NORMAN AND LILLIE MAE CROUSE VS. DIVISION
OF
HIGHWAYS (CC-00-56) 274
CUNNINGHAM, ROY J. VS. DIVISION OF CORRECTIONS (CC-98-239)... 68
CURREY, DONNA L. VS. DEPARTMENT OF EDUCATION (CC.00-355).. 267
DAFF, ROGER L. VS. DIVISION OF MOTOR VEHICLES (CC-00-201) . . 236
DANKA VS. ADJUTANT GENERAL (CC-00-.032) 131
DAVIS MEMORIAL HOSPITAL VS. DIVISION OF CORRECTIONS
(CC-99-486) 116
DEAN, ROBERT VS. DIVISION OF HIGHWAYS (CC-00-21 1) 245
DEER, GEORGE A. VS. DIVISION OF HIGHWAYS (CC-97-358) 2
W.Va.J TABLE OF
CASES REPORTED 5
DICKINSON FUEL COMPANY, INC. VS. ALCOHOL BEVERAGE
CONTROL ADMINISTRATION (CC-99-415) 113
DIVISION OF ENVIRONMENTAL PROTECTION VS. DIVISION OF
CORRECTIONS (CC-O1-178) 332
DONATO, FRED L. VS. DIVISION OF HIGHWAYS (CC-98-335) 69
DOTSON, WILLIE LEE, AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF TRESA MYRETTA DOTSON, FOR AND ON
BEHALF OF THE SAID ESTATE AND THE SURVIVORS
THEREOF, AND WILLIE LEE DOTSON, AS GUARDIAN,
NATURAL PARENT AND NEXT FRIEND OF AUSTIN RYAN
DOTSON, AN INFANT VS. DIVISION OF HIGHWAYS
(CC-97-388) 36
DUNCAN, LINDA K. DUNCAN AND RICHARD L. VS. DIVISION OF
HIGHWAYS (CC-97-374) 3
EASTER, SR., RICHARD E. AND DEBRA SUE EASTER VS. DIVISION OF
HIGHWAYS (CC-95-334) 6
EDENS, CCR, PHYLLIS HAYNES VS. BOARD OF BARBERS AND
COSMETOLOGISTS (CC-99-359) 39
EDENS, JOHN A. VS. DIVISION OF CORRECTIONS (CC-OO-204) 221
ELSEA, DEBRA ANN VS. DIVISION OF HIGHWAYS (CC-99-33 I) 176
EMP OF OHIO COUNTY VS. DIVISION OF JUVENILE SERVICES
(CC-993O3) 23
EXECUTRIX, BEIJLAH BURKHAMMER, AS OF THE ESTATE OF OKEY
LOWTHER VS. DIVISION OF HIGHWAYS (CC-95-307) 55
FAULKNER, PHILLIP AND DANIELA FAULKNER VS. DIVISION OF
HIGHWAYS (CC-99-1 11) 275
FERGUSON BROTHERS PLUMBING AND HEATING COMPANY VS.
DIVISION OF CORRECTIONS (CC-OO-467) 268
6 TABLE OF CASES
REPORTED W.Va.]
FERNANDEZ, SARAH VS. DIVISION OF HIGHWAYS (CC-96-505) 178 FORESTER,
JOANN AND RICHARD C. FORESTER VS. DIVISION OF
HIGHWAYS (CC-O0-287) 246
FOSTER, JOSEPH S. VS. DIVISION OF HIGHWAYS (CC-99-194) 248
FOSTER, LINDA L. VS. DIVISION OF HIGHWAYS (CC-98-120) 24
FREYMAN, SR., MICHAEL VS. DIVISION OF HIGHWAYS (CC-99-249)., 179
GALLOWAY, VIRGINIA VS. DIVISION OF HIGHWAYS (CC-98-211) 25 GANNON,
RICHARD 3. GANNON, SR., & MARY ELLEN VS. DIVISION
OF HIGHWAYS (CC-98-312) 71
GARDNER, JR., THOMAS E. VS. DIVISION OF CORRECTIONS
(CC99-291) 73
GARRETT, RUSSELL S. VS. DIVISION OF
HIGHWAYS (CC-99-226) ....
250
GREEN ACRES REGIONAL CENTER C/O
SHELTERED WORKSHOP OF
NICHOLAS COUNTY VS. DIVISION OF CORRECTIONS
(CC-99-304) 27
GARRISON, DANNY VS. DIVISION OF CORRECTIONS (CC-00-148) .... 236
GETZ, AUSTIN T.AND IRENE M. GETZ VS. DIVISION OF HIGHWAYS
(CC-99-353) 250
GILLENWATER, DAVID SCOTT VS. DIVISION
OF HIGHWAYS
(CC-97-207) 74
GODSEY-MAYLE, NANCY VS. DIVISION OF HIGHWAYS (CC-99-281).. 134
GREEN, SANFORD D. VS. DIVISION OF HIGHWAYS (CC-98-281) 76
HALL, RANDALL W. VS. DIVISION OF HIGHWAYS (CC-97-410) 132 HAMILTON, JR.,
PHILLIP JAMES VS. DIVISION OF HIGHWAYS
(CC-00- 184) 277
W.Va.J TABLE OF
CASES REPORTED 7
HAMPSHIRE COUNTY COMMISSION VS. DIVISION OF CORRECTIONS
(CC-99-317) 39
HARLESS, ANGELA D. VS. DIVISION OF HIGHWAYS (CC-98-178) 27
HART, JAMES FRANKLIN AND PATRICIA ANN HART VS. DIVISION
OF HIGHWAYS (CC-99-56) 252
HARTLEY, DOROTHY VS. DiVISION OF HIGHWAYS
(CC-98-277) 10
HENRY, ARTRIDGE VS. DIVISION OF HIGHWAYS (CC-99-173) 78
HERSMAN, BENJAMIN DALE VS. DIVISION OF HIGHWAYS
(CC-00-36) 278
HIGHLAND CELLULAR, INC. VS. DIVISION OF CORRECTIONS
(CC-00-206) 197
HILL, MARGARET VS. DIVISION OF HIGHWAYS (CC-94-651)
163
HUGHART, HERBERT NEIL VS. DIVISION OF HIGHWAYS (CC-98-430) . 80 HUGHART, PATRICIA A. AND DAVID SAMUEL HUGHART VS.
HIGHER
EDUCATION POLICY COMMISSION (CC-00-137) 214
HUNDAGEN, ERRY L. VS. HIGHWAYS (CC-98-303) 81
HUNT, JEREMY TAIT VS. DiVISION OF HIGHWAYS (CC-96-492) 317
KENNETH ANDY KENNEDY D/B/A KENNEDY AUTO SALES VS.
DIVISION OF HIGHWAYS (CC-96-373) 182
KEYSER, HOWARD L. VS. DIVISION OF HIGHWAYS (CC-99-233) 214
JACKSON, JANET VS. DEPARTMENT OF HIGHWAYS (CC-97-418) 7
JONES, KIMBERLY AND GARY JONES VS. DIVISION OF HIGHWAYS
(CC-97-323) 198
JONES, PENNIE L. AND KENNETH A. JONES VS. DIVISION OF
HIGHWAYS (CC-99-401) 258
8 TABLE OF CASES
REPORTED W.Va.]
JUSTICE, MICHAEL VS. DIVISION OF HIGHWAYS (CC-99-9) 180
KING, DEWAINE C. VS. DIVISION OF CORRECTIONS (CC-99-252) 84
KING, MARX SCOTT VS. DIVISION OF HIGHWAYS (CC-99-59) 186
KUTHY, JAMES VS. DIVISION OF HIGHWAYS (CC-99-137) 85
KUYKENDALL, JR., GARRETT B. VS. STATE RAIL AUTHORITY
(CC-99-399) 87
LAWRENCE, MARY ELIZABETH INDIVIDUALLY & AS EXECUTRIX
FOR THE ESTATE OF VIOLA F. RANSBERGER; STEVEN RANDALL
BROCK; AND DEBORAH ANNETTE LINEBERRY
VS. DIVISION OF HIGHWAYS (CC-98-70) 280
LEWIS, CORNELIUS R. VS. DIVISION OF HIGHWAYS (CC-98-106) 28
LINKOUS, BARBARA VS. DIVISION OF HIGHWAYS (CC-00-269) 225
LOCKHART, DELBERT E. AND BETTY LOU LOCKHART VS. DIVISION
OF HIGHWAYS (CC-97-106) 157
LOOSEMORE, TRACY VS. DIVISION OF HIGHWAYS (CC-99-92) 87
MACE, RON AND JOAN P. MACE VS. DEPARTMENT OF
ADMINISTRATION AND DEPARTMENT OF AGRICULTURE
(CC-99-172) 188
MAHONE, SR., MICKEY D. VS. DIVISION OF HIGHWAYS (CC-98-63) .. 216
MARTIN, DAVID BOYD VS. DIVISION OF HIGHWAYS (CC-97-236) .... 283
MASON, PHILLIP N. AND NICK I. VS. ALCOHOL BEVERAGE
CONTROL ADMINISTRATION CC-00-435) 289
MATUSKY, STEVE M. VS. DIVISION OF HIGHWAYS (CC-99-170) 90
MAYS, DWIGHT VS. DIVISION OF HIGHWAYS (CC-98-138) 10
MCDANIEL, ROY J. VS. DIVISION OF HIGHWAYS (CC-00-55) 291
W.Va.] TABLE OF
CASES REPORTED 9
MCDOWELL COUNTY COMMISSION VS. DIVISION OF CORRECTIONS
(CC-00-311) 227
McDOWELL COUNTY CORRECTIONAL CENTER VS. DIVISION OF
CORRECTIONS (CC-99-3 10) 41
MCLEAN, JIMMY AND PAULA MCLEAN VS. DIVISION OF HIGHWAYS
(CC-99-475) 290
MERRITT, LOGAN VS. BOARD OF TRUSTEES OF THE UNIVERSITY
SYSTEM OF WV (CC-99-472) 121
MICHAEL EDWARD QUEEN VS. DIVISION OF HIGHWAYS
(CC-99-279) 147
MODESITT, RICK VS. DEPARTMENT OF TAX AND REVENUE
(CC-0 1-009) 293
MONONGALIA COUNTY COMMISSION VS. DIVISION OF
CORRECTIONS (CC-Oo-347) 228
MONTGOMERY GENERAL HOSPITAL VS. DIVISION OF CORRECTIONS
(CC-00-488) 269
MONTGOMERY GENERAL HOSPITAL VS. DIVISION OF CORRECTIONS
(CC-99-212) 12
MOUNT, ANNA ELIZABETH VS. DIVISION OF HIGHWAYS
(CC-96-578) 135
MOZINGO, JEFF VS. DIVISION OF HIGHWAYS (CC-99-381) 260
MURPHY, ROBIN VS. DIVISION OF HIGHWAYS (CC-99-174) 219
NAPIER, BRENDA S. VS. DIVISION OF HIGHWAYS (CC-98-1 12) 91
NASSER, MUSTAPHA M. VS. REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY (CC-00-104) 164
NITRO ELECTRIC COMPANY VS. REGIONAL JAIL AND CORRECTION
FACILITY AUTHORITY AND SILLJNG ASSOCIATES, INC.
AND INSURANCE COMPANY OF NORTH AMERICA
(CC-95-109) 165
10 TABLE OF
CASES REPORTED W.Va.J
NATIONAL ENGINEERING AND CONTRACTING COMPANY VS.
DIVISION OF HIGHWAYS (CC-99-180) 328
NEWSOME, LEONARD BRENT VS. DIVISION OF HIGHWAYS
(CC-99-298) 222
NOBLE, BERTHA VS. DIVISION OF HIGHWAYS
(CC-98-326) 30
OHIO VALLEY MEDICAL CENTER VS. DIVISION OF CORRECTIONS
(CC-00-436) 260
ONEAL, MARY KATHERINE (LEE) VS. DIVISION OF HIGHWAYS
(CC-99-52) 331
OXLEY, JAMES H. VS. DIVISION OF HIGHWAYS (CC-99-330) 145
PAGE, CHRIS VS. DIVISION OF CORRECTIONS (CC-00-414) 238
PAXTON, LEONARD VS. DIVISION OF HIGHWAYS (CC-98-250) 92
PAYNE, MARY ALICE VS. DIVISION OF HIGHWAYS (CC-98-314) 189
PHILLIPS, ERVIN LEE VS. REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY (CC-00-179) 199
PHILLIPS, GARY VS. REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY (CC-99-468) 114
PiNKERTON, EDWARD VS. DIVISION OF HIGHWAYS (CC-99-175) 95
PUMPHREY, JUANITA VS. DIVISION OF HIGHWAYS (CC-00-42) 294
PUTNAM TRUCKLOAD DIRECT VS. DIVISION OF HIGHWAYS
(CC-98-365) 97
RADIOLOGY, INC VS. DIVISION OF CORRECTIONS (CC-99-243) 13
RARDON, BOBBIE J. VS. DIVISION OF HIGHWAYS (CC-98-345) 41
RATCLIFF, FRED AND NETTlE RATCLIFF & LAWRENCE S THE GUARDIAN AND NEXT
FRIEND OF BENJAMIN NICHOLS RATCLIFF, AN INFANT VS. DIVISION OF HIGHWAYS
W.Va.J TABLE OF
CASES REPORTED 11
(CC-96-472) 148
REVEAL, SHERRI GOODMAN VS. ETHICS COMMISSION (CC-99-339) ..
43 RIVER VALLEY CHILD DEVELOPMENT SERVICES
VS. DEPARTMENT
OF HEALTH AND HUMAN RESOURCES (CC-98-415) 100
ROY ,
MARY AND JAMES ROY VS. DIVISION OF
HIGHWAYS
(CC-00-29) 295
SAVAGE, FRED, ADMINISTRATOR OF THE ESTATE OF LUTHER
SAVAGE VS. DIVISION OF HIGHWAYS (CC-96-447) 261
SAVILLE, EUGENE VS. DIVISION OF HIGHWAYS (CC-99-2) 190
SCHRADER, CHARLES SCHRADER AND HAZEL VS. DIVISION OF
HIGHWAYS (CC-97-58) 200
SCHREYER, WILLIAM A. VS. DIVISION OF MOTOR VEHICLES
(CC-00-165) 207
SEABOLT, SFIELIA F. VS. DIVISION OF HIGHWAYS (CC-97-150) 152
SELMAN, CHRISTINA VS. DIVISION OF
HIGHWAYS (CC-98-191) 154
SHAFFER, JASON L. VS. DIVISION OF HIGHWAYS (CC-98- 149) 31
SHANHOLTZ, STANLEY K. ANDMARSHA L. SHANHOLTZ VS.
DIVISION OF HIGHWAYS (CC-00-220) 297
SHIELDS, MARGARET ANN VS. DIVISION OF HIGHWAYS (CC-98-01) . 156 SIMMONS, JASON R. VS. BOARD OF TRUSTEES OF THE
UNIVERSITY
SYSTEM OF WEST VIRGINIA (CC-99-205) 33
SMITH, MICHAEL L. VS. DIVISION OF HIGHWAYS (CC-99-74) 192
STEVENSON, JULIET R. VS. ATTORNEY GENERAL’S OFFICE
(CC99-256) 43
STURM, STEPHANIE GALE VS. DIVISION OF HIGHWAYS (CC-99-409). 263
12 TABLE OF
CASES REPORTED W.Va.j
SUMMERFIELD, CLIFFORD S. VS. DIVISION OF HIGHWAYS
(CC-98-325) 101
SUTPH1N, KAREN J. VS. DIVISION OF HIGHWAYS (CC-00-298) 299
SUTTLE, DENNIS GENE VS. DIVISION OF HIGHWAYS (CC-99-106).... 300 TAUCHER,
TIMOTHY J. VS. DEPARTMENT OF PUBLIC SAFETY
(CC-00-51) 208
TAYLOR & JAMES, PLLC VS. WEST VIRGINIA INSURANCE
COMMISSION (CC-99-290) 33
TEAYS RIVER CONSTRUCTION COMPANY VS. DIVISION OF LABOR
(CC-00-177) 211
THE CONTINENTAL INSURANCE COMPANY VS. WEST VIRGINIA STATE POLICE AND DEPARTMENT
OF ADMINISTRATION
(CC-98-444) 117
THOMAS MEMORIAL HOSPITAL VS. DIVISION OF JUVENILE
SERVICES (CC-99-495) 114
THORNTON, RICHARD LEON VS. DIVISION OF HIGHWAYS
(CC-98-347) 193
TOTO, DAVID ALLEN VS. DIVISION OF HIGHWAYS (CC-98-3 15) 102
TYGART VALLEY TOTAL CARE CLINIC VS. DIVISION OF
CORRECTIONS (CC..99-195) 14
TAX NET GOVERNMENTAL COMMUNICATIONS CORPORATION VS.
DEPARTMENT OF TAX AND REVENUE (CC-99-224) 14
UNIVERSITY HEALTH ASSOCIATES VS. DIVISION OF CORRECTIONS
(CC-99-27 1) 44
UNIVERSITY OF GEORGIA RESEARCH FOUNDATION, NC. VS.
DIVISION OF NATURAL RESOURCES (CC-00-109) 211
VALLEY RADIOLOGISTS, INC. VS. DIVISION OF JUVENILE SERVICES
(CC-99-442) 115
W.Va.J TABLE OF
CASES REPORTED 13
WALTERS, JOHN KENNETH VS. DIVISION OF CORRECTIONS
(CC-96-591) 106
WARD, PHILLIP A. VS. DIVISION OF CORRECTIONS (CC-98-289) 104
WELCH, DAVID LEE VS. DIVISION OF CORRECTIONS (CC00-24) 239
WELLMAN, BILLY ARTHUR AND SHERRY VS. DIVISION OF
HIGHWAYS (CC-98-29) 169
WEST ,
ALTON DALE AND ALVIN DAVID WEST VS.
DIVISION OF
HIGHWAYS (CC-00-23) 302
WEST GROUP VS. DIVISION OF CORRECTIONS (CC-99-278) 34
WEST VIRGINIA ASSOCIATION OF REHABILITATION FACILITIES VS.
DEPARTMENT OF ADMINISTRATION (CC-98-395)
15
WEST VIRGINIA UNIVERSITY HOSPITAL
NASSER, MUSTAPHA M. VS. REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY
(CC-00-104) 164
WEST VIRGINIA UNIVERSITY HOSPITALS, INC. VS. DIVISION OF
CORRECTIONS (CC-00-3 12) 229
WHITE, JESS W. VS. DIVISION OF CORRECTIONS (CC-99382) 45
WILEY, RANSOM VS. DIVISION OF HIGHWAYS (CC-99-376) 266
WILLIAMS, JOAN L. VS. DIVISION OF HIGHWAYS (CC-99-1 14) 109
WILLIAMS, NATHAN WILEY VS. DIVISION OF HIGHWAYS
(CC-99-95) 303
WILSON, SEBRINA L. VS. DIVISION OF HIGHWAYS (CC-97-213) 195
WITTMAN, JOHN C. VS. DIVISION OF
HIGHWAYS (CC-98-244) 46
WOOTEN, TERRY R. VS. DIVISION OF HIGHWAYS (CC-97-7) 4
WOOD COUNTY COMMISSION VS. DIVISION OF CORRECTIONS
(CC-99-328) 44
14 TABLE OF
CASES REPORTED W.Va.J
WOOD COUNTY COMMISSION VS. DIVISION OF CORRECTIONS
(CC-OO-486) 270
WV REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY VS.
DIVISION OF CORRECTIONS (CC-99-451) 108
WV REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY
VS. DIVISION OF CORRECTIONS (CC-00-447) 265
YOUNG, DELORIS B. VS. DIVISION OF
HIGHWAYS (CC-98-87) 34
W.Va.]
REPORTS STATE COURT OF CLAIMS 1
Cases Submitted and Determined
In the Court of Claims in the
State of West Virginia
OPINION ISSUED JULY13, 1999
BELL ATLANTIC - WEST VIRGINIA, INC.
VS.
ADJUTANT GENERAL
(CC-99-191)
Claimant represents self.
Joy M. Cavallo, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent’s Answer.
Claimant seeks $1,108.32 for providing telephone services to the respondent
during the 1998 fiscal year for which it has not been paid. The documentation
for these services was not processed for payment within the appropriate fiscal
year; therefore, the claimant has not been paid. In its Answer, the respondent
admits the validity of the claim and the amount, and states that there were
sufficient funds expired in the appropriate fiscal year from which the claim
could have been paid.
In view ofthe foregoing, the Court makes an award in the amount of$ 1,108.32.
Award ofSl,108.32.
OPINION ISSUED JULY13, 1999
LARRY T. BRAGG
Vs.
DIVISION OF HIGHWAYS
(CC-97-311)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
the respondent.
2 REPORTS STATE
COURT OF CLAIMS [W.Va.
PER CURIAM:
The claimant brought this action for damage to his motorcycle which occurred
when he encountered a large hole in the pavement of W. Va. Route 21/33 (also
known as Barrington Hill Road) in Oak Hill, Fayette County. This is a
residential area and the road basically serves the residents there.
This incident occurred on July 26, 1997, at approximately 5:30 am. It
was dark, but the weather was clear. The claimant was proceeding from his home
in Oak Hill to Dunbar, W.Va., where he was attending school. He described the
road as a two- lane, blacktopped road which is straight at the scene of the
incident but on a hill. He was going downhill at approximately 15 to 20 miles
per hour when he saw a large hole at the bottom of the hill. He was unable to
avoid striking the hole with his Yamaha motorcycle. He described the hole as
being over a foot in diameter and six to eight inches deep. He was familiar
with the road, but he had not noticed hole prior to this particular morning.
The motorcycle sustained damage to a wheel and a tire in the amount of $567.52
which includes the cost of mounting and balancing the tire.
The respondent offered no witnesses on its behalf.
The Court, having reviewed the facts in this claim, has determined that the
respondent had to have had at least constructive notice of the hole on County
Route 21/33 based upon its size as described by the claimant. Therefore, the
Court is of the opinion that respondent was negligent in its maintenance of
this road as of the date of claimant’s accident, and the Court makes an award
to the claimant for the damages to his motorcycle in the sum of $567.52.
Award of $567.52.
OPINION ISSUED JULY 13, 1999
GEORGE A. DEER
VS.
DIVISION OF HIGHWAYS
(CC-97-3 58)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for the respondent.
PER CURIAM:
The claimant brought this action for damage to his vehicle after he encountered
an area of road construction and his vehicle, a 1997 Toyota pickup truck,
received paint damage from spots of concrete. The damages to the truck exceeded
the amount of claimant’s insurance deductible of $500.00 to which he is limited
in his recovery.
The incident which resulted in the damages to claimant’s truck occurred on
W.Va.] REPORTS
STATE COURT OF CLAIMS 3
September 2, 1997, when claimant and his wife were driving towards her place of
work.
Claimant drove through a construction area on W. Va. Route 10, also known as
Logan
Boulevard, where concrete was being poured by respondent’s employees.
He noticed that the wind was blowing, but he did not stop. Later that same day,
he had driven to Charleston with a friend when he noticed little specks on the
hood, windshield, fenders, front bumper, and grill which appeared to have eaten
into the paint on the truck. His vehicle was having rims placed on it so he
mentioned the specks to an employee at the automobile shop who told him to
return the next day for an inspection by the body shop. Upon his return for the
inspection, he was informed that the specks were concrete. He then had another
shop in Logan also inspect his vehicle and they informed him that indeed it was
specks of concrete.
Approximately six months later, claimant traded his pick up truck for another
Toyota vehicle. Claimant is certain that the concrete blew onto his vehicle
when he was driving through the construction area on W. Va. Route 10 on
September 2, 1997.
Respondent offered no witnesses to rebut the testimony of the claimant.
The Court, having reviewed the facts of this claim, is of the opinion that
claimant’s vehicle was damaged at the scene ofthe road construction when
respondent’s employees were pouring concrete. The wind created a hazardous
condition for motorists passing through the area as it is more than just
happenstance that concrete was sprayed all over claimant’s truck. For this
reason, the Court makes an award to the claimant for the damage to his truck in
the amount of $500.00.
Award of $500.00
OPINION ISSUED JULY 13, 1999
LINDA K. DUNCAN AND RICHARD L. DUNCAN
VS.
DIVISION OF HIGHWAYS
(CC-97-374)
Claimants appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
the respondent.
PER CURIAM:
The claimants brought this action for damage to their vehicle after claimant
Richard L. Duncan was driving their 1976 GMC pickup truck and he encountered a
hole at the edge of Manilla Creek Road in Poca, Putnam County. Claimants’ vehicle
sustained damage during this incident for which they claim $2,100.00.
Claimants’ insurance coverage is for liability only, but they did receive
$400.00 for glass breakage.
Claimant Richard L. Duncan and a friend were proceeding in claimants’
4 REPORTS STATE
COURT OF CLAIMS [W.Va.
pickup truck on Manilla Creek Road on September 16, 1997, when the vehicle went
into a hole described as being a broken off section of the edge of the road
which was two feet long and one and a half feet deep at the edge of the road.
Manilla Creek Road was described as being a narrow, one lane
road approximately 12 feet in width.
Claimants lived about one mile from the area of the incident. Mr. Duncan was
very familiar with the road and drove it on a daily basis. He explained that on
this particular occasion his truck went into the hole at the edge of the road
and proceeded over the hill striking some trees which actually stopped the
truck from going further down the hillside.
The report compiled by the investigating law enforcement agency, the Putnam
County Sheriffs Department, was introduced into evidence by Mr. Duncan. The
officer marked two boxes “Failure to Maintain Control” and “Other Roadway
Defects” on the front of the report and he wrote in the description that “... a portion of roadway was missing and truck rolled over
embankment on right side of roadway”. The investigation was completed while
claimants’ truck was still at the scene, but some hours after the accident. Mr.
Duncan had proceeded immediately after the accident with his friend to the
hospital for medical treatment.
Claimants’ pickup truck was totaled as a result of this accident. Mr. Duncan
received about $500.00 and $400.00 from his insurance carrier for all of the
glass breakage which occurred. He estimated the value of the truck at $3,000.00 for
a loss of about $2,100.00.
Respondent did not offer any witnesses or other evidence at the hearing.
The Court assumes that Manilla Creek Road in Putnam is a State maintained road.
It is a narrow road apparently serving residents in the area. It is
blacktopped, but according to the claimant, Mr. Duncan, there is little, if
any, berm on the side of the road at least in the direction in which he was
traveling on the date of the incident. The deteriorated condition of the edge
of the roadway in September 1997 leads this Court to opine that the respondent
did not maintain the roadway in proper condition; however, claimant Richard
Duncan was very familiar with the road. The Court has determined that Mr. Duncan
did not use the proper precaution of the reasonable, prudent driver while
traversing Man illa Creek Road on the date of his accident. Therefore, the
Court concludes that the parties were equally negligent and under the doctrine
of comparative negligence the claimants may not recover.
In accordance with the fmdings of the Court as stated herein above, the Court
denies this claim.
Claim disallowed.
OPINION ISSUED JULY 13, 1999
TERRY R. WOOTEN
W.Va.J REPORTS
STATE COURT OF CLAIMS 5
VS.
DIVISION OF HIGHWAYS
(CC-97-7)
David G. Thompson, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
BAKER, JUDGE:
The claimant brought this action for personal injuries which occurred as a
result of a slip and fall accident while walking on Route 3, which is a road
maintained by the respondent in Raleigh County. The Court is of the opinion to
deny the claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on November 26, 1995 at about 7:15 p in. T
he claimant, T erry R. Wooden, was helping a friend deliver mining equipment to
Glen Daniels, West Virginia. After moving the equipment, the claimant went to
the Citgo station on Route 99 to eat. Afterwards, the claimant decided to walk
to his friend’s house to shower, which is about ‘/2 mile from Route 3 (the transcript is unclear which
direction the claimant was heading). While walking, the claimant had his
attention on the area between the white line on the berm of the road and the
guardrail, which was about five feet. Previously, the claimant, who was an avid
walker, had been on Route 3 three to four times. At no time in the past had he
noticed any subsiding or deterioration of Route 3.
While a pedestrian on Route 3 in the Bolt area of Raleigh County, West Virginia, the
claimant encountered a portion of the road which had fallen away. Before he saw
that a portion of the road as subsiding, or deteriorating, he stepped into that
area. Subsequently, he lost his balance and fell ten to twelve feet into a ditch-like
area. When the claimant fell into the ditch-like area, he hit his ankle against
the guardrail. The claimant tried to get up, but fell again. Finally, on the
third attempt, the claimant was able to pull himself up and flag down traffic.
Eventually, two Deputy Sheriff officers arrived at the scene and called an
ambulance for the claimant.
As a result of the injury, the claimant has incurred medical bills in the
amount of $8,011.11. However, under an insurance policy held by the claimant,
he has been responsible for only $906.50 of the medical bills. Claimant’s
injuries have required surgery and physical therapy. Additional medical
expenses are anticipated in the future. Unfortunately, the claimant has
retained a slight limp, and he some loss of mobility in his left ankle.
The position of the respondent in this claim is that it did not have actual or
constructive notice of the condition of Route 3 at the site of the claimant’s
accident. There had been no calls or letters describing any subsiding condition
or deterioration of Route 3 at the scene described herein. Moreover, Route 3 is
a first priority road. Consequently, the road is patrolled regularly for road
defects. However, no defects were ever found on Route 3 by the respondent’s
substation road crew located at Bolt. Thus,
6 REPORTS STATE
COURT OF CLAIMS [W.Va.
there was no notice of any road defects on Route 3 which should have been
repaired.
It is well established that the State is neither an insurer nor a guarantor of
the safety ofmotorist upon its roads. Adkinsvs. Sims, 130 W.Va. 645; 46
S.E.2d 81 (1947). In order to hold the respondent liable for road defects of
this type, the claimant must prove that the respondent had actual or
constructive notice. Pritt vs. Dept. ofHighways, 16 Ct. Cl. 8 (1985); Harmon
vs. Dept. of Highways, 16 Ct. Cl. 127 (1986). The Court is of the opinion
that the respondent did not have any notice, actual or constructive, of this
road hazard on Route 3; therefore, respondent did not have an opportunity to make
repairs.
In the present claim, the evidence established that the respondent sent its
employees to inspect the area of Route 3 in question on a regular basis. The
evidence further established that the respondent has not been put on notice
from the general public through phone calls or letters. While sympathetic to
the claimant’s situation, the Court is of the opinion that the respondent took
reasonable steps to ensure the safety of Route 3 and that there is insufficient
evidence of negligence upon which to justify an award. Therefore, in view of
the foregoing, the Court denies this claim.
Claim disallowed.
STIPULATION ENTERED A UGUST 4, 1999
IN THE COURT OF CLAIMS, STATE OF WEST VIRGiNIA
RICHARD E. EASTER. SR.. and
DEBRA SUE EASTER, his wife,
Claimants,
v. CLAIM NO. CC-95-334
WEST VIRGINIA DEPARTMENT
OF HIGHWAYS,
Respondent.
STIPULATION
On this day came the claimants, Richard E. Easter and Debra Sue Easter, by
counsel, Joseph P. Whittington, and respondent, West Virginia Department of
Highways, by counsel, Mdrew F. Tarr and Xueyan Zhang, and announced to the
Clerk of the Court of Claims that the parties have agreed to stipulate to the
above-referenced claim. Specifically, the parties stipulate to the following:
1. Respondent admits that it i s responsible for the maintenance of West
Virginia Secondary Route 8 and Secondary Route 8/4 in Kanawha County, West
Virginia.
W.Va.J REPORTS
STATE COURT OF CLAIMS 7
2. Respondent admits some, but not all, responsibility for the deterioration of
claimants’ retaining wall that is the subject of the above-styled claim.
Claimants’ retaining wall is located near the intersection of West Virginia
Secondary Route 8 and Secondary Route 814 in Kanawha County, West Virginia.
3. The parties stipulate and agree that other factors, including, but not
limited to, the age and construction of claimants’ retaining wall, also
contributed to the deterioration of said wall.
4. Respondent agrees to reimburse the claimants in the total amount of Five
Hundred Dollars ($500.00) for that portion of the deterioration to claimants’
retaining wall that can be attributed to respondent.
5. The parties to this claim agree that the total sum of Five Hundred
Dollars ($500.00) paid by respondent to claimants in Claim No. CC-95-334 acts
as a full and complete settlement, compromise and resolution of all matters in
controversy in said claim and as full and complete satisfaction of any and all
past and future claims claimants may have against respondent arising from the
matters described in said claim.
WHEREFORE, in accordance with the agreement contained in this stipulation, this
Court makes an award ofFive Hundred Dollars ($500.00) to the claimants in Claim
No. CC-95-334.
STIPULATION ENTERED A UGUST 5, 1999
JANET JACKSON,
Claimant,
V. CLAIM NO. CC-97-418
WEST VIRGINIA DEPARTMENT
OF HIGHWAYS,
Respondent.
STIPULATION
On this day came the claimant, Janet Jackson, by counsel, John R. Mitchell, and
respondent, West Virginia Department of Highways, by counsel, Andrew F. Tarr
and Xueyan Zhang, and announced to the Clerk of the Court of Claims that the
parties have agreed to stipulate to the above-referenced claim. Specifically,
the parties stipulate to the following:
1. Respondent admits that it is responsible for the maintenance of West
Virginia Route
315 in Mingo County, West Virginia.
8 REPORTS STATE
COURT OF CLAIMS [W.Va.
2. Respondent admits some, but not all, responsibility for the automobile.
accident involving claimant that is at issue in the above-styled claim.
3. Respondent agrees to reimburse the claimant in the total amount of Three
Thousand Five-Hundred Dollars ($3,500.00) for damages for that portion of
claimant’s accident that can be attributed to respondent.
4. The parties to this claim agree that the total sum of Three Thousand Five-
Hundred Dollars ($3,500.00) paid by respondent to claimant in Claim No.
CC-97-418 acts as a full and complete settlement, compromise and resolution of
all matters in controversy in said claim and as full and complete satisfaction
of any and all past and future claims claimant may have against respondent
arising from the matters described in said claim.
WHEREFORE, in accordance with the agreement contained in this stipulation, this
Court makes an award of Three Thousand Five-Hundred Dollars ($3,500.00) to the
claimant in Claim No. CC-97 -418.
OPINION ISSUED AUGUST24, 1999
BARBOUR COUNTY COMMISSION
VS.
DIVISION OF CORRECTIONS
(CC-99-202)
Claimant appeared pro se.
Joy M. Cavallo, Assistant Attorney
General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent’s Answer.
The claimant, Barbour County Commission, is responsible forthe incarceration of
prisoners who have committed crimes in Barbour County, but have been sentenced
to facilities owned and maintained by the respondent, Division of Corrections.
The claimant brought this action to recover $ 1,850.00 in costs for providing
housing and/or medical care to prisoners who have been sentenced to a State
penal institution, but due to circumstances beyond the control of the county,
these prisoners have had to remain in the custody of the county for periods of
time beyond the date of the commitment order.
The Court previously determined in County
Comm ‘ii.
of Mineral County vs. Div.
ofCorrections, unpublished opinion
issued November21, 1990, (CC-89-340), that
W.Va.J REPORTS
STATE COURT OF CLAIMS 9
the respondent is liable to the claimant for the cost of housing and providing
medical care to inmates sentenced to a State penal institution.
Pursuant to the holding in Mineral County, the respondent reviewed this
claim to determine the invoices for the services for which it may be liable.
Respondent then filed an Answer admitting the validity of the claim in the
amount of$ 1,850.00.
In view of the foregoing, the Court makes an award to claimant in the amount of
$1,850.00.
Award of $1,850.00.
OPINION ISSUED AUGUST24, 1999
BATRA CARDIOLOGY ASSOCIATES, INC.
VS.
DIVISION OF JUVENILE SERVICES
(CC-99- 155)
Claimant appeared pro Se.
C. Scott Mckinney, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim arid the respondent’s Answer.
Claimant seeks $276.00 for providing medical services to a juvenile inmate at
the Northern Regional Juvenile Detention Center in Wheeling, a facility of the
respondent. The documentation for these services was not processed for payment
within the appropriate fiscal year; therefore, the claimant has not been paid.
In the Answer, respondent admits the validity of this claim as well as the
amount, and states that there were sufficient funds expired in the appropriate
fiscal year from which the claim could have been paid.
Accordingly, in view of the foregoing, the Court hereby makes the following
award.
Award of $276.00.
OPINION ISSUED AUGUST24, 1999
DOROTHY HARTLEY
VS.
10 REPORTS STATE
COURT OF CLAIMS [W.Va.
DIVISION OF HIGHWAYS
(CC-98-277)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM
This claim was submitted to the Court for decision upon a Stipulation entered
into by the claimant and the respondent wherein certain facts and circumstances
of the claim were et forth as follows:
1. On April 18, 1998, claimant was traveling north on W. Va. Route 2, coming
out of Point Pleasant, at the flood wall in Mason County, when the claimant’s
vehicle hit a large hole located in the center of the road.
2. As a result of this incident, claimant’s vehicle sustained damage in the sum of $ 148.39.
3. Respondent owns and maintains W. Va. Route 2 in Mason County, in a
reasonably safe condition.
4. On the date of the incident herein, respondent failed to maintain W. Va.
Route 2 in Mason County, in a reasonably safe condition.
5. Respondent agrees that the amount of damages as put forth by the
claimant is fair and reasonable.
The Court has reviewed the facts of the claim as stated in the Stipulation, and
adopts the statement of facts as its own. The Court fmds that respondent was
negligent in its maintenance of W. Va. Route 2 on the date of the claimant’s
incident; that the negligence of the respondent was the proximate cause of the
damages sustained to claimant’s vehicle; and that the amount of the damages agreed
to by the parties is fair and reasonable. Accordingly, the Court makes an award
in the amount of $148.39 to the claimant.
Award of$148.39.
OPINION ISSUED AUGUST24, 1999
DWIGHT MAYS
VS.
DIVISION OF HIGHWAYS
(CC-98- 138)
W.Va.j REPORTS
STATE COURT OF CLAIMS 11
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for the respondent.
PER CURIAM:
The claimant brought this action for vehicle damage which occurred as a result
of two separate collisions with fallen trees on Route 34 and Route 34/8, which
are roads maintained by the respondent in Putnam County.’ The Court is of the
opinion to deny this claim for the reasons more fully stated below.
The first incident giving rise to this claim occurred on March 7, 1997 sometime
in the night. Claimant’s wife was traveling on Route 34 at Red House at a speed
of about twenty-five to thirty miles per hour. When the claimant’s wife came
around a curve, she suddenly encountered a tree that had fallen over the
guardrail and the claimant’s vehicle collided with the tree. Claimant’s wife
alleged that she was not able to see the fallen tree before the collision. This
particular road is frequently traveled by the claimant and his wife. In fact,
claimant and his wife had been on the same road six hours earlier, but did not
see the fallen tree at that time. Damage to claimant’s 1986 Toyota four-wheel
drive pickup as a result ofthe first incident was a broken antenna and mirror
as well as damage to left quarter panel, left tail light and four pin stripes. Because
no repair work has been done to the claimant’s vehicle as of the June 11, 1999,
hearing and the claimant was only able to produce an estimate for $1,040.92,
the exact amount of damages was unclear. Also, the record is unclear whether
the claimant had full or liability insurance coverage that would cover this
accident.
The second incident giving rise to this claim occurred on July 2, 1997 at about
11:00 p.m. Claimant’s wife was traveling on Route 34/8 (Bowles Ridge, off of
Route
34) to a friend’s house in Grandview Ridge on the stormy night in question.
Claimant’s wife went around a corner and suddenly encountered another fallen
tree and claimanfs vehicle collided with that tree. Like the first incident,
claimant wife was unable to see the tree until the collision. The resulting
damage to the claimant’s 1986 Toyota four- wheel drive pickup that was the
vehicle’s exhaust system was torn from the vehicle. Claimant’s out-of-pocket
expense for this accident was $100.44. As aforementioned, the record is unclear
whether claimant had full or liability insurance coverage that would cover this
accident.
‘The styling of this claim was changed at the June 11, 1999, hearing when it
was learned that Jenny Mays, the person who was operating the vehicle during
the
two accidents and who originally filed this claim, did not own the vehicle.
Rather, the vehicle was owned by her husband, Dwight Mays. Thus, this claim was
transferred to his name.
12 REPORTS STATE
COURT OF CLAIMS [W.Va.
The position of the respondent was that it did not have actual or constructive
notice of the conditions on Route 34 or Route 34/8 at the sites of claimant’s
accidents for either of the dates in question. Even though claimant alleges to
the contrary, there was no evidence that there had been any calls or letters
describing any fallen trees or other debris on Route 34 or Route 34/8 at the
site of the claimant’s accidents for either of the dates in question. Moreover,
Route 34 is a first priority road. Consequently, the road is patrolled regularly
for road defects, such as fallen trees and debris. Similarly, Route 34/8 is
patrolled regularly for road defects, such as fallen trees and debris. However,
on July 3, 1999, the day after a bad storm and claimant’s wife’s second
accident, fallen trees and debris were found and removed on secondary roads in
the area by the respondent’s employees in Putnam County, but it is unclear
whether any fallen trees or debris were ever the cause of claimant’s accident
or were removed from the locations in question. Thus, there was no notice of
any road defects on Route 34 or Route 34/8 which should have been repaired.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of motorist upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold the
respondent liable for road defects of this type, the claimant must prove that
the respondent had actual or constructive notice. Pritt vs. Dept. of
Highways, 16 Ct. Cl. 8(1985); Harmon vs. Dept. ofHighways, 16 Ct.
Cl. 127 (1986). The Court is of the opinion that the respondent did not have
actual or constructive notice of any road hazard on Route 34 or Route 34/8.
Respondent did not have ample opportunity to make repairs. Thus, the claimant
is not entitled to an award for his losses.
In the present case, the evidence established that the respondent regularly
sent its employees to inspect the locations in question. Further, the evidence
established that the respondent was not put on notice about any fallen trees or
debris in the locations in question. The Court is of the opinion that the
respondent did take reasonable steps to ensure the safety of Route 34 and Route
34/8 in Putnam County. The respondent was vigilant. Consequently, there is
insufficient evidence ofnegligence upon which to justify an award. In view of
the foregoing, the Court denies this claim.
Claim disallowed.
OPINION ISSUED AUGUST24, 1999
MONTGOMERY GENERAL HOSPITAL
VS.
DIVISION OF CORRECTIONS
(CC-99-2 12)
W.Va.1 REPORTS
STATE COURT OF CLAIMS 13
Claimant appeared pro se.
Joy M. Cavallo, 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 in the amount of $9,772.63 for medical services rendered
to inmates in Mount Olive Correctional Center, a facility of the respondent.
Respondent, in its Answer, admits the validity of the claim, but states that
there were insufficient funds in its appropriation for the fiscal year in
question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem
Sales and Service, et a!. vs. Dept.
of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED A UGUST 24, 1999
RADIOLOGY, INC
VS.
DIVISION OF CORRECTIONS
(CC-99-243)
Claimant appeared pro se.
Joy M. Cavallo, 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 in the amount of $3 3.00 for medical services rendered to
an inmate in the Cabell County Jail, but who is supposed to be in the custody
of the respondent. Respondent, in its Answer, admits the validity of the claim,
but states that there were insufficient funds in its appropriation for the
fiscal year in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
14 REPORTS STATE
COURT OF CLAIMS [W.Va.
recommended based upon the decision in Airkem Sales and Service, et al. vs.
Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED AUGUST24, 1999
TAX NET GOVERNMENTAL COMMUNICATIONS CORPORATION
VS.
DEPARTMENT OF TAX AND REVENUE
(CC-99-224)
Claimant represents self.
Joy M. Cavallo, Assistant Attorney General, for respondent.
PER CURTAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent’s Answer.
Claimant seeks $2,124.43 for network services provided to the respondent The
documentation for these services was not processed for payment within the
appropriate fiscal year; therefore, the claimant has not been paid. In its
Answer, the respondent admits the validity of the claim and the amount, and states
that there were sufficient funds expired in the appropriate fiscal year from
which the claim could have been paid.
In view ofthe foregoing, the Court makes an award in the amount of $2,124.43.
Award of $2,124.43.
OPINION ISSUED AUGUST24, 1999
TYGART VALLEY TOTAL CARE CLINIC
VS.
DIVISION OF CORRECTIONS
(CC-99- 195)
Claimant represents self.
Joy M. Cavallo, Assistant Attorney General, for respondent.
W.Va.j REPORTS
STATE COURT OF CLAIMS 15
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondents Answer.
Claimant seeks $625.00 for medical services rendered to an inmate in Pruntytown
Correctional Center, a facility of the respondent. Respondent, in its Answer,
admits the validity of the claim, but states that there were insufficient funds
in respondent’s appropriation for the fiscal year in question from which to pay
that portion of the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et al. vs.
Dept. of Mental Health, 8 Ct.Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED AUGUST24, 1999
WEST VIRGINIA ASSOCIATION OF
REHABILITATION FACILITIES
VS.
DEPARTMENT OF ADMINISTRATION
(CC-98-395)
Claimant appeared pro Se.
Brian Casto, Attorney at Law, 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 $27.62 for providing bulk mailing services to respondent’s
office at the West Virginia Capitol Building in Charleston. The documentation
for these services was not processed for payment within the appropriate fiscal
year; therefore, the claimant has not been paid. In the Answer, respondent
admits the validity of the claim as well as the amount, and states that there
were sufficient funds expired in the appropriate fiscal year from which the
claim could have been paid.
Accordingly, in view of the foregoing, the Court hereby makes the following
award.
Award of $27.62.
16 REPORTS STATE
COURT OF CLAIMS [W.Va.
OPINION ISSUED SEPTEMBER 8, 1999
CINDY ADKINS
Vs.
DIVISION OF HIGHWAYS
(CC-98-95)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage sustained to her vehicle as a result of
an encounter with a large hole at the junction of W. Va. Route 61 and County
Route 79/3, a junction maintained by respondent in Kanawha County. The Court is
of the opinion to make an award for the reasons more fully stated below.
Atthej unction ofW. Va. Route 61 a ndCounty Route 79/3 there is an underpass,
which is approximately thirty to fifty feet in length. Surprisingly, the
underpass throughway is flat. County Route 79/3 is about twenty-two feet wide,
whereas W. Va. Route 61 is about twenty-four feet wide. The underpass is
controlled by a stoplight which restricts traffic flow to one direction at a time.
A motorist coming out of the underpass onto W. Va. Route 61 would encounter a
large hole located approximately fifty to seventy feet after passing the
underpass. The hole was four to six inches deep and was wide enough to
encompass the centers of both lanes on W. Va. Route 61. Further, the hole did
not become visible to the motorist until after she passed through the
underpass. Respondent was aware of this defective condition and placed two
steel plates, measuring ten feet by fourteen feet by three inches thick, over
the hole. Moreover, respondent was aware that large trucks would often push
these steel plates under one another, exposing the hole.
One day in January of 1998 at about 12:00p.m., claimant was driving her 1991
Pontiac Grand Am from County Route 79/3, Cabin Creek, to W. Va. Route 61.
Traveling at a rate of speed about twenty miles per hour in a thirty-five miles
per hour zone, c laimant’s vehicle hit a large h ole, which w as not c overed
by steel p lates. Previously, claimant had driven the same road. However, on
those previous occasions, metal plates covered the hole. The damage that
resulted from hitting the hole was that the 1991 Pontiac Grand Am was knocked
out of alignment and there was damage to the tires, which were new. Total
damage to the vehicle as a result of hitting the hole was in
W.Va.J REPORTS
STATE COURT OF CLAIMS 17
the sum of $145.15. Claimant’s insurance had a deductible feature of
five hundred dollars. There was a ten month lapse between the accident and
notice of the damage to her tires. Afterwards, claimant contacted the
respondent regarding the accident.
Respondent acknowledged that the hole on W. Va. Route 61 was a very bad and
ongoing problem. Specifically, there was a “base failure” which was exacerbated
by the traffic flow of large trucks. This defective condition on W. Va. Route
61 existed approximately three hundred feet from respondent’s garage. Cold mix
asphalt was used on a regular basis to fix the hole, since hot asphalt mix is
unavailable during the winter. The large trucks would knock off steel plates nd
dig out the cold mix asphalt. Consequently, the road was difficult to maintain
dt4ring the winter. Further evidenced was the fact that daily reports showed
work on the itoad on a regular basis. Eventually, the black top was removed to
secure the metal plates in the road during March of 1998. Future work has been
scheduled to give the road more stability.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor ofthe safety of motorists upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold
respondent liable for road defects of this type, claimant must prove that
respondent had actual or constructive notice. Pritt vs. Dept. of Highways, 16
Ct. Cl. 8 (1985); Harmdn vs. Dept. of Highways, 16 Ct.Cl. 127 (1986).
In the present case, the evidence established that respondent’s employees
inspected the junction of W. Va. Route 61 and County Route 79/3 on a regular
basis. This inspection usually resulted in repair work to the junction in
question. Thus, respondent had actual notice of the condition then and there
existing. The Court is of the opinion that respondent did n ott ake reasonable
s teps to ensure the s afety of motorists traveling at the junction of W. Va.
61 and County Route 79/3. Consequently, there is sufficient evidence of
negligence to base an award.
In view of the foregoing, the Court makes an award in the amount of $145.15 to
claimant for the damages to her vehicle.
Award of$l45.15.
OPINiON ISSUED SEPTEMBER 8, 1999
JOHN ALLEN BAILEY
VS.
DIVISION OF HIGHWAYS
(CC-99-l 19)
18 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for the
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage from a wreck which occurred on
Route 52/3
(Johnstown Road), Harveytown, as a
result of negligent maintenance of a storm drain and ditch from Interstate 64.
Route 52/3 (Johnstown Road), Harveytown, is a road maintained by respondent in
Cabell County. The Court is of the opinion to make an award for the reasons
more fully stated below.
The incident giving rise to this claim occurred on February 25, 1998, at about
7:30 a.m. On the morning in question, claimant was traveling to work. The
temperature was cold. Claimant was traveling at about twenty-five miles per
hour. Claimant frequently traveled Route 52/3 (Johnstown Road) about five times per week for the past two to three
years. But, claimant had not been on that road for a few days preceding the
accident.
Route 52/3 (Johnstown Road) is a two lane road about sixteen to eighteen feet
wide. At the location in question, the road is curved and slants downhill.
About one- tenth of a mile away from the accident site, there is a storm drain
from Interstate 64. According to claimant, there has been a drainage problem,
from the storm drain of Interstate 64, and drivers must drive on the other side
of the road at this particular location in order to avoid ice and snow in the
road. However, on this particular day, claimant was trying to stay out of the
ice and snow on his side of the road, but oncoming traffic forced him onto his
side of the road. Subsequently, claimant’s vehicle encountered sand and gravel
that was on top of ice, which forced him to lose control of his vehicle and
collide with a private landowner’s fence and wall.
The resulting damage to claimant’s 1979 Plymouth Volare Duster was estimated at
$1,191.26. Claimant’s vehicle sustained damage to the front and inner fender, a
headlight rim, the corner of the grill, the bumper as well as a bent frame. No
repair work has been done to the vehicle as of the April 14, 1999 hearing, but
claimant did introduce into evidence an estimate for repair of$ 1,180.84.
Because cost of repair would exceed the value of claimant’s vehicle, the
vehicle was deemed “totaled.” Eventually, the vehicle was sold for salvage and
the claimant received the sum of $100.00. Claimant did not have insurance
coverage that would cover this accident. In addition, Claimant personally fixed
the private landowner’s fence for a cost of$ 10.42.
The p osition o f respondent was that it was n ever in receipt of actual or
constructive notice of the condition of Route 52/3 (Johnstown Road) an the site
of claimant’s accident. There had been no calls or letters describing any
drainage problems at the site of claimant’s accident. Respondent’s position was
that any drainage problem was from private landowners’ yards and driveways that
encroach onto the State’s right-
W.Va.j REPORTS
STATE COURT OF CLAIMS 19
of-way and there is not enough distance to put in a culvert. Consequently, the
State’s options are limited. However, photographic evidence introduced at the
April 14, 1999, hearing demonstrated that there was debris in the storm drain
ditch which forced water onto the road. Likewise, the photographic evidence
also demonstrated that there was a crack in the storm drain that allowed water
to bypass the storm drain and exacerbate the drainage problem. Respondent was
unaware of any inspections of the storm drain site in question. There had been
construction work on a
bridge in the vicinity of the storm drain
in question by respondent. Respondent acknovledged that from the photographic
evidence there was ice and debris on Route 52/3 (Johnstown Road) on the
date and time in question.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of motorists upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold
respondent liable for road defects of this type, claimant must prove that
respondent had actual or constructive notice. Pritt vs. Dept. of Highways, 16
Ct. Cl. 8 (1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
In the present case, the evidence established that the respondent was put on
notice about the drainage problem, that respondent knew or should have known
that the drainage problem at the location in question was a hazard, and that
the respondent did not take reasonable steps to ensure the safety of those on
such a road. Consequently, there is sufficient evidence of negligence to base
an award.
Notwithstanding this fmding of negligence, the Court is still faced with the
issue of the value of claimant’s vehicle. At the April 14, 1999, hearing, there
was no testimony regarding the value of claimant’s vehicle in order to
substantiate the claimed values. Accordingly, the Court fmds the value of
claimant’s vehicle to be $1,000.00 Therefore, in view of the foregoing, the
Court hereby makes the following award.
Award of $1,000.00
OPINION ISSUED SEPTEMBER 8, 1999
RONALD E. BAILEY
VS.
DIVISION OF HIGHWAYS
(CC-98- 146)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
20 REPORTS STATE
COURT OF CLAIMS [W.Va.
PER CURIAM:
Claimant brought this action for tire damage which occurred as a result of an
encounter with a road sign which had fallen from the 35th Street Bridge after repair work on the bridge had
commenced by the contractor for respondent. The 35t Street Bridge is maintained by respondent in Kanawha
County. The Court is of the opinion to make an award for reasons more fully
stated below.
The incident giving rise to this claim occurred on April 9, 1998, at about
12:00 p.m. Claimant was traveling on the 35’’ Street Bridge ramp towards
Kanawha City, in Kanawha County. The day in question was cloudy and windy.
There was little traffic on the road. Claimant was traveling at about
twenty-five to thirty miles per hour across the bridge. Suddenly, an orange
road sign that was attached to the 35th Street Bridge fell off the bridge and onto the road,
fifteen to twenty feet in front of claimant. Unable to avoid the fallen road
sign, claimant’s vehicle struck the fallen road sign. By the time claimant got
to the Kanawha City side of the 35th Street Bridge, his right rear truck tire was flat. The
collision with the sign resulted in claimant’s right rear truck tire being
slashed. Claimant incurred loss in the amount of $50.00.
Respondent denied liability for the
accident in question. Respondent acknowledges that claimant collided with a
road sign that had fallen from the 35th Street Bridge. However, respondent introduced evidence
that a contractor, Ahern & Associates, was doing repair work on the 35th Street Bridge
on the day in question pursuant to a contract between respondent and the
contractor. The contract between respondent and contractor, Ahern & Associates,
provided for a “save harmless” clause. Respondent moved to dismiss the
claimant’s claim at the hearing which motion was denied by the Court based upon
the “save harmless” clause. The contractor, Ahem & Associates, executed a
bond for this project upon which respondent may recover any award made to
claimant by this Court.
Respondent had employees at the construction site responsible for supervising
the actions of the contractor with regard to the safety of the traveling
public. Therefore, respondent had an obligation and a duty to ascertain that
the sign in question at the construction site was secured in a proper manner
such that it did not pose a hazard to the traveling motorist using the 35th Street
Bridge. The failure of respondent’s employees to supervise the contractor in
the proper placement of the sign constitutes negligence for which claimant may
recover his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $50.00 to claimant.
Award of $50.00.
W.Va.J REPORTS
STATE COURT OF CLAIMS 21
OPINION ISSUED SEPTEMBER 8, 1999
BLUEFIELD REGIONAL MEDICAL CENTER
VS.
DIVISION OF JUVENILE SERVICES
(CC-99-308)
Claimant appeared pro Se.
C. Scott McKinney, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent’s Answer.
Claimant seeks $209.75 for providing medical services to a juvenile at
respondent’s facility in Bluefield, Mercer County. The documentation for these
services was not processed for payment within the appropriate fiscal year;
therefore, claimant has not been paid. In its Answer, respondent admits the
validity of the claim as well as the amount, and states that there were
sufficient funds expired in the appropriate fiscal year from which the invoices
could have been paid.
Accordingly, the Court hereby makes an award to claimant in the amount of
$209.75.
Award of $209.75.
OPINION ISSUED SEPTEMBER 8, 1999
CAMDEN CLARK MEMORIAL HOSPITAL
VS.
DIVISION OF JUVENILE SERVICES
(CC-99-232)
Claimant appeared pro Se.
C. Scott McKinney, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent’s Answer.
22 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claimant seeks $75.00 for providing medical services to a juvenile at
respondent’s facility in Parkersburg, Wood County. The documentation for these
services was not processed for payment within the appropriate fiscal year;
therefore, claimant has not been paid. In its Answer, respondent admits the
validity of the claim as well as the amount, and states that there were
sufficient funds expired in the appropriate fiscal year from which the invoice could
have been paid.
Accordingly, the Court hereby makes an award to the claimant in the amount of
$75.00.
Award of $75.00.
OPINION ISSUED SEPTEMBER 8, 1999
TREVA CLUTTER
VS.
DIVISION OF HIGHWAYS
(CC-98- 157)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
the respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
an encounter with a hole while traveling northbound on Route 2 from Point
Pleasant, which is a road maintained by the respondent in Mason County. The
Court is of the opinion to make an award for the reasons more fully stated
below.
The incident giving rise to this claim occurred on April 3, 1998 at
approximately 2:15 p.m. Following work, claimant was traveling northbound on
Route 2 to go home. The day in question was clear and there was no oncoming
traffic on the road. Claimant was traveling the speed limit, which was
fifty-five miles per hour. Unfortunately, claimant’s vehicle hit a previously
patched hole on the right berm of the road that had become uncovered. Claimant
knew of the hole’s existence, but on April 3, 1999, was unable to avoid hitting
the hole. Apparently, the hole on the right berm of the road had eroded part of
the road. The hole was approximately four inches wide and six to eight inches
deep. The resulting damage to claimant’s 1995 Monte Carlo was two bursted tires
and a bent wheel rim. Claimant’s loss totaled $277.58. Claimant had collision
insurance with a deductible of $250.00.
W.Va.} REPORTS
STATE COURT OF CLAIMS 23
The well established principle oflaw in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of motorist upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold
respondent liable for road defects of this type, claimant must prove that
respondent had actual or constructive notice. Pritt vs. Dept. of Highways, 16
Ct. Cl. 8 (1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
In the present case, the evidence established that the respondent was put on
notice a bout the hole, e specially after the c laim Jason L. Shaffer vs.
Division of Highways (CC-98- 149), which was an accident at the exact same
location in question about two months prior to claimant’s April 3,1999,
accident. The Court is of the opinion that respondent did not take reasonable
steps to ensure the safety of Route 2 in Mason County. Respondent did have
ample opportunities to make repairs and should have been more vigilant.
Consequently, there is sufficient evidence of negligence to base an award.
However, claimant is entitled to an award for her loss, to the extent of the
deductible feature on her collision insurance. Therefore, in view of the
foregoing, the Court hereby make the following award.
Award of $250.00
OPINION ISSUED SEPTEMBER 8, 1999
EMP OF OHIO COUNTY
VS.
DIVISION OF JUVENILE SERVICES
(CC-99-303)
Claimant appeared pro se.
C. Scott McKinney, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent’s Answer.
Claimant seeks $135.40 for providing medical services to a juvenile at
respondent’s facility in Wheeling, Ohio County. The documentation for these
services was not processed for payment within the appropriate fiscal year;
therefore, claimant has not been paid. In its Answer, respondent admits the
validity of the claim as well as the amount, and states that there were
sufficient funds expired in the appropriate fiscal year
24 REPORTS STATE
COURT OF CLAIMS [W.Va.
from which the invoice could have been paid.
Accordingly, the Court hereby makes an award to the claimant in the amount of$
135.40.
Award of $135.40.
OPINION ISSUED SEPTEMBER 8, 1999
LiNDA L. FOSTER
VS.
DIVISION OF HIGHWAYS
(CC-98- 120)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for the respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
an encounter with a hole in the right-hand lane of Route 79/3, Cabin Creek
Road, coming out of Kayford, which is a road maintained by the respondent in
Kanawha County. The Court is of the opinion to deny the claim for the reasons
more fully stated below.
The incident giving rise to this claim occurred on March 28, 1998 at approximately
5:00 to 6:00 p.m. The weather was sunny and clear. Claimant was proceeding
along Route 79/3 at about twenty to thirty miles per hour. Furthermore,
claimant was traveling in the right-hand lane of Route, Cabin Creek Road,
coming out of Kayford, West Virginia, when her vehicle struck a hole in the
road. Having moved back to this particular area, claimant had not traveled on
Route 79/3 in several years prior to the March 28, 1998 accident. Claimant
maintained that she did not see the hole until after the collision. However, on
cross-examination, the claimant maintained that she could not avoid the
collision with the hole because she had been confronted by oncoming traffic. As
a result of the accident, claimant suffered two bursted tires and a bent rim on
her 1986 Chevy Caprice Classic. Unfortunately, claimant only had liability
insurance c overage o n h er v ehicle, w hich p recluded any reimbursement from
h er insurance carrier. Claimant suffered a loss of $325.15. No documentary
evidence was introduced by the claimant to prove these expenses at the June 11,
1999 hearing.
The well established principle of law in West Virginia is that the State is
neither
W.Va.J REPORTS
STATE COURT OF CLAIMS 25
an insurer nor a guarantor of the safety ofmotorists upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent
liable for road defects of this type, claimant must prove that respondent had
actual or constructive notice. Pritt vs. Dept. of Highways, 16 Ct. Cl. 8
(1985); Harmon vs. Dept. of highways, 16 Ct. Cl. 127 (1986).
In the present case, claimant never established that respondent was put on
notice about the hole on Route 79/3, Cabin Creek Road, in Kanawha County. There
was no evidence presented by claimant that the respondent did not take
reasonable steps to ensure the safety of Route 79/3. Respondent did not have
ample opportunity to make repairs to the road in question. Nor was there
evidence presented by claimant that respondent should have been more vigilant. Consequently,
there is insufficient evidence of negligence to base an award. Claimant is not
entitled to an award for her loss. Therefore, in view of the foregoing, the
Court hereby denies this claim.
Claim disallowed
OPINION ISSUED SEPTEMBER 8, 1999
VIRGiNIA GALLOWAY
VS.
DIVISION OF HIGHWAYS
(CC-98-21 1)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
an encounter with a falling tree while traveling west on U. S. Route 60 at
Cedar Grove, which is a road maintained by respondent in Kanawha County. The
Court is of the opinion to deny this claim for the reasons more fully stated
below.
The incident giving rise to this claim occurred on June 8, 1998, at
approximately 6:30 a.m. At daybreak on the morning in question, claimant was
making her routine drive to Charleston for work. Claimant was traveling
westbound in the right- hand lane of the four-lane section of U. S. Route 60
and proceeding to the two-lane section of U. S. Route 60. A coal truck was in
front of claimant’s vehicle. The coal truck made the trees and greenery move as
it proceeded down U. S. Route 60. As
26 REPORTS STATE
COURT OF CLAIMS [W.Va.
claimant came to the two-lane portion of U. S. Route 60, a dead tree fell and
struck claimant’s vehicle. The impact broke the vehicle’s windshield and
luggage rack. Then, the tree bounced on the front end of her vehicle and broke
the headlight. Claimant had only liability insurance coverage. The estimated
damage to claimant’s 1989 Dodge Caravan was in the amount of$ 1,101.02, but
claimant explained that her actual expenses for repair were $2,000.00.
The position ofrespondent was that it did not have actual or constructive
notice of the condition of such tree on U. S. Route 60 at Cedar Grove in
Kanawha County. According to respondent’s daily reports from the Chelyan
office, emergency service was dispatched to remove the tree from U. S. Route
60. The tree was removed as soon as the call was received. Respondent had no
prior information regarding condition of the tree or that it may have posed a
danger to the traveling public.
This Court has previously held that when the evidence indicates that respondent
does not have notice of a hazard, such as a falling tree, and a reasonable
opportunity to remove it, respondent cannot be held liable. Jones v.
Division of Highways, 21 Ct. Cl.
45 (1995).
There are several trees in this location of U. S. Route 60 at Cedar Grove
in Kanawha County. No evidence was presented as to whether the tree was on the
State’s right of way. Clearly, respondent can not be responsible for inspection
of all the trees in the area that may or may not be in the State’s right of
way. Respondent had no notice of the tree’s condition or that the tree’s
potential for falling posed a hazard to the traveling public. Consequently,
there is insufficient evidence of negligence upon which to base an award.
In view of the foregoing, the Court hereby denies this claim.
Claim disallowed.
OPiNION ISSUED SEPTEMBER 8, 1999
GREEN ACRES REGIONAL CENTER
C/O SHELTERED WORKSHOP OF
NICHOLAS COUNTY
VS.
DIVISION OF CORRECTIONS
(CC-99-304)
Claimant appeared pro Se.
W.Va.J REPORTS
STATE COURT OF CLAIMS 27
Joy M. Cavallo, 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 $468.40 for providing bottled water delivery and services at
Mount Olive Correctional Center, respondent’s facility in Fayette County. The
documentation for these services was not processed for payment within the
appropriate fiscal year; therefore, claimant has not been paid. In its Answer,
respondent admits the validity of the claim as well as the amount, and states
that there were sufficient funds expired in the appropriate fiscal year from
which the invoices could have been paid.
Accordingly, the Court hereby makes an award to the claimant in the amount of
$468.40.
Award of $468.40.
OPINION iSSUED SEPTEMBER 8, 1999
ANGELA D. HARLESS
VS.
DIVISION OF HIGHWAYS
(CC-98-l 78)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURJAM:
This claim was submitted to the Court for decision upon a stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the
claim were set forth as follows:
1. On March 6, 1997, claimant was traveling on W.Va. Route 10, Gaylor
Lane, Kanawha County, when her vehicle hit a large rock located in the center
of the road.
2. As a result of this incident, claimant’s vehicle sustained damage in the sum
of $202.11.
3. Respondent owns and maintains W.Va. Route 10, Gaylor Lane, Kanawha County,
in a reasonably safe condition.
28 REPORTS STATE
COURT OF CLAIMS [W.Va.
4. On the date of the incident herein, respondent failed to maintain W.Va.
Route 10, Gaylor Lane, Kanawha County, in a reasonably safe condition. The rock
in the road had been left there by respondent’s employees after culvert work
was performed at this location
5. Respondent agrees that the amount of damages as put forth by claimant is
fair and reasonable.
The Court has reviewed the facts of the claim as stated in the stipulation, and
adopts the statement of facts as its own. The Court fmds that respondent was
negligent in its maintenance of W.Va. Route 10, Gaylor Lane, Kanawha County, on
the date of claimant’s incident; that the negligence of respondent was the
proximate cause of the damages sustained to claimant’s vehicle; and that the amount
of the damages agreed to by the parties is fair and reasonable.
Accordingly, the Court makes an award in the amount of $202. 11 to claimant.
Award of $202.11.
OPINION iSSUED SEPTEMBER 8, 1999
CORNELIUS R. LEWIS
VS.
DIVISION OF HIGHWAYS
(CC-98- 106)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for the respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
an encounter with a hole on Route 19 (Robert C. Byrd Drive), southbound between
Beckley and Mt. Hope, which road is maintained by respondent in Raleigh
County.1 The Court is of the opinion to make an award in the claim for reasons
more fully stated below.
l Testimony
from the hearing on May 7, 1999, indicated that the hole was
on the southbound side of Route 19. However, testimony and an observation of a
map of West Virginia’s state highways shows that the claimant was actually
traveling northbound. Accordingly, the Court takes official notice of this
fact.
W.Va.] REPORTS
STATE COURT OF CLAIMS 29
The incident giving rise to this claim occurred on February 17, 1998, at about
11:00 p.m. After work, claimant was taking a friend home, who lived in Beckley.
At the time in question, there was minimal traffic flow on the road. The weather
that night was clear and the road was dry. Claimant was traveling at about
fifty miles per hour, which was the speed limit. After dropping his friend off,
he proceeded through a stop light when his vehicle’s passenger-side tire struck
a hole. The hole was located on the southbound, far right lane of the four lane
highway. The hole was a few inches deep, eight to ten inches wide, and about
one foot in length. Claimant had traveled on this portion of Route 19 before,
but he had not seen the hole prior to February 17, 1998.
After traveling two to three hundred feet from the hole, claimant stopped and
checked his vehicle. The passenger wheel of the claimant’s 1995 Pontiac Tran
Sport had burst and the alignment was knocked out of place. The resulting
damage to claimant’s vehicle was $171.72. This amount was less than his
insurance deductible of five hundred dollars.
Following the accident, claimant reported the road defect to the respondent’s
Skelton office.
Respondent acknowledged that it had prior knowledge of the hole in question. On
February 9, 1998, respondent’s employees had patched the hole. Cold mix asphalt
was u sed to fill the hole, s ince hot m ix a sphalt is unavailable during the
w inter. Unfortunately, due to inclement weather, the cold mix had come out of
the hole. According to respondent’s daily reports, no further was work done nor
were there any further complaints made about this portion of Route 19 until
claimant’s accident.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of motorists upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent
liable for road defects of this type, claimant must prove that respondent had
actual or constructive notice. Priti vs. Dept. of Highways, 16 Ct. Cl. 8
(1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
Respondent is well aware of the propensity of cold mix to come out of patched
holes, and respondent has a duty to maintain those areas on priority roads in a
more diligent manner.
In the present case, the evidence established that respondent knew about the
hole in the far right lane of the south bound side of Route 19, which is a
priority road. Likewise, respondent’s knowledge of the hole resulted in repair
work to the hole in question. The Court is of the opinion that respondent did
not take reasonable steps to ensure the safety of those on Route 19, a priority
road, and respondent should have been more vigilant. Consequently, there is
sufficient evidence ofnegligence to base an award. In view of the foregoing,
the Court is the opinion to and does make an award to claimant in the amount of
$171.72 for the damages to his vehicle.
30 REPORTS STATE
COURT OF CLAIMS [W.Va.
Award of$171.72.
OPINION ISSUED SEPTEMBER 8, 1999
BERTHA NOBLE
VS.
DIVISION OF HIGHWAYS
(CC-98-326)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
claimant’s vehicle going into a manhole depression while traveling northbound
on County Route 52/61 (Railroad Avenue) in the City of Wayne in Wayne County.
County Route 52/61 (Railroad Avenue) is a road maintained by respondent. The
Court is of the opinion to make an award to the claimant for the reasons more
filly stated below.
The incident giving rise to this claim occurred on September 5, 1998, at
approximately 1:30 p.m. The weather was clear. Claimant was traveling
northbound on County Route 52/61 (Railroad Avenue) in the City of Wayne, Wayne
County. County Route 52/61 (Railroad Avenue) had just been paved. As claimant
proceeded along the narrow road at a speed of about twenty-five to thirty miles
per hour in a speed zone of thirty-five miles per hour, she noticed children
playing nearby. Claimant was watching the children as she continued along the
road when her 1998 Nissan Pulsar suddenly struck a manhole that had not been
brought level to the pavement. The manhole was approximately five to six inches
deep. Claimant’s vehicle wheel hit and came out of the manhole. When the right,
front tire of claimant’s vehicle struck the hole, something hit the engine,
causing damage. Claimant never saw the manhole depression. After having her
vehicle towed to her home, claimant informed respondent about the manhole.
Claimant had only liability insurance coverage on her vehicle, which precluded
any reimbursement from her insurance carrier. The estimated damage to
claimant’s vehicle was $500.00 for replacement of the motor and motor mount
bolts.
Respondent asserts that it is not responsible for the maintenance of the
manholes on County route 52/61 (Railroad Avenue). County Route 52/61 (Railroad
Avenue) had been grandfathered into the State system during the 1970’s. As a
result, the utilities are covered under the “Accommodation of Utilities on
Highway Right of
W.Va.] REPORTS
STATE COURT OF CLAIMS 31
Way” which made the City of Wayne responsible for the manholes. This situation
meant that the series of manholes, including the one in question, that were in
the roadway prior to the road being taken into the State system were
grandfathered with the exclusion of not having to move the manholes out of the
traffic pattern. Consequently, the City of Wayne is obligated to adjust the
manhole covers for the drains to the proper level after paving operations are
completed by respondent. Respondent also asserts that the paving was performed
by a contractor for the State.
The Court, having considered the positions of the respective p arties, has
determined that respondent has obligation to inspect and to ascertain that
County Route 52/61 (Railroad Avenue)is maintained in a proper manner for
the safe and convenient use of the traveling public. This obligation requires
respondent to inspect the road after any paving operation in order to determine
if any warning signs were necessary. In the instant claim, as respondent’s
contractor paved County Route 52/61 (Railroad Avenue) and left manholes
unpaved, warning signs apparently were necessary. The failure of respondent’s
employees to supervise the road pavement work and to inspect the proper
placement of the warning signs constitutes negligence for which claimant may
recover her loss.
In view of the foregoing, the Court is of the opinion to and does make an award
in the amount of $500.00 to the claimant.
Award of $500.00
OPINION ISSUED SEPTEMBER 8, 1999
JASON L. SHAFFER
Vs.
DIVISION OF HIGHWAYS
(CC-98.. 149)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
the respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
an encounter with a hole while traveling northbound on Route 2 from Point
Pleasant, which is a road maintained by respondent in Mason County. The Court
is of the opinion to make an award for the reasons more fully stated below.
The incident giving rise to this claim occurred on February 27, 1998, at
32 REPORTS STATE
COURT OF CLAIMS [W.Va.
approximately 1:00 p.m. Claimant is a member of the United States Air Force and
is stationed in Dayton, Ohio, at Wright-Patterson Air Force Base. Following
work, claimant was traveling northbound on Route 2 in Mason County in order to
go home for the weekend. The location in question is twelve miles off Route 33
on Route 2 between Ripley and Point Pleasant. Route 2 is two-lane road that is
sixteen feet wide. Apparently, the hole on the right berm of the road had
eroded part of the road beyond the white line, into the paved portion of the
highway. The hole was approximately four inches wide and six to eight inches
deep.
The day in question was clear and there was no oncoming traffic on Route 2 in
Mason County. Claimant was traveling fifty miles per hour in a fifty-five miles
per hour speed zone. Unfortunately, claimant’s vehicle hit a hole in the right
edge of Route 2 in Mason County. Claimant did not know of the hole’s existence.
The resulting damage to claimant’s 1998 Cavalier Z24 was two bursted tires, two
bent wheel rims, inner fender damage and front-end alignment. The claimant’s
loss totaled $1,426.21. Claimant had a deductible of$500.00 in his collision
insurance coverage. However, if claimant turned in the accident to his
insurance, his twenty percent discount for safe driving would be lost, which
would further cost claimant $540.00.
Respondent denied prior knowledge of the hole in question. According to
respondent’s daily records no work was ever done nor were there any further
complaints made about this portion of Route 2 in Mason County. Further,
respondent acknowledged that the road was regularly inspected. However,
respondent did not know how long the eroded hole had been at this location.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of motorists upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent
liable for road defects of this type, claimant must prove that respondent had
actual or constructive notice. Pritt vs. Dep. of Highways, 16 Ct. Cl. 8
(1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
In the present case, the evidence established that respondent was at least on
constructive notice about the hole. The Court is of the opinion that respondent
did not take reasonable steps to ensure the safety of Route 2 in Mason County.
Respondent should have been more vigilant. Consequently, there is sufficient
evidence ofnegligence upon to base an award. Therefore, in view of the
foregoing, the Court makes the following award to claimant which is limited to
the deductible feature of his collision insurance.
Award of $500.00.
OPINION ISSUED SEPTEMBER 8, 1999
W.Va.] REPORTS
STATE COURT OF CLAIMS 33
JASON R. SIMMONS
VS.
BOARD OF TRUSTEES OF THE UNIVERSITY
SYSTEM OF WEST VIRGINIA
(CC-99.205)
Claimant appeared pro Se.
Samuel R. Spatafore, 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 $100.00 for his VCR that was destroyed when electrical work was
done in the apartment which claimant rented from respondent. In its Answer,
respondent admits the validity of the claim and that the amount is fair and
reasonable. The Court is aware that respondent does not have a fiscal method
for paying claims of this nature; therefore, the claim has been submitted to
this Court for determination.
Accordingly, the Court makes an award to the claimant for his loss in the
amount of $100.00.
Award of$100.00.
OPINION ISSUED SEPTEMBER 8, 1999
TAYLOR & JAMES, PLLC
VS.
WEST VIRGINIA INSURANCE COMMISSION
(CC-99-290)
Claimant appeared pro Se.
Joy M. Cavallo, 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 $4,127.00 for providing legal services to respondent in
Charleston. The documentation for these services was not processed for payment
within the appropriate fiscal year; therefore, claimant has not been paid. In
its Answer,
34 REPORTS STATE
COURT OF CLAIMS [WVa.
respondent admits the validity of the claim as well as the amount, and states
that there were sufficient funds expired in the appropriate fiscal year from
which the invoices could have been paid.
Accordingly, the Court hereby makes an award to claimant in the amount of
$4,127.00.
Award of $4,127.00.
OPINION ISSUED SEPTEMBER 8, 1999
WEST GROUP
VS.
DIVISION OF CORRECTIONS
(CC-99-278)
Claimant appeared pro Se.
Joy M. Cavallo, 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 $5,3 1708 for providing legal publications to Mount Olive
Correctional Complex, respondent’s facility in Fayette County. The
documentation for these publications was not processed for payment within the
appropriate fiscal year; therefore, claimant has not been paid. In its Answer,
respondent admits the validity of the claim as well as the amount, and states
that there were sufficient funds expired in the appropriate fiscal year from
which the invoices could have been paid.
Accordingly, the Court hereby makes an award to claimant in the amount of
$5,317.08.
Award of $5,317.08.
OPINION ISSUED SEPTEMBER 8, 1999
DELORIS B. YOUNG
VS.
DIVISION OF HIGHWAYS
W.Va.] REPORTS
STATE COURT OF CLAIMS 35
(CC-98-87)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for the
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
an encounter with a hole after claimant exited Harper Road (Route 3) onto
Harper Park Drive, a road maintained by respondent in Raleigh County. The Court
is of the opinion to make an award in this claim for the reasons more fully
stated below.
The incident giving rise to this claim occurred on February 11, 1998, at about
6:30 -
7:00 p.m. After having been at work,
claimant was traveling home on Harper Park Drive, a two lane highway that is
twenty feet wide with ten feet per lane. At the time in question, visibility
was near zero due to fog and some snow on the road. There was no lighting in
the area. Claimant was proceeding along Harper Park Drive at about ten to
twenty miles per hour. Due to the inclement weather conditions, claimant
carefully navigated her vehicle close to the right berm of the road. Suddenly,
claimant was blinded by the lights of an oncoming truck. Her vehicle then
struck a hole on the right side of the road. Having recently moved to the area,
claimant asserted that she had not observed this hole prior to February 11,
1998. After her vehicle hit the hole and traveled about five feet, she got out
and inspected her 1993 Nissan Sentra. The vehicle’s tires were damaged and the
vehicle pulled to one side. The condition of claimant’s vehicle required her to
obtain a rental vehicle. The resulting damage to claimant’s vehicle was
$882.01, not including rental cost of $286.20 and $40.00 in emergency repairs
on the night of the incident, required for claimant to drive her vehicle from
the scene. However, claimant had insurance coverage which covered all but
$576.20 of her total damages.
Shortly after the accident, acquaintances of claimant took photographic
evidence of Harper Park Drive and the hole in question for use in her claim.
Respondent denied prior knowledge of the hole in question. However, respondent
had an office on George Street, which is an adjacent street to Harper Park
Drive. According to respondent’s daily reports, no work was done since
December, 1997, nor were there any further complaints made about this portion
of Harper Park Drive. Respondent acknowledged that Harper Park Drive was not
regularly inspected.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of motorists upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent liable
for road defects of this type, claimant must prove that respondent had actual
or constructive notice. Pritt
36 REPORTS STATE
COURT OF CLAIMS [W.Va.
vs. Dept. of Highways, 16 Ct. Cl. 8 (1985); Harmon vs. Dept. of
Highways, 16 Ct. Cl. 127 (1986).
In the present case, the evidence established that respondent was put on notice
about the hole on Harper Park Drive. The photographic evidence offered by
claimant at the May 7, 1999, hearing established that respondent knew or should
have been put on notice that the hole in question was a hazard. The Court is of
the opinion that respondent did not take reasonable steps to ensure the safety
of those using Harper Park Drive. Respondent should have been more vigilant.
Consequently, there is sufficient evidence of negligence to base an award.
In view of the foregoing, the Court makes an award in the amount of $576.20 to
claimant for the damages to her vehicle.
Award of $576.20
ORDER ENTERED OCTOBER 1, 1999
WILLIE LEE DOTSON, AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF TRESA MYRETTA DOTSON, FOR
AND ON BEHALF OF THE SAID ESTATE
AND THE SURVIVORS THEREOF, AND
WILLIE LEE DOTSON, AS GUARDIAN,
NATURAL PARENT AND NEXT FRIEND OF
AUSTIN RYAN DOTSON, AN INFANT,
Claimants,
VS. CLAIM NO. CC-97-388
DIVISION OF HIGHWAYS,
Respondent.
ORDER
On a former day this claim came before the Court upon a Second Stipulation
filed by Jack H. Vital, III, counsel for the claimants, and Andrew F. Tarr,
counsel for the respondent, wherein the issues of liability and damages have
been agreed to by the parties,
And the Court, having duly considered the Second Stipulation (signed by
W.Va.J REPORTS
STATE COURT OF CLAIMS 37
counsel for the claimants on the 24th day
of August, 1999, and signed by counsel for the respondent on the 1St day of
September, 1999) and being of the opinion that it is in order, doth Order that
such Second Stipulation be and the same is hereby filed,
And the Court, having further determined that it has jurisdiction in the
premises, fmds that the settlement of the claims of the said Willie Lee Dotson,
both as personal representative and as guardian, for the gross sum of $125,000,
is fair and reasonable, and the same is hereby approved, ratified and confirmed.
It is, Accordingly, Ordered that an award of $125,000 be made in this claim,
allocated as follows:
(a) To Willie Lee Dotson, as Administrator of the Estate of Tresa Myretta
Dotson, deceased, the sum of $99,000, and
(b) To Willie Lee Dotson, as Guardian for Austin Ryan Dotson, an infant, the
sum of $26,000.
It is further Ordered that, as a condition upon the payment of the award to him
in the amount of $99,000, the said Willie Lee Dotson, as Administrator of the
Estate of Tresa Myretta Dotson, deceased, execute a good and sufficient bond
before the Clerk of the County Commission of Mingo County, West Virginia, in
the penalty of $99,000, with corporate surety, conditioned as provided by law,
and that, as a condition of the payment of the award to him in the amount of
$26,000, the said Willie Lee Dotson, as Guardian for Austin Ryan Dotson, an
infant, execute a good and sufficient bond before the said Clerk of the County
Commission of Mingo County, West Virginia, in the penalty of $26,000, with
corporate surety, conditioned as provided by law, and that certified copies of
the Letters of Administration and Guardian’s Certificate showing compliance
with such conditions be filed with the Clerk of this Court.
OPINION ISSUED OCTOBER 19, 1999
CHARLES BURKIEVICZ
VS.
DIVISION OF HIGHWAYS
(CC-99-284)
Claimant appeared pro se.
Andrew F. Tan, Attorney at Law, for
respondent.
38 REPORTS STATE
COURT OF CLAIMS [W.Va.
PER CURJAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the
claim were set forth as follows:
1. On June 25, 1999, claimant was traveling southbound on Route 250
when claimant was directed to pull over by a member of the WV State Police.
When claimant drove his vehicle to the side of the road, both tires on the
vehicle’s passenger side were sliced open by a cut-off road sign post which was
about four and a half inches high.
2. As a result of this incident, claimant’s vehicle sustained damage in the sum
of $2 16.24.
3. Respondent owns and maintains Route 250 in Mineral County and on the date of
the incident herein, respondent failed to maintain Route 250 in Mineral County
in a reasonably safe condition.
5. Respondent agrees that the amount of damages as put forth by claimant is
fair and reasonable.
The Court has reviewed the facts of the claim as stated iii the Stipulation,
and adopts the statement of facts as its own. The Court finds that respondent
was negligent in its maintenance of Route 250 on the date of claimant’s
incident; that the negligence of respondent was the proximate cause of the
damages sustained to claimant’s vehicle; and that the amount of the damages
agreed to by the parties is fair and reasonable. Accordingly, the Court makes
an award in the amount of $216.24 to claimant.
Award of $216.24.
OPINION ISSUED OCTOBER 19, 1999
CHARLESTON DEPARTMENT STORE
VS.
PUBLIC SERVICE COMMISSION
(CC-99-373)
Claimant appeared pro Se.
Joy M. Cavallo, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondents Answer.
W.Va.J REPORTS
STATE COURT OF CLAIMS 39
Claimant seeks $463.79 for providing work clothing to respondent. The
documentation for the merchandise was not processed for payment within the
appropriate fiscal year; therefore, claimant has not been paid. In its Answer,
respondent admits the validity of the claim as well as the amount, and states
that there were sufficient funds expired in the appropriate fiscal year from
which the invoice could have been paid.
Accordingly, the Court hereby makes an award to claimant in the amount of
$463.79.
Award of $463.79.
OPIWIONISSUED OCTOBER 19, 1999
PHYLLIS HAYNES EDENS, CCR
VS.
BOARD OF BARBERS AND COSMETOLOGISTS
(CC-99-359)
Claimant appeared pro Se.
Joy M. Cavallo, 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 $209.60 for providing court reporter services before
respondent’s hearing examiner in Charleston. The documentation for these
services was not processed for payment within the appropriate fiscal year;
therefore, claimant has not been paid. In its Answer, respondent admits the
validity of the claim as well as the amount, and states that there were
sufficient funds expired in the appropriate fiscal year from which the invoice
could have been paid.
Accordingly, the Court hereby makes an award to claimant in the amount of
$209.60.
Award of $209.60.
40 REPORTS STATE
COURT OF CLAIMS [W.Va.
OPINION ISSUED OCTOBER 19, 1999
HAMPShIRE COUNTY COMMISSION
Vs.
DIVISION OF CORRECTIONS
(CC-99-3 17)
Stephen W. Morelan, Attorney at Law, for claimant.
Joy M. Cavallo, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent’s Answer.
Claimant, Hampshire County Commission, is responsible for the incarceration of
prisoners who have ommitted crimes in Hampshire County, but have been sentenced
to facilities owned and maintained by respondent, Division of Corrections.
Claimant brought tis action to recover $13,813.53 in costs for providing housing
and/or medical care to prisoners who have been sentenced to a State penal
institution, but due to circumstances beyond the control of the county, these
prisoners have had to remain in the custody of the county for periods of time
beyond the date of the commitment order.
The Court previously determined in County Comm ‘n. of Mineral County vs.
Div. of Corrections, 18 Ct. Cl. 88 (1990), that respondent is liable to
claimant for the cost of housing and providing medical care to inmates
sentenced to a State penal institution.
Pursuant to the holding in Mineral County, respondent reviewed this
claim to determine the invoices for the services for which it may be liable.
Respondent then filed an Answer admitting the validity of the claim in the
amount of $13,813.53.
In view of the foregoing, the Court makes an award to claimant in the amount of
$ 13,8 13.53.
Award of $13,8 13.53
OPINION ISSUED OCTOBER 19, 1999
McDOWELL COUNTY CORRECTIONAL CENTER
VS.
W.Vaj REPORTS
STATE COURT OF CLAIMS 41
DIVISiON OF CORRECTIONS
(CC-99-3 10)
Sidney H. Bell, Prosecuting Attorney, for claimant.
Joy M. Cavallo, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted fo decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant, McDowell Couny Correctional Center, is responsible for the
incarceration of prisoners who have committed crimes in McDowell County, but
have been sentenced to facilities owed and maintained by respondent, Division
of Corrections. Claimant brought this action to recover $224,690.14 in costs
for providing housing and/or medical care to prisoners who have been sentenced
to a state penal institution, but due to circumstances beyond the control of
the county, these prisoners have had to remain in the custody of the county for
periods of time beyond the date of the commitment order.
The Court previously determined in County Comm ‘n. of Mineral County vs.
Div. of Corrections, 18 Ct. Cl. 88 (1990), that respondent is liable to
claimant for the cost of housing and providing medical care to inmates
sentenced to a State penal institution.
Pursuant to the holding in Mineral County, respondent reviewed this
claim to determine the invoices for the services for which it may be liable.
Respondent then filed an Answer admitting the validity of the claim in the
amount of $224,690.14.
In view of the foregoing, the Court makes an award to claimant in the amount of
$224,690.14.
Award of $224,690.14.
OPINION ISSUED OCTOBER 19, 1999
BOBBIE J. RARDON
VS.
DIVISION OF HIGHWAYS
(CC-98-345)
42 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURJAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the
claim were set forth as follows:
1. On August 6, 1998, claimant was traveling southbound on Interstate 79 in
Harrison County at mile marker 111, near Lost Creek, when claimant’s vehicle
struck a hole in a construction area that employees of respondent had dug
during the project. The hole was one of several and it was not marked with any
warning devices for the traveling public.
2. As a result of this incident, claimant’s vehicle sustained damage in the sum
of $474.80. However, claimant has a deductible feature of $250.00 in his motor
vehicle insurance policy coverage.
3. On the date of the incident herein, respondent failed to maintain
Interstate79 in Harrison County in a reasonably safe condition.
4. Respondent agrees that the amount of damages as put forth by the claimant is
fair and reasonable.
The Court has reviewed the facts of the claim as stated in the Stipulation, and
adopts the statement of facts as its own. The Court fmds that respondent was
negligent in its maintenance of Interstate 79 in Harrison on the date of
claimant’s incident; that the negligence of respondent was the proximate cause
of the damages sustained to claimant’s vehicle; and that the amount of the
damages agreed to by the parties is fair and reasonable. Claimant is entitled
to an award for his loss to the extent of the deductible feature in his motor
vehicle insurance policy.
Accordingly, the Court makes an award in the amount of $250.00 to the claimant.
Award of $250.00.
OPINION ISSUED OCTOBER 19, 1999
SHERRI GOODMAN REVEAL
VS.
ETHICS COMMISSION
W.Va.J REPORTS
STATE COURT OF CLAIMS 43
(CC-99-339)
Claimant appeared pro se.
Joy M. Cavallo, 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 $2,706.28 for providing legal services to respondent. The
documentation for these services was not processed for payment within the appropriate
fiscal year; therefore, claimant has not been paid. In its Answer, respondent
admits the validity of the claim as well as the amount, and states that there
were sufficient funds expired in the appropriate fiscal year from which the
invoices could have been paid.
Accordingly, the Court hereby makes an award to claimant in the amount of
$2,706.28.
Award of $2,706.28.
OPINION ISSUED OCTOBER 19, 1999
JULiET R. STEVENSON
VS.
ATTORNEY GENERAL’S OFFICE
(CC-99-256)
Claimant appeared pro se.
Joy M. Cavallo, Assistant Attorney General, for respondent.
PER CURTAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant seeks payment in the amount of $11,706.13 for travel expenses incurred
as an employee of respondent. Respondent, in its Answer, admits the validity
ofthe claim, but states that there were insufficient funds in its appropriation
for the fiscal year in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et a!. vs.
Dept. of
44 REPORTS STATE
COURT OF CLAIMS [W.Va.
Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED OCTOBER 19, 1999
UNIVERSITY HEALTH ASSOCIATES
VS.
DIVISION OF CORRECTIONS
(CC-99-27 I)
Claimant appeared pro Se.
Joy M. Cavallo, 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 in the amount of $77,501.75 for medical services
rendered to inmates in the custody of respondent’s facilities at
I-Iuttonsville, Pruntytown and Mount Olive. Respondent, in its Answer, admits
the validity of the claim, but states that there were insufficient funds in its
appropriation for the fiscal year in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Air/cern Sales and Service, et a!.
vs. Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED OCTOBER 19, 1999
WOOD COUNTY COMMISSION
VS.
DIVISION OF CORRECTIONS
(CC-99-328)
Genny Conley, Prosecuting Attorney, for claimant.
W.Va.j REPORTS
STATE COURT OF CLAIMS 45
Joy M. Cavallo, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent’s Answer.
Claimant, Wood County Commission, is responsible for the incarceration of
prisoners who have conmiitted crimes in Wood County, but have been sentenced to
facilities owned and maintained by respondent, Division of Corrections.
Claimant brought this action to recover $30,375.00 in costs for providing
housing and/or medical care to prisoners who have been sentenced to a state
penal institution, but due to circumstances beyond the control of the county,
these prisoners have had to remain in the custody of the county for periods of
time beyond the date of the commitment order.
The Court previously determined in County Comm ‘n. of Mineral County vs.
Div. of Corrections, 18 Ct. Cl. 88 (1990), that respondent is liable to
claimant for the cost of housing and providing medical care to inmates
sentenced to a State penal institution.
Pursuant to the holding in Mineral County, respondent reviewed this
claim to determine the invoices for the services for which it may be liable.
Respondent then filed an Answer admitting the validity of the claim in the
amount of $30,375.00.
In view of the foregoing, the Court makes an award to claimant in the amount of
$30,375.00.
Award of $30,3 75.00.
OPINION ISSUED NOVEMBER 15, 1999
JESS W. WHITE
VS.
DIVISION OF CORRECTIONS
(CC-99-3 82)
Claimant appeared pro Se.
Joy M. Cavallo, Assistant Attorney General, for respondent.
PER CURJAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant seeks $12.00 for lost clothing. In its Answer, respondent admits the
validity of the claim and that the amount is fair and reasonable. The Court is
aware that
46 REPORTS STATE
COURT OF CLAIMS [W.Va.
respondent does not have a fiscal method for paying claims of this nature;
therefore, the claim has been submitted to this Court for determination.
Accordingly, the Court makes an award to the claimant for his loss in the
amount of$12.00.
Award of$12.00.
OPINION ISSUED NOVEMBER 15, 1999
JOHN C. WITTMAN
VS.
DIVISION OF HIGHWAYS
(CC-98-244)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
an encounter with a drain cover while traveling eastbound on Route 892, seven
miles from Parkersburg in Wood County. Route 892 is a road maintained by
respondent in Wood County. The Court is of the opinion to deny this claim for
the reasons more fully stated below.
The incident giving rise to this claim occurred on June 28, 1998, at
approximately 9:00 a.m. Claimant was making a trip to purchase gas at Powell’s
General Store, located on Route 892. The weather was rainy. Adjacent to Route
892 at Powell’s General Store is a drain that is thirty-two feet from the
centerline. The drain is located in the parking lot of Powell’s General Store.
Claimant knew of the drain but was unaware that on the day in question, the
drain had become uncovered. As claimant was turning his 1993 Dodge Dakota into
the store parking lot when the front tire of his vehicle struck a drain cover
that had become exposed. After striking the drain cover, claimant’s tire burst
and the rim was broken. Claimant observed that there was another person in the
parking lot whose vehicle had also struck the exposed drain cover. Moreover,
claimant was informed by the store owner that the drain belonged to and was
maintained by respondent. Claimant carried liability insurance coverage only.
The resulting damage to claimant’s vehicle was $554.13, for a new tire,
rim and realignment.
The position of respondent is that it was not responsible for any damage caused
by the drain in question. According to respondent, its right of way extends
twenty feet from the centerline. The drain in question is located thirty-two
feet from the center line.
W.Va.J REPORTS
STATE COURT OF CLAIMS 47
Thus, the drain is outside of respondent’s right of way. Further, there is no
evidence of work or maintenance by respondent on the drain. Neither was there
evidence of a permanent drainage easement.
In the present claim, it was established that respondent was not responsible
for the maintenance ofthe drain adjacent to Route 892. Therefore, in view ofthe
foregoing, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 6, 1999
A&B SALES, INC.
VS.
DIVISION OF MOTOR VEHICLES
(CC-99- 104)
J. D. Miller, Attorney at Law, for claimant.
Joy M. Cavallo, Attorney at Law, for respondent.
PER CURIAM:
Claimant, formerly a West Virginia corporation in Ohio County, brought this
action to recover a fmancial loss it incurred when respondent failed to
indicate a lienholder on a certificate of title for a motor vehicle. The Court
is of the opinion to make an award in this claim for the reasons more fully
stated below.
In the ordinary course ofbusiness at respondent’s Charleston office, two forms
must be received together in order to process a certificate of title for a
motor vehicle. The two forms are a Division of Motor Vehicles Reassignment
Supplement, form TM-5, and an application for a certificate of title for a
motor vehicle.’ After receiving the forms, respondent’s employees review and
process both forms. To continue the processing of the forms, the forms must
contain the identical information. If one of the forms is different from the
other, respondent’s employees must seek clarification from the individuals
tendering the forms. If clarification is not made, the processing of the
certificate of title for the motor vehicle must stop and desist. Once both
forms contain
‘The Division of Motor Vehicles Reassignment Supplement is a form used when
there is a sale between dealers. When the sale is retail, an application for a
certificate of title for a motor vehicle is necessary.
48 REPORTS STATE
COURT OF CLAIMS [W.Va.
the identical information, a certificate of title can be issued for a motor
vehicle.
On May 14, 1996, a customer of claimant bought a 1994 Ford Taurus, VIN #
1FALP52U5RA 109248. The title paperwork was completed and sent by respondent on
June 10, 1996. The necessary forms were sent to respondent’s Charleston office.
Prior to this date, claimant had been in contact with respondent regarding the
title process and had thereafter followed respondent’s instructions. However,
only the Division of Motor Vehicles Reassignment Supplement, WV4 17229,
contained the lienholder information. When the certificate of title paperwork
was processed and the certificate of title was issued, the lienholder
information was not placed on the certificate of title. Subsequently, on
October 6, 1998, Household Automotive Financing Corporation, who bought out
OFL-A Receivables Corporation, attempted to repossess the vehicle only to
discover that the customer had afready traded the vehicle on a previous date.
As a result of not being able to take possession of the vehicle because the
lienholder was not indicated on the title, Household Automotive Financing
Corporation required claimant to repurchase the vehicle loan through proceeds
from another transaction. The resulting fmancial loss to claimant was in the
amount of $9,013.17.
In this claim, respondent clearly failed to follow the proper procedure for
processing and issuing the certificate of title for the motor vehicle. The
failure of respondent’s employees to reasonably follow established rules and
regulations for the processing and issuance of a certificate of title for a
motor vehicle constitutes negligence for which claimant may recover. Thus, the
Court finds that the respondent was negligent in its failure to indicate the
lienholder information on the certificate of title for the motor vehicle.
In view of the foregoing, the Court is of the opinion and does make an award to
the claimant in the amount of $9,013.17.
Award of $9,013.17.
OPINION ISSUED DECEMBER 6, 1999
JOSEPH J. BANIAK & MARY V. BANIAK
VS.
DIVISION OF HIGHWAYS
(CC-96-4 19)
Claimant Joseph J. Baniak, appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
W.Va.] REPORTS
STATE COURT OF CLAIMS 49
PER CURIAM:
This claim was submitted to the Court for decision upon a tipulation entered
into by claimant and counsel for respondent wherein certain facts and
circumstances of the claim were set forth as follows:
1. In 1977, respondent completed a construction project on Dents Run Road,
Granville, Monongalia County. This construction project caused continual
flooding problems onto claimants’ real property. In addition, the continuing
flooding damaged a house located on claimants’ real property.
2. As a result of this incident, claimants’ real property and house sustained
damage in the sum of $25,000.00. However, claimants agreed to relinquish and
settle this claim against respondent for the sum of $5,000.00.
3. During the time period in question, respondent bore some responsibility for
not maintaining Dents Run Road, Granville in Monongalia County in a reasonably
safe condition.
4. Respondent agrees that the amount of damages as agreed to by claimants is
fair and reasonable.
The Court has reviewed the facts of this claim as stated in the Stipulation,
and adopts the statement of facts as its own. The Court finds that respondent
was negligent in its maintenance of Dents Run Road, Granville, Monongalia
County during the time period in question; that the negligence of respondent
was the proximate cause of the damages sustained to claimants’ property; and
that the amount of the damages agreed to by the parties is fair and reasonable.
Accordingly, the Court makes an award in the amount of $5,000.00 to claimants.
Award of $5,000.00.
OPINION ISSUED DECEMBER 6, 1999
ROBERT C. BOOKER
VS.
DIVISION OF HIGHWAYS
(CC-98-263)
Shannon M. Bland, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
50 REPORTS STATE
COURT OF CLAIMS [W.Va.
PER CURIAM:
This claim was submitted to the Court for decision upon a tipulation entered
into by counsel for claimant and counsel for respondent wherein certain facts
and circumstances of the claim were set forth as follows:
1. On May 11, 1997, claimant was walking eastbound on U. S. Route 60 across the
Coal River Bridge, near Saint Albans, Kanawha County. As claimant stepped onto
the sidewalk of the bridge, the concrete underneath him gave way and claimant’s
leg went completely through the sidewalk up to his patella.
2. As a result of this incident, claimant sustained a personal injury with
damages in the amount of $9,000.00. However, claimant agreed to relinquish and
settle this claim against respondent for the sum of $4,000.00.
3. On the date of the incident herein, respondent failed to maintain the Coal
River Bridge on U. S. Route 60 in Kanawha County in a reasonably safe
condition.
4. Respondent agrees that the amount of damages as put forth by claimant is
fair and reasonable.
The Court has reviewed the facts of this claim as stated in the Stipulation,
and adopts the statement of facts as its own. The Court fmds that respondent
was negligent in its maintenance of the Coal River Bridge on U. S. Route 60 in
Kanawha County on the date of claimant’s incident; that the negligence of
respondent was the proximate cause of the injuries suffered by claimant; and
that the amount of the damages agreed to by the parties is fair and reasonable.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $4,000.00 to claimant.
Award of $4,000.00.
OPINION ISSUED DECEMBER 6, 1999
CLYDE W. BOYLES
VS.
DIVISION OF HIGHWAYS
(CC-98- 170)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
W.Va.J REPORTS
STATE COURT OF CLAIMS 51
Claimant brought this action for vehicle damage which occurred when his vehicle
struck a hole on Interstate 64, westbound, near the Huntington airport. The
westbound lane of Interstate 64 is maintained by the respondent in Wayne
County. The Court is of the opinion to make an award for reasons more fully
stated below.
The incident giving rise to this claim occurred on April 18, 1998, at
approximately 10:30 p.m. The weather was wet, rainy and dark. Claimant, who is
domiciled in Greenup County, Kentucky, was traveling west on Interstate 64 in
Wayne County. Construction work had commenced on Interstate 64,so traffic was
merged into the left-hand lane and claimant had reduced his vehicle speed to
approximately fifty-five miles per hour. Claimant did not know that there was a
hole on Interstate 64. Without warning, claimant’s 1997 Jeep Cherokee hit the
hole on the interstate. The hole was deep. Immediately, both of the tires on
the driver’s side burst. As claimant made his way to the other side of the
road, he noticed four other vehicles that also had damaged tires. Because two
tires had burst, claimant had to have his vehicle towed. Subsequently,
claimant’s vehicle was towed to the BP station on U. S. Route 23, in Greenup
County, Kentucky. Claimant had a deductible of $500.00 on
his collision insurance coverage. The resulting damage to claimant’s vehicle
was $295.56, for two tires and a tow bill.
Respondent denied liability for the accident in question. Respondent
acknowledges that claimant collided with the hole in the westbound lane of
1-64. However, respondent introduced evidence that a contractor was doing
repair work on this portion of 1-64 on the day in question pursuant to a
contract between respondent and the contractor. The contract between the
respondent and contractor included a “save harmless” provision and the
respondent takes the position that the “save harmless” provision constitutes a
defense to the claim against it. We disagree. We hold that the respondent
cannot avail itself of the protection of a “save harmless” provision in a
contract between the respondent and the respondent’s contractor as against an
injured third party, the claimant, who is not privy to said contract.
A review of the facts in this claim reveals that respondent’s employees who had
a duty to inspect the site conditions of the project failed to protect the
traveling public from a hazardous condition and we hold that this failure
constitutes negligence. In a previous decision, Bailey v. Div. of Highways, (CC-98-146, Opinion issued September 8, 1999). The
Court held that respondent had a duty to inspect the construction site and to
act upon its inspection in a propermanner. Failure to do so was heldto be
negligence.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $295.56 to claimant.
Award of $295.56
52 REPORTS STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED DECEMBER 6, 1999
ROBERT L. BRATTON
VS.
DIVISION OF HIGHWAYS
(CC-98- 169)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage from striking a crown at the
intersection of Pennsylvania Avenue (U. S. 119) and Quarrier Street in
Charleston. Pennsylvania Avenue is a road maintained by respondent in Kanawha
County. The Court is of the opinion to deny this claim for the reasons more
fully stated below.
The incident giving rise to this claim occurred on March 27, 1998, at about 5:00 p.m. After crossing Pennsylvania
Avenue, Quarrier Street becomes Randolph Street. Pennsylvania Avenue is
maintained by the State while Randolph Street is maintained by the City of
Charleston. From Quarrier Street to Randolph Street is one- hundred twenty to
one-hundred thirty feet. As one crosses the intersection at this point,
claimant alleges that there is a pronounced crown on Pennsylvania Avenue, which
caused the damage to his vehicle.
On the clear day in question, claimant was traveling westbound on Quarrier
Street, proceeding to his residence from his place of employment. Claimant was
traveling at the speed limit of thirty miles per hour in his 1962 Austin Healy
3000, a short wheel-based vehicle. As claimant’s vehicle crossed the
intersection of Pennsylvania Avenue and Quarrier Street, his vehicle crossed
the crown on Pennsylvania Avenue and then went nose first into the dip, with
the front of his vehicle striking the surface of the road. The collision caused
claimant’s vehicle to bounce, which in turn caused his forearm to move the gear
shift lever, resulting in the transmission being put into reverse, destroying
the transmission. After the incident, claimant alleges that he pushed his 1,875
pound vehicle to Wyoming Street, approximately one and a halfblocks
W.Va.J REPORTS
STATE COURT OF CLAIMS 53
from Randolph Street’.
Afterwards, claimant inspected his vehicle. Claimant observed that the linkage
was intact but saw scars underneath the vehicle from the impact ofthe road. The
vehicle was insured under a liability insurance policy, but there was no
insurance coverage for this incident. Claimant’s out-of-pocket expenses were
$797.40. Specifically, the expenses reflect a $50.00 towing bill and $747.40 in
repair work to the transmission.
The position of the respondent was that the incident did not occur on a road
that it maintained. An on-site inspection of Pennsylvania Avenue by the chief
inspector for respondent, an eighteen year veteran, revealed that there was no
pronounced crown on Pennsylvania A venue. R ather, there is a p ronounced c
rown o n R andolph Street. According to respondent, Randolph Street starting at
and including Quarrier Street, belongs to the City of Charleston. No changes
have been made to Pennsylvania Avenue since March 27, 1998. Also, there have
been no other complaints regarding a crown on Pennsylvania Avenue.
After a review of the evidence adduced at the June 11, 1999, hearing and a view
of the intersection by the Court, the C ourt i s o f the opinion that there is
a pronounced crown at the intersection in question. However, the change in
grade at this intersection is not unlike other West Virginia roads. While the
Court is sympathetic to claimant’s predicament, the Court is unwilling to
declare the change in grade at the intersection of Pennsylvania Avenue and
Quarrier Street to constitute negligence on respondent’s part. The opinion of
the Court is that the intersection was reasonably maintained. Respondent can
not be required to build West Virginia roads to suit specialty vehicles such as
that of claimant. Otherwise, a undue burden would be placed on the State.
Consequently, there is insufficient evidence ofnegligence on which to base an
award.
In view of the foregoing, the Court hereby denies this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 6, 1999
J. CHRISTOPHER BURKET
‘While claimant contends that he was at this location, the receipt from the
towing bill states that the location of the vehicle was at the intersection of
Ohio and Wyoming Streets, which are streets maintained by the City of
Charleston.
54 REPORTS STATE
COURT OF CLAIMS [W.Va.
VS.
DIVISION OF MOTOR VEHICLES
(CC-99-282)
Claimant appeared pro Se.
Joy M. Cavallo, Attorney at Law, for respondent.
PER CURIAM: This claim was submitted to the Court for decision upon a
tipulation entered into by claimant and respondent wherein certain facts and
circumstances of the claim were set forth as follows:
1. On April 4, 1998, claimant J. Christopher Burket purchased a 1995 Yamaha
motorcycle represented to have a clear certificate of title issued by
respondent. Upon returning to Pennsylvania, claimant attempted to obtain a
certificate of title issued in Pennsylvania. The State of Pennsylvania would
not issue claimant a certificate of title because the motorcycle had been
previously “junked” in Pennsylvania. Eventually, the State of Pennsylvania did
issue a certificate of title, but the certificate of title reflected a
reconstructed certificate of title, indicated by a “R” on the certificate of
title. The reconstructed certificate of title decreased the value of the
motorcycle to one-half the blue-book value.
2. As a result of this incident, claimant sustained damage in the sum of
$5,035.20. However, claimant agreed to relinquish and settle this claim against
respondent for the sum of $2,500.00.
3. Respondent maintains and produces certificates of titles for motorcycles and
on the date of the incident herein, respondent failed to follow established
reasonable procedures in the issuance of the certificate of title for
claimant’s motorcycle.
4. Respondent agrees that the amount of damages as set forth in the settlement
is fair and reasonable.
The Court has reviewed the facts of the claim as stated in the Stipulation, and
adopts the statement of facts as its own. The Court finds that respondent was
negligent in its production of the certificate of title for claimant’s
motorcycle; that the negligence of respondent was the proximate cause of the
decrease in the value of claimant’s motorcycle; and that the amount of the
damages agreed to by the parties is fair and reasonable. Accordingly, the Court
makes an award in the amount of $2,500.00 to claimant.
Award of $2,500.00.
W.Va.J REPORTS
STATE COURT OF CLAIMS 55
OPINION ISSUED DECEMBER 6, 1999
BEULAH BURKHAMMER, AS EXECUTRIX
OF THE ESTATE OF OKEY LOWTHER
VS.
DIVISION OF HIGHWAYS
(CC-95-307)
DORA TALI3OTT
VS.
DIVISION OF HIGHWAYS
(CC-95-308)
Stephen F. Gandee, Attorney at Law, for claimants.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for respondent.
STEPTOE, JUDGE:
In each of these cases the claimant seeks an award from the Division of
Highways (hereinafter the “State”), alleging that the State was negligent in
the design, construction, and maintenance of the intersection, in Gihner
County, West Virginia, of two public roads, U.S. Route 33 and W. Va. 47, and
that as a result of the State’s negligence, Okey Lowther was killed in a
two-car collision, and his sister, Dora Talbott, received permanent injuries.
The Court ordered that the two cases be consolidated for hearing, which began
on the 6th
day of April, 1999, at Flatwoods, West
Virginia, on the issue of liability only.
U.S. 33, broadly speaking, is a road which runs north and south in West
Virginia, and W.Va. 47 runs east and west. The easterly end of W.Va. 47 is U.S.
33 so neither road crosses the other, and their meeting place might be
termed a
intersection.
The intersection is in a rural area, but there are a country market and a
filling station on the easterly side. U.S. 33 is the right of way road,
with the pavement being 26 feet wide with a good base and shoulders and is
asphalt covered with a double yellow line designating the middle of the paved
area. W.Va. 47 is asphalt covered but is less wide.
The opening ofW.Va. 47 into U.S. 33 is spacious, the intersection having been
redesigned and reconstructed in 1983.
The accident took place at about 2:35 p.m. on Tuesday, the 22” day of November, 1990. The
pavements were slightly wet, but there was no evidence that
56 REPORTS
STATE COURT OF CLAIMS [W.Va.
water on the surfaces of the roads was a factor in producing the collision. The
air was clear except for a light rain; no other vehicles were involved in the
accident.
The 1989 Pontiac LeMans, owned and operated by Mr. Lowther, and also occupied
by Mrs. Talbott, who was seated on the right side of the front seat, had been
approaching from the west, and the driver intended, upon entering the
intersection, to make a left turn into the northbound traffic lane of U.S. 33
and to proceed in a northerly direction towards Weston, their destination. The
evidence preponderates that Mr. Lowther stopped where he was supposed to stop,
near a “stop sign” in the southwest quadrant of the intersection, which was
intended to bring eastbound drivers to a stop to look for other vehicles
approaching the intersection on U.S. 33, from each direction, before entering
the intersection.
At about the same time a 1975 Chevrolet Camaro, owned and operated by Charles
K. Paxson (hereinafter “Paxson”), was proceeding southwardly on U.S. 33 at a
speed of or slightly less than the posted speed limit of55 miles per hour. His
front seat passenger was his wife, and their infant daughter was in the back
seat, well secured. He was not required by traffic signs to reduce his speed in
the intersection.
There were no known eyewitnesses to the accident except for the drivers and the
occupants of the two vehicles.
Shortly after the collision, Senior Trooper Michael Robinson, of the West Virginia
State Police, arrived on the scene and became the investigating officer. The
two damaged vehicles then were in the positions in which they had come to rest
after the collision, and the Trooper was able to trace the movements of the two
vehicles between the place of collision and the places at which each came to
rest. He was also able to identify the point of impact of the two vehicles by
some gouge marks in the surface of the road in the intersection, in the
southbound traffic lane, probably near the center. He inspected the Lowther
vehicle and determined that the point of initial impact was the left front of
the vehicle; the point of initial impact of the Paxson vehicle was its front.
Neither driver was cited by Trooper Robinson, who, however, was not satisfied
with Mr. Paxson’s statement that immediately before the accident he, Mr.
Paxson, was driving between 50 and 55
miles per hour, and he later asked for the assistance and advice of an accident
reconstructionist, Trooper Leonard Miller, a trained and qualified accident
reconstructionist with three years experience, who testified at the hearing as
an expert witness.
Trooper Miller, at some time before or after making his investigation at the
scene of the accident, had an opportunity to examine the damaged Paxson car
(the Lowther car was not available), and upon the basis of the measurements of
its damaged sections, to give a professional opinion that at the time of its
collision with the Lowther car, the speed of the Paxson car “could not have exceeded
the posted 55 mile an hour
W.Va.J REPORTS
STATE COURT OF CLAIMS 57
speed limit.”
Early in May 1991, Trooper Miller and Trooper Robinson met at the scene of the
accident and made measurements of sight distances, from the point at the
intersection at which drivers intending to enter U.S. 33 from W.Va. 47 actually
stopped to determine whether any vehicles were approaching the intersection, on
U.S. 33, from the north or from the south, and when it might be safe to enter U.s.
33. One trooper seated himself in his cruiser (#1), at that point, while the
other trooper took his cruiser (#2), to a position on U.S. 33 north of the high
point on a vertical curve in the surface of the pavement of U.S. 33, a position
which was out of sight of the trooper in cruiser #1; then cruiser #2 was driven
slowly southbound until the bank of lights on the roof of cruiser #2 was
visible to the trooper in cruiser #1, and the point of first visibility was
determined to be 447.50 feet from the trooper in cruiser #1; cruiser #2 was
driven southward and downward until its wheels were visible on the pavement;
Trooper Miller cautioned, however, that the sight distance between the Lowther
car and the Paxson car when the Paxson car first became partially visible to
Mr. Lowther on the day of the accident would be a little less than 447.50 feet
because of the bank of lights on top of cruiser #2, and opined, as did
Lance Robson, hereinafter identified, the sight distance of Mr. Lowther was
probably 430 feet.
Trooper Miller also measured the distance between the point at which the
Lowther car was probably brought to a dead stop before entering U.S. 33, and
the point of collision of the two cars on U.S. 33, and found said distance to
be 38.33 feet; and he testified that it would have taken Mr. Lowther 1.9
seconds to go that distance from a dead stop, not counting reaction time.
Lance Robson, a registered professional civil engineer, from Lancaster,
Pennsylvania, called by the claimants, and qualified before the Court as an
expert in the fields of highway construction design and of accident
reconstruction, visited the scene of the accident on December 6, 1993, and at
the hearing of this case he testified that the area of U.S. 33 hereinbefore
described as the vertical curve north ofthe intersection, but which he said
should be called a vertical crest curve, was “a little bit lower or pretty much
just on” the specification of the construction plans of 1982 ... and “The worst I found was that at one point it was a
hundredth of a foot higher, so I concluded that the road had been built in
accordance with the plans.” Mr. Robson used a photograph which he took probably
on December 6, 1993, from a point at the intersection northward where he
testified drivers intending to enter U.S. 33 from W.Va. 47 would stop before
entering U.S. 33, to look for approaching traffic on U.S. 33, northward toward
the vertical curve on U.S. 33. He testified that the camera lens height was
3’6” from ground level, and that he saw the roof of a car at the vertical crest
curve which was four feet, six inches above ground level, and that the sight
distance between the two points was 430 feet.
58 REPORTS STATE COURT OF CLAIMS [W.Va.
Mr. Robson explained that his investigation and survey of the intersection led
him to the conclusion that the intersection had been constructed in accordance
with the plans and specifications as provided by respondent to the construction
contractor. He noted that the plans contain a note stating that the “design
speed” was 40 miles per hour. At the scene he noted that the posted speed limit
was 55 mile per hour. This appeared to be inconsistent to him so he took
his measurements for determining the sight distance for the driver entering the
intersection from W.Va. 47 and looking left for oncoming traffic approaching
from the north on U.S. 33 in order to determine if the sight distance was
sufficient if oncoming traffic was approaching at the posted speed limit. It is
his opinion that the intersection should have been designed for a speed greater
than the posted speed limit, and since it was not constructed based upon that
criterion, the sight distance at this intersection “is inadequate for the
operating speed by a substantial amount.” After explaining that Mr. Lowther was
at the “point of no return” in his decision-making process of making the left
turn onto U.S. 33, Mr. Robson opined that the design criterion at 40 miles per
hour was the wrong criterion and it should have been designed based upon 60
miles per hour, and since the intersection was already constructed, the cure
for the problem would be additional signs to warn the drivers approaching the
intersection on U.S. 33 at a posted speed of 55 miles perhour or a lower speed,
of the proximity of the intersection.
Matthew DiGiulian, a civil engineer employed by the Division of Highways,
testified that he received a request from a superior about one year before the
hearing of these cases, to review the construction plans for the Linn
Intersection work, which was completed about 1988, to see if an adequate sight
distance was provided for a driver intending to enter U.S. 33 from W.Va. 47,
with particular reference to vehicles approaching from the north on U.S. 33. He
determined that the plans provided a sight distance, from the intersection to
the top of the vertical curve north of the intersection, of 430 feet,
which was sufficient, according to the requirements of the American Association
of State Highway and Transportation Officials (AASHTO) Blue Book of 1965 for a
road with a speed limit of 40 miles per hour, but insufficient for a road on
which the speed limit is 45 miles per hour. He did not go to the site of the
accident. When asked about the difference between design speed and posted
speed, he said they are different and that different criteria are used for
speed limits.
The troopers and Mr. Robson differed as to the time it would have taken Mr.
Lowther to clear the southbound lane of U.S. 33 starting from a dead stop where
drivers intending to enter make their surveillance of U.S. 33 for other
vehicles approaching the intersection from the north or south, Trooper Miller
testifying that the time was 1.9 seconds from start-up to instant of collision
over a distance of some 38.33 feet, and Mr. Robson putting the time at 4 to 5
seconds (the Court will assume that he would not
W.Va.J REPORTS
STATE COURT OF CLAIMS 59
disagree with 4 ‘/ seconds).
The question is: How many feet was the Paxson car from the collision point at
the instant when Mr. Lowther from a dead stop at the mouth of W.Va. 47, put his
car in motion to cross the southbound traffic lane of U.S. 33?
Trooper Miller correctly testified that a vehicle going 60 miles per hour will
cover 88 feet in one second (5,280 60 = 88).
A mile is by definition 5280 feet, and a car driven at 60 miles per hour will,
in one second, go 88 feet (5,280 ÷ 60),
as Trooper Miller testified, and a car driven at 55 miles per hour will, in one
second, go 80.663 feet (81 feet, as rounded off by Mr. Robson).
The answer lies in a simple calculation of how many feet the Paxson car
traveled, at 55 miles per hour, in 4.5 seconds, (4.5
x 80.663 = 362.983 feet, or 363 feet rounded off).
Hence, at 363 feet from the collision point the Paxson car was well within Mr.
Lowther’ s sight distance of430 feet, from the time Mr. Lowther made his move
until the instant of collision.
The Court concludes that Mr. Lowther was negligent in entering U.S. 33 from
W.Va. 47 when the Paxson car in the southbound lane was approaching the
intersection, and that Mr. Lowther’s negligence was the proximate cause of the
accident in which Mr. Lowther was killed and Mrs. Talbott was injured.
Claimants, however, without conceding that Mr. Lowther’ s negligence was the
proximate cause of the accident, contend that the State was negligent and that
its negligence was the proximate cause, or a proximate cause ofthe accident
resulting in the death of Mr. Lowther and in the injuries sustained by Dora
Talbott.
Specifically, each claimant makes the following allegations:
1. The West Virginia Department of Highways owed to the said Dora Talbott and
Okey Lowther and to other members of the traveling public a duty to design,
construct and maintain the highway in such manner so as to protect the said
Dora Talbott and Okey Lowther and the traveling public against unreasonable
risk of injury.
The said intersection of U.S. Route 33/119 and U.S. Route 47 was negligently
and carelessly designed, constructed and maintained by the West Virginia
Department of Highways in such a manner as to require a vehicle, traveling east
on Route 47 such as were the said Dora Talbott and Okey Lowther, to enter Route
33/119 at such a degree and angle so as to create an unreasonable risk and
safety hazard and prevent a motorist from having sufficient visibility
distances to enter the said roadway in a safe fashion.
The said design, construction and maintenance of the intersection by The West
Virginia Department of Highways negligently created such appurtenances and
environmental barriers which unreasonably and dangerously inhibited the sight
distances
60 REPORTS STATE
COURT OF CLAIMS [W.Va.
needed to safely enter into the intersection and unreasonably inhibited the
free flow of roadway traffic.
2. The West Virginia Department of Highways owed a duty to the said Dora
Talbott and to Okey Lowther and to other members ofthe traveling public for the
proper and safe placement and operation of traffic control signals at the
intersection of U.S. Route 47 and U.S. Route 33/119.
3. At the time of the collision, The West Virginia Department of Highways
negligently and carelessly failed to place and maintain adequate traffic
control signs at the intersection on U.S. Route 33/119 and U.S. Route 47.
4. At the time ofthe collision, the West Virginia Department of Highways, was
aware and had knowledge that numerous other automobile accidents had occurred
at the said intersection since its design, construction and completion and the
West Virginia Department of Highways negligently and carelessly failed at any
time to take corrective action to prevent further such automobile accidents
from occurring.
5.
The West Virginia Department of
Highways further negligently and carelessly failed to place and maintain
adequate warning signs about that roadway surface upon which the vehicle in
which the said Dora Talbott and Okey Lowther and other motorists traveled that
the roadway may be adversely affected when subject to certain weather
conditions.
The allegations will be addressed, seriatim:
1. Appurtenances and enviromnental
barriers were created by the State in the design, construction and maintenance
of the intersection of U.S. 33 and W.Va. 47 and the approach of U.S. 33 to the
intersection.
No evidence was submitted at the hearing to support this allegation, and the
Court fmds as a matter of fact that the State was not negligent as alleged, in
this respect.
2. The State failed to install and maintain a traffic control signal at the
intersection. Charles Raymond Lewis, II, a registered professional engineer of
the Traffic Engineering Division of the Division of Highways, who had been so
employed since 1971, testified that, “By definition, a traffic signal is a
traffic control device that alternately assigns the right of way. It’s an
electrical device that alternately assigns the right of way.”
Mr. Lewis opposed placement of a traffic control signal at the intersection,
because the intersection seemed to operate very well without it. Had he thought
there was enough traffic to justify consideration of such a signal, he
testified, he would have consulted the Manual on Uniform Traffic Control
Devices (MUTCD) to determine if a traffic control signal should be placed at
the intersection. The Manual, he testified, sets forth criteria for the signal,
called warrants, and if a signal is proposed, it must have sufficient warrants,
and if a signal is in place and does not have sufficient warrants, the
W.Va.J REPORTS
STATE COURT OF CLAIMS 61
signal should be removed. Mr. Lewis testified that a signal for the Linn
Intersection did not have enough warrants - “it
wasn’t close”. The Court fmds as a matter of fact that the State was not
negligent in failing to place and maintain a traffic control signal at the
intersection. See Gibson v. Division
of Highways, 19 Ct.Cl. 206 (1993).
3. The State failed to place and maintain adequate traffic control signs at the
intersection of U.S. 33 and W.Va. 47, and their approaches.
The evidence adduced at the hearing on these complaints indicates that the
State, on the date of the accident, was in compliance with the 1978 MUTCD and
with the State’s own design guide.
Mr. Lewis, testified that there are three types of traffic control signs on
public roads:
a) regulatory signs;
b) warning signs; and
c) guide signs
The first sign on U.S. 33 that Paxson would have seen was a notice that the
driver is approaching a junction with W.Va. 47;
The second sign on U.S. 33 that Paxson would have seen was a 7 ‘/2 foot by 2 ‘/2 foot
guide sign, a green and white assembly giving major destinations, in this case
Glenville on U.S. 33 and Burnt House on W.Va. 47; and
The last sign, called a Final Turn Assembly, was a guide sign, and informed the
approaching driver in which lane he should be if intending to continue on U.S.
33, and which lane he should take if intending to leave U.S. 33 and to turn
right onto W.Va. 47.
Mr. Lewis also testified as to traffic signs in place on W.Va. 47, immediately
before the accident, notifying a driver driving from the west that he was
approaching
U.S. 33.
a) the first sign was an assembly sign ofajunction ahead with U.S. 33 (and U.S.
119), and that W.Va. 47 would end at that junction;
b) the second sign was a 7 V2 foot by 2 ‘/2 foot
green and white guide sign informing the driver approaching from the west that
at the end of W.Va. 47, if he wished to go toward Weston, he should make a left
turn on U.S. 33, and if he wished to go to Glenville, he should make a right
turn into U.S. 33;
c) the third sign was a stop sign, informing the driver approaching U.S. 33
from the west that he must stop and that traffic already on U.S. 33 has the
right of way and that he does not have the right of way; and
d) the fourth sign was a fmal turn assembly sign, indicating to drivers on
W.Va. 47 the number designations of roads available to him at the intersection
and what direction to follow.
All seven of the foregoing signs were guide signs except the stop sign, which
62 REPORTS STATE
COURT OF CLAIMS [W.Va.
was classified as a regulatory sign. There were no warning signs, the State’s
position having been that the described traffic control signs on U.S. 33 and
W.Va. 47 were sufficient to notif,’ approaching drivers of the imminence of the
intersection. Mr. Lewis testified that at one time the MUTCD provided for a
limited sight distance sign, but it was taken out of the Manual (a singular
event in Mr. Lewis’ memory) and, to the best of his knowledge it was because
the public did not understand it.
The Court fmds as a matter of fact that the State erected and maintained signs
on the approaches to the intersection on U.S. 33 and W.Va. 47; and that its
failure or refusal to erect a special “limited sight distance” on U.S. 33 to
warn southbound drivers was not a negligent act. See Gibson v. Division of Highways, Id.
4. The State failed, while on notice
of an elevated number of accidents at the intersection, to take corrective
action to prevent such accidents from occurring.
Claimants rely upon records of the State ofreports of motor vehicle accidents
at this intersection (at point designated as 26.86, a mile post). Mr. Lewis
testified as to two reports in the record designated as Claimants’ Exhibit No.
10, and read the kinds of engineering data provided in the reports.
The first report of accidents, covering the period from October 1, 1983 to
October 31, 1986, in which there were ten listed accidents, is as follows:
Linn Intersection Accidents
10/1/83 -
10/31/86
10/29/83
7/15/84
3)cLi
|
heading south
straight heading north then heading west stopped in |
|
10/29/83 |
|
2) Carl Car2 |
|
heading north, entering or leaving heading west - going straight ahead driveway, circumstances unknown |
W.Va.J REPORTS STATE COURT OF CLAIMS 63
3/5/86
8) Truck
|
|
heading west then turning left, circumstances unknown |
heading south going straight ahead - no improper driving |
|
|
9/11/84 |
|||
|
4) cLi |
|||
|
hit tree no special reference - foggy heading east going straight ahead |
none involved |
|
|
|
9/25/84 |
|||
|
5) Motorcycle |
|||
|
|
|||
|
heading south, going straight ahead - heading east then turning left circumstances unknown |
|||
|
2/5/85 |
|||
|
heading east
going straight ahead -
heading north |
|||
|
9/22/85 |
|||
|
7)Motorcycle Truck |
|||
|
heading west
going straight ahead -
heading east- then turning left- |
|||
64 REPORTS STATE COURT OF CLAIMS [W.Va.
The second report
of accidents, covering the period from 1/1/87 to 1/22/90, in which there were
seven listed accidents at the Linn Intersection, Mile Post 26.86, is as
follows:
Linn Intersection Accident Listings
1/1/87 -
1/22/90
1/12/87
|
heading south going straight ahead - did not have right of way |
heading west going straight ahead - no improper driving |
|
8/1/86 |
|
|
9)cLi |
LZ |
|
heading west going straight ahead - no improper driving |
heading north going straight ahead - no improper driving |
|
10/22/85 HEAD-ON COLLISION |
|
|
i°)cri |
Z |
|
heading west going straight ahead |
heading east, going straight ahead - no improper driving |
|
1)c__i |
cL |
cr |
|
heading east going |
heading south going |
heading west slowing or |
|
straight ahead - no |
straight ahead - did not |
stopping - no improper |
|
improper driving |
have right of way |
driving |
W.Va.J REPORTS STATE COURT OF CLAIMS 65
In an internal working memorandum, an intersection safety study, prepared by Mr. Lewis for his management in the Traffic Engineering Division, dated June 2, 1988
|
1/21/87 |
|
|
2) Carl Car2 |
|
|
side swipe - heading west - going
heading west going straight ahead - |
|
|
3)cL! LZ |
|
|
heading east going straight ahead - circumstances unknown |
heading north then turning left - circumstances unknown |
|
6/9/88 |
|
|
3/2 0/8 9 |
|
|
5)Li |
LZ |
|
heading south then turning left - did not have right of way |
heading east going straight ahead - no improper driving |
|
11/22/90 |
|
|
6) Carl (sic). |
Car2 |
|
heading west
going straight ahead- |
heading south
then turning left |
66 REPORTS STATE
COURT OF CLAIMS [W.Va.
(Claimants’ Exhibit No. 12), he reported on his inspection of the Linn
Intersection on May 24, 1988, that:
“During the three-year data period there were six accidents at the intersection
for a rate of 3.37 accidents per million entering the intersection. Five of the
six accidents were ‘at angle’ and one involved a left turn. There was no
consistency or pattern to the ‘at angle’ accidents.
“A field review of the intersection on May 24, 1988, revealed only minor
deficiencies. The length of the stop bar on WV 47 is not adequate and the
centerline on WV 47 is worn Out at the intersection. The stop bar should be extended
and the centerline possibly installed with lane tape.
“The intersection is on a crest and drivers exiting WV 47 cannot see the
pavement to the east [northj on US 33. Sight distance to approaching vehicles
is adequate. Other than renewal of the pavement markings as indicated above, no
action is recommended.”
The listings of 16 accidents at the intersection on which claimants base their
complaint about the high rate of accidents use the rate of accidents as a
reason for concluding that it was dangerously and negligently constructed, and
maintained, is not supported by the statistics ofthe Traffic Engineering
Division in Claimants’ Exhibit No. 13, which show that of the accidents:
1 case in which the driver changed lanes improperly
8 cases in which the circumstances were unknown
1 case in which the driver hit a tree
1 case in which the accident was attributed to slippery pavement
4 cases in which the drivers did not have the right of way, and
1 case in which the vision of each driver was obstructed (this case)
The Court finds as a matter of fact that the statistics on the accidents at the
intersection from October 1, 1983 to January 22, 1990, do not prove that before
January 22, 1990, the Linn Intersection was dangerously and negligently
designed, constructed and maintained, and that the State was not negligent in
failing to correct alleged errors.
5. The State failed to advise, by signs along U.S. 33 and W.Va. 47 in the
vicinity of the Linn Intersection, that weather conditions might affect motorists
adversely. There is no evidence that water on the surface of the roads in the
intersection was a causative factor in the accident.
As to the claimants’ allegation (which was not made in their respective
complaints or in any amended complaints) that respondent was negligent in the
design of the intersection, based upon the fact that the intersection was
designed for a 40 miles per hour speed but was posted for a speed limit of 55
miles per hour, the Court has determined that design speed does not control the
posting of a speed limit. According
W.Va.J REPORTS
STATE COURT OF CLAIMS 67
to Mr. Lewis, design speed is a number to provide certain parameters to be met
for putting the road together, i.e., providing a set of criteria for the
geometric design of the highway. On the other hand, setting the speed limit is
a regulatory function for the Commissioner of Highways. The Commissioner bases
this decision for the speed limit upon recommendations made by traffic
engineering technicians who have analyzed data collected in the field. It is
not unusual in West Virginia for the speed limit to exceed the design speed,
and design speed, in most cases, is not known to the traveling public.
The Court fmds that the State was not negligent in posting a speed limit of 55 miles per
hour for U.S. 33 at this area notwithstanding the fact that the plans denote a
design speed of 40 miles per hour in the area.
The Court also fmds as a matter of fact that the sole cause of the death of
Okey Lowther and of the injuries sustained by Dora Talbott was the negligence
of Okey Lowther in entering U.S. 33 in the face of oncoming traffic having the
right of way.
The Court also fmds as a matter of fact that the State was not guilty of any
negligence proximately causing, in whole or in part, the death of Okey Lowther
and the injuries sustained by Dora Talbott.
The Court makes no award to Beulah Burkhammer, as Executrix of the Estate of
Okey Lowther.
The Court makes no award to Dora Talbott.
Claims disallowed.
OPINION ISSUED DECEMBER 6, 1999
CAMC DENTAL CENTER
VS.
DIVISION OF JUVENILE SERVICES
(CC-99-374)
Claimant appeared pro Se.
C. Scott McKinney, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondents Answer.
Claimant seeks $1,159.00 for providing dental services to a juvenile at
68 REPORTS STATE
COURT OF CLAIMS [W.Va.
respondent’s West Virginia Industrial Home For Youth. The documentation for
these services was not processed for payment within the appropriate fiscal
year; therefore, claimant has not been paid. In its Answer, respondent admits
the validity of the claim as well as the amount, and states that there were
sufficient funds expired in the appropriate fiscal year from which the invoice
could have been paid.
Accordingly, the Court hereby makes an award to claimant in the amount of
$1,159.00.
Award of $1,159.00.
OPINION ISSUED DECEMBER 6, 1999
ROY J. CUNNINGHAM
VS.
DIVISION OF CORRECTIONS
(CC-98-239)
Claimant appeared pro se.
Joy M. Cavallo, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for an unauthorized monetary ithdrawal from his
prison trust account at the Mt. Olive Correctional Center, a facility owned and
operated by respondent in Fayette County. Claimant is currently incarcerated at
this correctional center. The Court is of the opinion to make an award in this
claim for the reasons more fully stated below.
Pursuant to West Virginia Code Section 28-5-6, a warden has a duty to receive
and take charge of an inmate’s financial funds during the inmate’s term of
incarceration. In fulfilling this legislative mandate, the warden at Mt. Olive
Correctional Center employed several shopkeepers to operate a cooperative
exchange at the institution. Before funds are withdrawn from a prison trust
account, an inmate must present the inmate’s photographic institutional
identification card to the storekeeper upon appearance at the store window. The
transaction is processed and the inmate must then sign a sales receipt.
The incident giving rise to this claim occurred on or about Saturday, March 7,
1998. On the day in question, claimant had the sum of $1,364.96 in his prison
trust account. C laimant went to the cooperative exchange, presented his
photographic
W.Va.J REPORTS
STATE COURT OF CLAIMS 69
identification card, made a purchase in the amount of $45.92,
and signed a sales receipt. After this transaction, claimant made no further
transactions with the facility’s cooperative exchange during the week. However,
on Sunday, March 8, 1998, respondent’s employees allowed an unidentified third
party to make a withdraw in the amount of $74.24 at the facility’s cooperative
exchange. Payment for the unidentified third party’s purchase was deducted from
claimant’s prison trust account. Apparently, claimant’s name was forged on the
sales receipt. Thereafter, claimant has attempted and has been unsuccessful in
obtaining reimbursement for the unauthorized transaction.
When property of an inmate is recorded for the inmate and taken for storage
purposes, this Court has previously viewed such situations as a bailment. Heard vs. Division of Corrections, 21 Ct. Cl. 151(1997); Nolan vs. Division of Corrections, 19 Ct. Cl. 89 (1992). According to Black Law Dictionary, a
bailment is:
“A delivery of goods or personal property, by one person (bailor) to another
(bailee), in trust for the execution of a special object upon or in relation to
such goods, beneficial either to the bailor or bailee or both, and upon a
contract, express or implied, to perform the trust and carry out such object,
and thereupon either to redeliver the goods to the bailor or otherwise dispose
of the same in conformity with the purpose to the trust. The bailee is
responsible for exercising due care toward the goods.” id 95 (6th ed. 1990).
Consequently, respondent, the bailee, must have satisfactory documentation for
management of the prison trust account for an inmate, the bailor.
In this present claim, claimant has established a prima facie case of bailment
and negligent management of his prison trust account. The evidence adduced at
the October 7, 1999, hearing demonstrated that there was a required delivery of
claimant’s financial funds to respondent. Respondent failed reasonably to
account for claimant’s prison tnist account on March 8, 1999. Therefore, the
Court concludes that there was a bailment situation and respondent was
negligent in the manner in which it managed claimant’s prison trust account.
In view of the foregoing, the Court is of the opinion to and does make an award
in the amount of $74.24 to claimant.
Award of $74.24.
OPINION ISSUED DECEMBER 6, 1999
FRED L. DONATO
70 REPORTS STATE
COURT OF CLAIMS [W.Va.
VS.
DIVISION OF HIGHWAYS
(CC-98-335)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred s a result of
a negligently maintained berm while traveling northbound on Route 35, McGraws
Run
Road, in Valley Grove, one-half mile north of Atkinson’s Crossing Road. Route
35 is
a road maintained by respondent in Ohio County. The Court is of the opinion to
make
an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on September 14, 1998, at
approximately 9:30 to 10:00 a.m. On the sunny morning in question, claimant was
proceeding southbound on Route 35, McGraws Run Road, en route to a construction
site in his 1983 Ford 800 truck. At this location, Route 35 narrows from
eighteen feet to sixteen feet and two inches. However, the southbound lane is
only six and one-half feet wide. Earlier in the morning, claimant had traveled
to Wheeling by a different road, but was proceeding back to the construction
site on Route 35 because it was the shorter distance. Claimant had not been on
the road since repairs had been made to the road. As claimant drove around a
curve in the road, he was met by an oncoming truck. Claimant was forced to
drive to the right when his vehicle dropped off of the edge ofthe pavement
because of the width of the road. Claimant’s vehicle then slid off the road,
went into a ditch, and hit the guardrail on the side of the road. After the
incident, claimant used a cell-phone in his vehicle to telephone for a tow
truck and the towing service in turn notified the Ohio County Sheriffs
Department. A member of the Ohio County Sheriffs Department, Cpl. Stephen
Bowers, was the first to arrive on the scene and conducted an investigation. In
addition, claimant had a camera in his vehicle and took photographs of the
scene.
After claimant’s truck was removed from the ditch, claimant drove his truck to
his residence. The vehicle sustained extensive damage to its front end. The
vehicle was not repaired; the estimated cost of repair was $3,807.22. Also,
claimant sustained a losses in the amount of $125.00 for tow truck service and
$15.00 to receive a copy of the Ohio County Police Department report that was
filed. The total loss sustained by claimant was in the amount of $3,947.22.
Claimant did not have collision damage insurance on his truck.
This Court has been consistent in opinions involving berm claims. In Sweda
W.Va.j REPORTS
STATE COURT OF CLAIMS 71
vs. Department of Highways, this Court held:
“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.” Id. 13 Ct. Cl. 249 (1980)(citing 39 Am. Jur.
2d “Highways, Streets, and Bridges” §
488).
When a motorist uses the berm of the road in an emergency situation, that
motorist may be entitled to recover damages if the berm is not properly
maintained by respondent. Meisenhelder vs. Department of Highways, 18
Ct. Cl. 80 (1990).
In this claim, the Court is of the opinion that the berm on Route 35, McGraws
Run Road, at the location of claimant’s incident, was not maintained properly
by respondent and created a hazard to the traveling public. Both the
photographic evidence presented by claimant and the Ohio County Sheriffs
Department Police accident report establish that the road was not wide enough
for two vehicles to pass each other without using the berm. If claimant had not
proceeded to the berm of the road, any subsequent accident would have been his
fault. Thus, claimant did not enter the berm of the road by his own choice.
Claimant was forced off the road at the moment he was confronted by the
oncoming truck. The negligent maintenance of the berm on Route 35 was the
proximate c ause o ft his in cident for which c laimant may recover for the
damage sustained to his truck.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $3,947.22.
Award of $3,947.22.
OPINION ISSUED DECEMBER 6, 1999
RICHARD J. GANNON, SR., & MARY ELLEN GANNON
VS.
DIVISION OF HIGHWAYS
(CC-98-3 12)
Claimants appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
72 REPORTS STATE
COURT OF CLAIMS [W.Va.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred as a result of
claimants’ vehicle striking a piece of concrete curb while claimants’ son was
driving their vehicle westbound on W.Va. Route 60 in Kenova, Wayne County.
W.Va. Route 60 is a road maintained by respondent in Wayne County. The Court is
of the opinion to deny this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on August 21, 1998, at
approximately 4:00 p.m., when claimants’ son, Billy Gannon, and a friend of his
son, Chad D. Chaffm, were traveling westbound on W.Va. Route 60 at the corner
of gth
Street in Kenova, Wayne County. W.Va.
Route 60 is a four lane highway, with each side being thirty-four feet including
a distance of nine feet to the curb. On the clear day, claimants’ son and his
friend were proceeding in the right hand lane, the slow lane, at a speed of
thirty miles per hour in claimants’ 1998 Ford Mustang GT.
For the past several months, there had been a piece of concrete curb on W.Va.
Route 60. This piece of concrete curb had been along the edge of the road.
However, on the day in question, the piece of the curb was partially laying in
the road, off to the side, beyond the white line about five inches. The piece
of concrete curb was around a parking area to the right of the white line. As
claimants’ son came upon the piece of concrete curb, he was unable to maneuver
the vehicle to avoid it because the traffic on the road prevented evasive maneuvering.
Claimants’ vehicle collided with the piece of the concrete curb, which twisted
around and slid under the vehicle. After the incident, claimants’ vehicle went
up against the side walk. The resulting damage to claimants’ vehicle was $557.72, for
a tire, rim, and repair to the rocker panel. Claimants’ collision coverage
policy had a deductible feature in the amount of $500.00.
Respondent contends that it was not responsible for the damage to claimants’
vehicle. Respondent had no record of any complaints regarding the area ofW.Va.
Route 60 for which it is responsible. Respondent’s crews patrolled the location
in question, but found nothing. According to respondent, it maintains the area
from curb to curb, from the pavement of the left edge to the pavement of the
right edge. The curb is the responsibility of the city. Anything from the curb
inside to the sidewalk is maintained by the city.
The Court has determined that respondent was not negligent in this claim. The
right hand lane was wide enough for a driver traveling at a reasonable speed to
go around any object. The Court is of the opinion that claimants’ son should
have been able to maneuver the vehicle around the concrete curb. Since the
Court fmds no negligence on the part of respondent, claimants may not recover
for the loss sustained to the vehicle.
In view of the foregoing, the Court is of the opinion to and does deny this
W,Va.] REPORTS
STATE COURT OF CLAIMS 73
claim.
Claim disallowed.
OPINION ISSUED DECEMBER 6, 1999
THOMAS F. GARDNER, JR.
VS.
DIVISION OF CORRECTIONS
(CC-99-29 1)
Claimant appeared pro Se.
Joy M. Cavallo, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for the loss ofhis personal roperty by
respondent’s employees while in the custody of respondent. Claimant is
currently a resident of Harrison County, but at the time of the incident he was
incarcerated in respondent’s facilities. The Court is of the opinion to make an
award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on or about February 8, 1994,
at approximately 3:30 p.m. On the day in question, claimant was incarcerated at
the Moundsville Penitentiary. At the time, claimant’s personal belongings were
seized and documented by Officer Richard S. Strope Included in claimant’s
personal belongings were a wedding band, engagement ring, bracelet, West
Virginia logo pendant, and a Sony walkman radio with headphones. Claimant’s
personal belongings were then transferred to another one of respondent’s
employees at Moundsville Penitentiary. During claimant’s period of
incarceration, both he and his personal property were to be transferred to the
Huttonsville Correctional Center, next to the Denmar Correctional Center,
before finally being transferred to St. Mary’s Correctional Center. Following
claimant’s release from St. Mary’s Correctional Center on April 22, 1999,
respondent was unable to account for claimant’s personal property. The
estimated value of claimant’s personal property was in the sum of $250.00.
When personal property of an inmate is recorded for the inmate and then taken
for storage purposes, this Court has previously viewed such situations as a
bailment. According to Black s Law Dictionary, a “bailment” is:
“A delivery of goods or personal property, by one person
74 REPORTS STATE
COURT OF CLAIMS [W.Va.
(bailor) to another (bailee), in trust for the execution of a special object
upon or in relation to such goods, beneficial either to the bailor or bailee or
both, and upon a contract, express or implied, to perform the trust and carry
out such object, and thereupon either to redeliver the goods to the bailor or
otherwise dispose of the same in conformity with the purpose to the trust. The
bailee is responsible for exercising due care toward the goods.” Id 95
(6t ed. 1990).
Consequently, respondent, as the bailee, must have satisfactory documentation
for return of the property to the inmate, the bailor. Heard vs. Division of
Corrections, 21 Ct. Cl. 151(1997). Claimant has the burden ofproofto
demonstrate by a preponderance of the evidence that there was a delivery of
claimant’s property to respondent before a prima facie case is established for
the failure to return items claim accrues. Nolan vs. Division of
Corrections, 19 Ct. Cl. 89 (1992).
In the instant claim, claimant has established a prima fade case of bailment
and negligent care of his personal property. The evidence adduced at the
October 14, 1999, hearing demonstrated that there was a delivery of claimant’s
property to respondent. Respondent, as the bailee, failed reasonably to
document and account for claimant’s personal property since the time he first
entered into the custody of respondent.
In view of the foregoing, the Court is of the opinion to and does make an award
in the amount of $250.00 to claimant.
Award of $250.00.
OPINION ISSUED DECEMBER 6, 1999
DAVID SCOTT GILLEN WATER
VS.
DIVISION OF HIGHWAYS
(CC-97-207)
Paul M. Stroebel, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
BAKER, JUDGE:
Claimant brought this action for the value of his vehicle after the berm on
County Route 58 (Left Fork Road) gave way, causing his vehicle to fall over an
W.Va.} REPORTS
STATE COURT OF CLAIMS 75
embankment. County Route 58 is a road maintained by respondent in Lincoln
County. The Court is of the opinion to make an award in this claim for the
reasons more fully stated below.
The incident giving rise to this claim occurred on March 11, 1997, at
approximately 9:00 p.m. County Route 58 is a rural residential road classified as a secondary road with a speed
limit of thirty miles per hour. Guardrail is installed at several places along
the road. The width of the asphalt paved portion of the road is about thirteen
to fourteen feet. The north berm has a width of two feet, while the south berm
has a width of three feet. There are no line markings on the road. At night,
the line of sight on the road in the area of the accident is approximately
three-hundred-fifty feet.
According to respondent’s daily records, there was a significant flood in the
area during the first part of March 1997. This situation placed respondent’s
employees on the status of emergency patrol of the roads. At the time, about
three-fourths of the roads in Lincoln County were being repaired. This flood
cleanup lasted for approximately three months. During this time, respondent had
been cleaning ditches on County Route 58. On the day of the incident, a grader was used on County Route 58 to
remove excess mud which was then placed onto the berm of the road. This road
work left approximately three feet of mud on the side of the road. Mud was
hanging on the weeds along the side of the berm.
On the evening in question, claimant and a friend, Daniel Miller, were
returning from a fishing trip traveling eastbound on County Route 58 in claimant’s 1994 Toyota pick-up truck. The truck had
an odometer reading of 62,568, Earlier in the day, it had been sprinkling. As
claimant proceeded along the road with the aid of the vehicle’s headlights, he
was met by an oncoming vehicle. Claimant slowed the speed of his vehicle and
veered over to the south berm of the road in order to make room for the
oncoming vehicle to pass. The vehicle’s passenger side terrain tires went onto
the south berm. Suddenly, the south berm gave way beneath the weight of
claimant’s vehicle and his vehicle slipped down the embankment, coming to rest
on its top. Neither claimant, nor his friend, suffered personal injuries.
After the accident, Sergeant A. W. Robinson, a member of the West Virginia
State Police, investigated the incident, notified respondent, and filed an
incident report. Later in the evening, an uncle of claimant’s wife accompanied
claimant to the site of the incident to take photographs of the scene. The next
day, claimant and his parents went to the site and took additional photographs.
Claimant obtained an estimate of the vehicle damage which stated that amount of
repairs exceeded the value of the vehicle. Consequently, the vehicle was
declared to be “totaled.” The blue book value of the vehicle was in the amount
of $4,950.00.
76 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claimant’s vehicle was insured under a liability insurance policy, but there
was no collision insurance coverage for this incident. Eventually, the vehicle
was salvaged for
$500.00.
This Court has been very consistent in regard to berm claims. In Sweda vs.
Department of Highways, this Court held:
“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
that berm of the highway.” Id., 13 Ct. Cl. 249 (1980) (citing 39 Am.
Jur. 2d Highways, Streets, and Bridges §
488).
When a motorist uses the berm of the road in an emergency situation, that
motorist may be entitled to recover damages if the berm is not properly
maintained by respondent. Meisenhelder vs. Department of Highways, 18
Ct. Cl. 80 (1990).
In the instant claim, the Court is of the opinion that the berm on County Route
58 (Left Fork Road) was not properly maintained by respondent. The photographic
evidence and testimony adduced at the October 1, 1999, hearing demonstrated
that the road was not wide enough for two vehicles to pass on the road without
one of the vehicles having to use the berm. Respondent knew or should have
known this fact. As respondent cleaned the ditches on County Route 58, it
should have taken reasonable precautions that the mud that was pushed onto the
berm of the road was stable enough to support a vehicle that was forced onto
the berm ofthe road. In this situation, claimant should have been able to rely
on the south berm on County Route 58 as he and his friend made their way back
from their fishing trip. Claimant’s vehicle having fallen over the south berm
reflects negligent berm maintenance on County Route 58 by respondent for which
claimant is entitled to recover his loss.
In view of the foregoing, the Court is ofthe opinion to and does make an award
to claimant in the amount of $4,450.00, the blue book value of claimant’s
vehicle minus $500.00, which claimant received for the salvage value of the
vehicle.
Award of $4,450.00.
OPINION ISSUED DECEMBER 6, 1999
SANFORD D. GREEN
VS.
W.Va.] REPORTS
STATE COURT OF CLAIMS 77
DIVISION OF HIGHWAYS
(CC-98-28 1)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his vehicle
struck a hole on Route 85 in Wharton, Boone County. Route 85 is a road
maintained by respondent in Boone County. The Court is of the opinion to make
an award for the reasons more fully stated below.
The incident giving rise to this claim occurred on August 5, 1998, at
approximately 4:05 to 4:10 p.m. The weather was hazy. Claimant was
traveling southbound in his 1996 Pontiac Trans-Am on Route 85 en route to the
local car wash. Claimant regularly travels Route 85 about every two days. Route
85 is a two lane highway in Boone County that is approximately eighteen feet
wide. On Route 85 at the location in question, there is a mining company, the
Wells Complex (Lightfoot) which creates substantial coal truck traffic on Route
85. This coal truck traffic leaves the road in a state of disrepair on a
constant basis.
As claimant proceeded along Route 85, he came around the curve with the Wells
Complex on his left hand side. After claimant drove out of the curve about one-
hundred feet, the road became rough. Claimant slowed his vehicle to a speed of
thirty- five miles per hour. Then, claimant’s vehicle hit a hole that he was
not familiar with and had not seen before. The hole protruded about one foot
into the travel portion from the berm. The hole was approximately four inches
deep and twelve to eighteen inches wide. The collision bent claimant’s
vehicle’s right front passenger side wheel rim. Claimant had a deductible
feature of $250.00 in his collision insurance coverage. The resulting loss to
claimant was 437.78 for a new low profile seventeen inch wheel rim.
The position of respondent was that it did not have prior knowledge of the hole
in question. Since Route 85 is a priority road, when respondent receives
information that there is a problem on Route 85, a quick response is made. However,
respondent acknowledged that the location in question is a rough section of
road because of the constant coal truck traffic. Respondent has not resurfaced
Route 85 in about eight to nine years. In addition, respondent admitted that
there was no effort to enforce the weight limit in that area of Route 85.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of motorist upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent liable
for road defects of
78 REPORTS STATE
COURT OF CLAIMS [W.Va.
this type, claimant must prove that respondent had actual or constructive
notice. Pritt vs. Dept. of Highways, 16 Ct. Cl. 8 (1985); Harmon vs.
Dept. of Highways, 16 Ct. Cl. 127 (1986).
The evidence adduced at the July 9, 1999, hearing established that respondent
had at least constructive notice, if not actual notice, of the hole. The Court
is of the opinion that respondent did not take reasonable steps to ensure the
safety of travelers on Route 85 in Wharton, Boone County. This area of Route 85
was a known problem area because of the coal truck traffic. Respondent should
have been aware of the propensity for holes to develop. Consequently, there is
sufficient evidence of negligence upon which to base an award.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant limited to the amount of $250.00, the deductible feature in his
collision insurance policy.
Award of $250.00.
OPINION ISSUED DECEMBER 6, 1999
ARTRIDGE HENRY
VS.
DIVISION OF HIGHWAYS
(CC-99- 173)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage and personal njuries which
occurred as a result of her vehicle striking rock debris while traveling
southbound on W.Va. Route 2 between P aden City and S istersville. W Va. Route
2 is a road maintained by respondent in Tyler County. The Court is of the
opinion to deny this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on February 27, 1999, at
approximately 6:30 to 6:40 a.m. On the rainy and foggy morning in question,
claimant was traveling southbound on W.Va. Route 2, her regular route to her
job as a home health nurse. Claimant carefully proceeded along W.Va. Route 2
with the aid of her vehicle’s headlights at a speed of about forty-five miles
per hour because of the weather
W.Va.J REPORTS
STATE COURT OF CLAIMS 79
conditions. There was a vehicle in front of and one behind her vehicle, with
about a car length between each ofthem. Suddenly, claimant heard a loud noise
and then her 1987 Chevy Camaro was struck by falling rocks. The impact of the
rocks spun her vehicle around and pushed it against the guardrail. The vehicle
had to be towed to a garage for repairs. The vehicle was later determined to be
a total loss and taken to ajunkyard. In addition, claimant sustained knee and
head injuries. Claimant did not have collision damage insurance on her car.
Claimant suffered a loss in the amount of $5,000.00 for the loss of the
vehicle, towing charges as well as storage of the vehicle and medical expenses.
The position of respondent was that it had neither actual nor constructive
notice for this rock fall incident on W.Va. Route 2. According to claimant’s
Tyler County Highway Administrator, the rock fall debris was immediately
removed from W.Va. Route 2 after notification. Also, the area is clearly marked
by “falling rock” road signs. While claimant testified that she had contacted
respondent on numerous occasions, respondent denied having any prior notice of
the condition of W.Va. Route 2.
The Court has consistently held that in claims of this nature, without a
positive showing that respondent had actual or constructive notice of a
dangerous condition, such as falling rocks and rock debris, posing a threat of
injury to property is insufficient to justify an award. Mitchell vs. Division of Highways, 21 Ct. Cl. 91(1996); Hammond vs. Division of Highways, 11 Ct. Cl. 234 (1977). In order to establish liability on behalf of
respondent, the evidence must establish that respondent had notice of the
dangerous condition posing the threat of injury to property and a reasonable
time to take suitable action to protect motorists. Alkire vs. Division of Highways, 21 Ct. Cl. 179 (1997).
In this claim, the Court is ofthe opinion that respondent reasonably maintained
this portion of W.Va. Route 2. In the 1997 claim, Williams vs. Division of Highways, a similar incident occurred on W.Va. Route 2, near
Sistersville. Id., 21 Ct. Cl. 175 (1997). At that time, W.Va. Route 2 was
described as a top priority road that was a known rock fall area and was
patrolled five times per week. Id. In Williams, this Court held respondent liable when it failed to
establish that it had marked the area with “falling rock” road signs. Id. As this
Court stated in Williams:
“The mountainous topography and
numerous rural communities in West Virginia require the respondent to construct
and maintain roads through areas which are prone to falling rocks. In these
areas, the respondent has a duty to reduce the risk of harm to motorists. This
duty can be fulfilled by. .
. effectively warning motorists of the
potential for falling rocks when correction is not feasible.”
80 REPORTS STATE
COURT OF CLAIMS [W.Va.
The evidence adduced at the September 16, 1999, hearing established that
respondent had taken measures to help assure the safety of the traveling public
while traveling on W.Va. Route 2 in Tyler County. In addition, claimant knew
that this area has a propensity for rock falls and that the area was
experiencing rock falls at the time of the incident. While the Court is
sympathic to claimant’s plight, the fact remains that there is insufficient
evidence of negligence upon which to base an award.
In view of the foregoing, the Court does hereby deny this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 6, 1999
HERBERT NEIL HUGHART
VS.
DIVISION OF HIGHWAYS
(CC-98-430)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
his vehicle striking debris while he was traveling westbound on Interstate 64.
Interstate 64 is a road maintained by respondent in Kanawha County. The Court
is of the opinion to deny this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on December 2, 1998, at about
9:00 p.m. On the clear and dry night in question, claimant was traveling
westbound on Interstate 64, near milepost 56 in South Charleston, Kanawha
County. At this location of Interstate 64, there are three travel lanes in each
direction. Claimant was proceeding on Interstate 64 in the center lane at a
speed of about sixty miles per hour as moderate flow traffic went around his
vehicle. There was a distance of one-hundred-fifty to twohundred feet between
claimant’s vehicle and other vehicles on the road. When a vehicle in front of
claimant’s vehicle changed lanes, he had no indication of any debris or trouble
on the interstate. Claimant then saw debris on the highway. Claimant could not
avoid the debris and his 1997 Buick Park Avenue struck and went through the
debris. The unidentifiable debris was approximately the height of the vehicle’s
hood and about
W.Va.J REPORTS STATE
COURT OF CLAIMS 81
four to six feet wide. After the accident, claimant went to the South
Charleston Police Department and filed an accident report. While there,
claimant was informed by the South Charleston Police Department that respondent
was on its way to clear the debris. The resulting damage to claimant’s vehicle
was in the amount of $1,000.80. Claimant had a deductible feature of $250.00 in
his insurance policy coverage which would limit any recovery to this amount.
Respondent denied prior knowledge of the debris in question. According to
respondent’s daily records, emergency service was dispatched to the site, where
a piece of Styrofoam was found. The Styrofoam was immediately cleared off of
the road. Nothing further was found in the area.
The evidence adduced at the September 3, 1999, hearing established that
respondent had no notice that debris on Interstate 64 posed a hazard to the
traveling public. Respondent sent employees to the scene as soon as it received
notice of the situation. T he C ourt, w bile understanding the dis tress c
aused to c laimant in this situation, is of the opinion that respondent acted
reasonably in response to notice of the debris on the interstate, and that
respondent was not negligent in its maintenance of the highway.
In view of the foregoing, the Court hereby denies this claim.
Claim disallowed.
OPINiON ISSUED DECEMBER 6, 1999
TERRY L. HUNDAGEN
VS.
DIVISION OF HIGHWAYS
(CC-98-303)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of a
rock fall while traveling northbound on U. S. 250, also known as Route 2, north
of Glendale in the “Narrows” area. U. S. 250 is a road maintained by respondent
in Marshall County. The Court is of the opinion to make an award in this claim
for the reasons more fully stated below.
82 REPORTS STATE
COURT OF CLAIMS [W.Va.
The incident giving rise to this claim occurred on March 16, 1998, at
approximately 9:15p.m. On the cold night in question, claimant was traveling
northbound on U. S. 250 also known as Route 2, north of Glendale in an area
locally referred to as the “Narrows.” U. S. 250 is a dimly lighted two lane
road that is marked as a “falling rock” area with a speed limit of fifty miles
per hour. Once a week, claimant travels U. 5. 250 to attend a landscaping class
taught at John Marshall High School. Earlier in the evening, claimant had been
on U. S. 250 and the road was clear of rocks or rock debris. Claimant proceeded
along U. S. 250 with the aid of the 1989 Chevrolet Beretta’ s headlights at a
speed of about fifty miles per hour. While there was no oncoming traffic on the
road, claimant knew that several ofher classmates were traveling behind her
vehicle. As claimant came around a curve, she saw rocks and debris about thirty
feet away, coming towards her vehicle. Claimant did not have enough time to
avoid the rock tall and her vehicle was struck by rocks as well as rock debris.
After the incident, claimant’s vehicle began to make noises and she decided to
go to a local convenience store in order to telephone her husband, an associate
engineer technician for respondent in District 6. At that moment, claimant’s
husband happened to be passing by and stopped to see if assistance was needed.
Claimant’s husband did the necessary repairs so that the vehicle could be
driven to their residence. Afterwards, claimant’s husband reported the incident
to Wheeling Tunnel and was informed that a grader had been dispatched because
of another incident.
The damage sustained to claimant’s vehicle was estimated between $1,150.50 and
$1,652.80. Since the vehicle was insured only under a liability insurance
policy, there was no insurance coverage for this incident. Claimant’s husband made
further repairs to the vehicle, but no receipts were kept on that work.
However, the vehicle was still in need of major repairs. In April of 1998, the
vehicle was used as a trade-in on a new vehicle. Claimant’s husband asserted
that a loss was taken for the trade-in because of the incident. As a trade-in,
claimant received $1,500.00 for the damaged 1989 Chevrolet Beretta with 100,000
miles. The value of the vehicle before the incident was estimated to be about
$2,800.00 to $3,000.00.
Claimant alleges that the absence of positive barriers on U. S. 250 in the
“Narrows” stretch of highway constitutes negligence. Respondent should have
installed positive barriers on U. S. 250 in the “Narrows” to protect the
traveling public from the frequent rock falls that occur there. If positive
barriers would have been installed, this incident would not have occurred.
The position of respondent was that it did not have notice of the rocks and
rock debris on U.S. 250. Respondent admitted that the area in question was a well
known “rock fall” area, but argued that the area was not significantly
hazardous to the traveling public. The area has been clearly marked to protect
the traveling public. Two federal
W.Va.] REPORTS
STATE COURT OF CLAIMS 83
standard size signs, one of which is marked “Falling Rock” and the other on the
same pole is marked “Next 1 Mi,” were erected in the area in question to notify
the traveling public of potential problems. In addition, overhead lights were
installed on U. 5. 250 in 1976. This area is regularly patrolled and on the
night in question, a grader was immediately dispatched to the area to clear the
rocks and rock debris. According to respondent’s daily records, the grader
remained at the scene of the incident for three hours. Before this time,
respondent asserted that there was no prior notice to respondent of any
potential rock falls in the area.
The general rule of this Court has been that in claims of this nature, a
claimant must positively demonstrate that respondent had notice or constructive
notice of a dangerous condition posing a threat of injury to property, such as
falling rocks and rock debris. Mitchell
vs. Division of Highways, 21 Ct. Cl.
91(1996); Coburn vs. Division of
Highways, 16 Ct. Cl. 68 (1986);
Hammond vs. Division of Highways. 11 Ct. Cl. 234 (1977). Besides respondent’s notice
ofthe dangerous condition, the evidence must also establish that respondent had
a reasonable time to take s uitable a ction to p rotect motorists. Alkire vs. Division of Highways, 21 Ct. Cl. 179 (1997). Knowledge of other rock falls in
the area near an incident can be sufficient to give respondent notice of a
hazard to the traveling public. Cole
vs. Division of Highways, 21 Ct. Cl.
15 (1995).
In the instant claim, the Court is of the opinion that this portion of U. S.
250 in the “Narrows” is a hazard to the traveling public. Respondent has known
since 1941 that this area is notorious for potential rock falls. Dunn vs. Division ofHighways, 19 Ct. Cl. 163 (1992). This portion of road is such a
hazard to the traveling public that warning signs and regular patrols are not
sufficient to protect the traveling public in this section of highway. This
Court in fmding the State Road Commissioner liable in the claim Varner ‘s Adm ‘ii v. State Road Comm ‘n, stated:
“[Wjhen the State Road Commissioner knows or should know that an unusually
dangerous condition exits, there is a duty to inspect and to correct the
condition within the limits of the funds appropriated by the Legislature for
maintenance purposes.”1
Id., 8 Ct. Cl. 119, 122 (1970); See also Cole, Supra; Smith vs. Division ofHighways, 11 Ct. Cl. 221 (1997).
Just last year, this Court heard two separate claims regarding the Narrows on
U. S. 250 in Marshall County. See Peck
& Peck vs. Division of Highways (CC-97-164
Pursuant to West Virginia Code Sections 17-2A-1 and 5F-2-1, the Division of
Highways, formerly the office of State Road Commissioner, was transferred to,
and administratively attached to, the Department of Transportation by the
Executive Reorganization Act of 1989.
84 REPORTS STATE
COURT OF CLAIMS [W.Va.
& CC-97-375, unpublished opinion issued May 29, 1998); Dimmick
& Dimmick vs. Division of Highways (CC-96-56 1, unpublished opinion
issued May 29, 1999). Again this year, this Court heard this claim and another,
Williams vs. Division of Highways (CC-99- 114, unpublished opinion),
regarding the same area in question. In many of the claims heard in the past by
the Court, negligence on the part ofthe respondent was noted by the Court and
awards were made. The notoriety of this particular area of U. S. 250 cannot be
ignored by this Court. In Dimmick, one of respondent’s employees made
the analogy that driving on U. S. 250 in the Narrows in Marshall County was
similar to playing “Russian Roulette.” See Id. However, even after all
of the previous incidents, no remedial measures have been taken by respondent.
Frankly, the Court is at a loss as to why respondent refuses to eradicate a
known dangerous condition. Routine patrols do not address the problem. The
respondent is on notice of a hazardous condition which poses a potential danger
to the traveling public. Therefore, the Court concludes that the conduct of
respondent constitutes negligence.
The Court is of the opinion that the evidence adduced at the September 16,
1999, hearing demonstrated that a hazardous condition existed at the time of
claimant’s incident. There was no showing that respondent did anything beyond
the routine patrolling of U. S. 250. Consequently, there is sufficient evidence
of negligence upon which to base an award.
In view of the foregoing, the Court is of the opinion to and does make an award
to the claimant in the amount of $1,550.00, the blue book value of claimant’s
vehicle.
Award of$1,550.00.
OPINION ISSUED DECEMBER 6, 1999
DEWAINE C. KING
VS.
DIVISION OF CORRECTIONS
(CC-99-252)
Claimant appeared pro Se.
Joy M. Cavallo, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for destruction of personal roperty and alleged
harassment by employees of respondent at the Mt. Olive Correctional Center.
Claimant
W.Va.1 REPORTS
STATE COURT OF CLAIMS 85
currently is an inmate at Mt. Olive Correctional Center in Fayette County.
The Court is of the opinion to deny this claim for the reasons more fully
stated below.
In early June 1999, claimant alleges that he was accused of having an affair
with an employee of Mt. Olive Correctional Center. During the investigation,
claimant was retained in a holding cell for three hours while guards conducted
a search of claimant’s cell. According to claimant, the cell was left in
disarray and his property was not given reasonable care. Transcripts from
claimant’s criminal circuit court case, as well as a book, The Jail House
Lawyer ‘s Litigation Manual, were destroyed. However, claimant acknowledged
that this book was still legible even though some of the pages had been wet and
were torn. Claimant also acknowledged that he could obtain free transcripts of
his criminal circuit court case by contacting his attorney at the West Virginia
Public Defender’s Office.
The Court, having reviewed the record in this claim, is of the opinion that
claimant’s personal property was not destroyed by respondent’s employees during
the investigation. Claimant has possession of his book and it is still legible
and useable. No further evidence regarding the destruction of the book was
produced by claimant. Consequently, there is insufficient evidence of
negligence on which to base an award.
In view of the foregoing, this Court is of the opinion to and does deny this
claim.
Claim disallowed.
OPINION ISSUED DECEMBER 6, 1999
JAMES KUTHY
VS.
DIVISION OF HIGHWAYS
(CC-99-137)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
his vehicle striking a hole while he was traveling southbound on County Route
8, also known as Chapel Hill Road, almost two miles from W.Va. Route 40,
outside the town of Triadeiphia. County Route 8, is a road maintained by
respondent in Ohio County.
86 REPORTS STATE
COURT OF CLAIMS [W.Va.
The Court is of the opinion to deny this claim for the reasons more fully
stated below. The incident giving rise to this claim occurred on Thursday,
February 4, 1999,
at approximately 6:30 to 6:45 a.m. On the foggy morning in question,
claimant was proceeding to his place of employment in his all-wheel drive 1988
Ford Tempo on a curve of County Route 8. While the speed limit at this location
is thirty five miles per hour, claimant was traveling at a speed of twenty to
twenty-five miles per hour because of fog. Claimant frequently travels
southbound on County Route 8 and on the prior day did not notice any
irregularities in the pavement. As claimant made his way around the winding
road, he saw a hole in the road. Claimant tried to maneuver his vehicle around
the hole, but was unable to avoid striking the hole. The left rear tire of
claimant’s vehicle went into the hole as the vehicle went into the air and
around backwards in the road. The incident burst the tire and bent the wheel.
Afterwards, claimant contacted the Ohio County Sheriffs Department. A member
ofthe Ohio County Sheriffs Department arrived at the scene approximately twenty
five minutes later, but no accident report was made. Claimant then drove the
vehicle to his residence. After returning home, claimant telephoned the Ohio
County Assistant Supervisor, Tom Sims, and informed him of the incident.
The loss sustained by claimant was in the estimated amount of $1,092.15.
Claimant did not have collision damage insurance on his car. Claimant did some
repairs to the vehicle, but m ore e xtensive work was needed. Three months
prior to the September 17, 1999, hearing, claimant used the vehicle as a
trade-in. As a result of the trade-in, claimant received $300.00 for the
vehicle involved in the incident.
The position of the respondent was that it was not on notice of the hole on
County Route 8. According to respondents daily records, cold mix was used to
repair the hole the same day notice was given of claimant’s incident.
Respondent had no prior notice of the hole.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold
respondent liable for road defects of this type, claimant must prove that
respondent had actual or constructive notice. Pritt vs. Dept. of Highways, 16
Ct. Cl. 8 (1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
In the present claim, the evidence adduced at the September 16, 1999, hearing
indicated that respondent had no notice of the condition on County Route 8,
Ohio County. No evidence was presented by claimant to establish that respondent
did not take reasonable steps to ensure the safety of motorists on County Route
8. Consequently, there is insufficient evidence of negligence upon which to
base an award.
in view of the foregoing, the Court hereby denies this claim.
W.Va.] REPORTS
STATE COURT OF CLAIMS 87
Claim disallowed.
OPINION ISSUED DECEMBER 6, 1999
GARRETT B. KUYKENDALL, JR.
VS.
STATE RAIL AUTHORITY
(CC-99-399)
Claimant appeared pro Se.
Joy M. Cavallo, 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 the sum of $2,000.00 for a Black Angus Heifer that was struck
and killed by a train. In its Answer, respondent admits the validity of the
claim and that the amount is fair and reasonable. The Court is aware that
respondent does not have a fiscal method for paying claims of this nature;
therefore, the claim has been submitted to this Court for determination.
Accordingly, the Court hereby makes an award to claimant in the amount of
$2,000.00.
Award of $2,000.00.
OPINION ISSUED DECEMBER 6. 1999
TRACY LOOSEMORE
VS.
DIVISION OF HIGHWAYS
(CC-99-92)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
88 REPORTS STATE
COURT OF CLAIMS [W.Va.
PER CURIAM:
Claimant brought two separate claims for vehicle damage which occurred as a
result of highway debris being thrown onto her parked vehicle as it sat in
front of her residence on W.Va. Route 27, also known as Washington Pike, in
Wellsburg, Brooke County. W.Va. Route 27 is a road maintained by respondent in
Brooke County. The Court is of the opinion to make an award in these claims for
the reasons more fully stated below.
W.Va. Route 27,
Washington Pike as it is locally known,
is a high priority two lane road in Brooke County. The width of W.Va. Route 27 is twenty-one to twenty- three feet wide and there is
a speed limit of forty-five miles per hour. Along the road, the ten foot berm is
used for parking. The topographical outlay of W.Va. Route 27 creates a slope
with sides. This topographical feature allows water runoff on to the roadway,
which creates a serious drainage problem in the area. In addition, heavy truck
traffic is frequently on the road. The trucks use W.Va. Route 27 as a shortcut
to get to the Interstate. The combination of the drainage problem and the truck
traffic keep W.Va. Route 27, Washington Pike, in a constant state of disrepair.
Due to insufficient paving funds, W.Va. Route 27 has not been paved since 1987.
Respondent in Brooke County repairs and sweeps the road on a regular basis.
However, the road continues to fall into disrepair. As a result, the road is
filled with numerous holes and scattered highway debris. When truck traffic
proceeds through the area, trucks hit the holes and water, kicking up water and
highway debris onto the berm areas.
The incident giving rise to the first claim occurred on January 27, 1998.
Claimant’s 1990 four-door Corsica was parked facing west on the berm of W.Va.
Route 27 which is adjacent to her residence. Claimant is limited to parking in
this area in front of her residence because of the size of the road and the
drainage problem. At about 6:30 a.m., a speeding truck passed by, throwing
asphalt debris onto the vehicle’s front windshield, cracking it. The resulting
loss to claimant for replacement of the front windshield was in the amount
of$222.35. Claimant reported the incident to her motor vehicle insurance
carrier and the deductible feature in the sum of $100.00 was paid by claimant
in order to get the vehicle’s front windshield repaired.
The incident giving rise to the second claim occurred on February 5, 1998. On this occasion, claimant’s vehicle was parked
facing east outside of her residence on W.Va. Route 27. Sometime during the
night, a vehicle passed by throwing asphalt debris onto the vehicle, breaking
the back windshield. Upon discovering the broken back windshield, claimant’s
fiancé, Blame J. Pannett, Jr., telephoned the Brooke County Sheriff’s
Department. A member of the Brooke County Sheriff’s Department investigated the
incident and filed a report concluding that a vehicle had thrown highway debris
onto claimant’s vehicle. The resulting loss to claimant for replacement of the
W.Va.J REPORTS
STATE COURT OF CLAIMS 89
back windshield was estimated in the amount of$394.88. As aforementioned,
claimant has a deductible feature in the sum of $100.00 in her motor vehicle
insurance policy coverage. Although, this incident was not turned over to
claimant’s insurance carrier, her recovery is limited to the amount of her
deductible.
In order to establish liability on behalf of respondent, the evidence must
establish that respondent had notice of a dangerous condition posing the threat
of injury to property and a reasonable time to take suitable action to protect
motorists. Alkire vs. Division of Highways, 21 Ct. Cl. 179 (1997); Mitchell
vs. Division of Highways, 21 Ct. Cl. 91(1996); Hammond vs. Division of
Highways, 11 Ct. Cl. 234 (1977).
In the present claim, the Court is of the opinion that W.Va. Route 27 or
Washington Pike, poses a hazard not only to the traveling public but also to
claimant. Respondent knows that this area has a serious drainage and traffic
problem. The regular maintenance procedures of respondent are no longer
sufficient to maintain this roadway. The actions taken by respondent are
clearly insufficient to rectify the hazardous roadway. This Court in fmding the
State Road Commissioner liable in the claim Varner ‘s Adm ‘n vs. State Road
Comm ‘n, stated:
“[Wjhen the State Road Commissioner knows or should know that an unusually
dangerous condition exists, there is a duty to inspect and to correct the
condition within the limits of the funds appropriated by the Legislature for
maintenance purposes.”
Id., 8 Ct. Cl. 119, 122 (1970); See also Cole vs. Division of
Highways, 21 Ct. Cl. 15 (1995); Smith vs. Division of Highways, 11
Ct. Cl. 221 (1997). Respondent has breached this duty owed to the traveling
public. The evidence adduced at the September 16, 1999, hearing demonstrated
that a hazardous condition of W.Va. Route 27 existed at the time of the
incidents to claimanfs vehicle and that respondent did nothing beyond the
routine repair and sweeping of West Virginia 27, Washington Pike, in Wellsburg,
Brooke County. As a result, the Court is of the opinion that respondent was
negligent in its maintenance of W.Va. Route 27 for which claimant may recover
for the damages sustained to her vehicle.
In view of the foregoing, the Court is of the opinion to and does make an award
‘Pursuant to West Virginia Code Sections 17-2A-1 and 5F-2- 1, the Division of
Highways, formerly the office of State Road Commissioner, was transferred to
and administratively attached to the Department of Transportation by the
Executive
Reorganization Act of 1989.
90 REPORTS STATE
COURT OF CLAIMS [W.Va.
to the claimant in the amount of her deductible feature, $200.00, for the two
claims. Award of $200.00
OPINION ISSUED DECEMBER 6, 1999
STEVE M. MATUSKY
VS.
DIVISION OF HIGHWAYS
(CC-99- 170)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a stipulation entered
into by claimant and counsel for respondent wherein certain facts and
circumstances of the claim were set forth as follows:
1. On January 8, 1999, claimant was traveling northbound in his 1993 Plymouth
Acclaim on U. S. Route 250, near Mannington, in Marion County. As claimant
drove across a bridge on U. S. Route 250, his vehicle struck a metal plate
covering a hole in the pavement which caused claimant to lose control of the
vehicle. Claimant’s vehicle then crossed into the southbound lane, striking a
guardrail on the bridge. Claimant was able to maneuver the vehicle back into
the northbound lane, where it fmally came to a stop.
2. As a result of this incident, c1aimants vehicle sustained damage in excess
of the sum of $500.00, which is the deductible feature in claimant’s motor
vehicle insurance policy coverage.
3. On the date ofthe incident herein, respondent failed to maintain U. S. Route
250 in Marion County in a reasonably safe condition.
4. Respondent agrees that the amount of damages as put forth by claimant is
fair and reasonable.
The Court has reviewed the facts of this claim as stated in the Stipulation,
and adopts the statement of facts as its own. The Court finds that respondent
was negligent in its maintenance of U. S. Route 250 in Marion County on the
date of claimant’s incident; that the negligence of respondent was the
proximate cause of the damages sustained to claimant’s vehicle; and that the
amount of the damages agreed to by the
W.Va.J REPORTS
STATE COURT OF CLAIMS 91
parties is fair and reasonable. Claimant is entitled to an award for his loss
to the extent of the deductible feature in his motor vehicle insurance policy.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $500.00 to the claimant.
Award of $500.00.
OPINION ISSUED DECEMBER 6, 1999
BRENDA S. NAPIER
VS.
DIVISION OF HIGHWAYS
(CC-98-l 12)
Claimant appeared pro Se.
Andrew F. Tan, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her vehicle
struck a hole on German Ridge Hill, which is a part of W.Va. Route 152,
proceeding toward Lavalette in Wayne County. German Ridge Hill, W.Va. Route
152, is a road maintained by respondent in Wayne County. The Court is of the
opinion to make an award for the reasons more fully stated below.
The incident giving rise to this claim occurred on or about December 19, 1997,
at approximately 8:30 p.m. The weather that night was clear. Claimant travels
this road several times per week, but had not been on the road for several days.
On the night in question, claimant and her mother were traveling southbound on
German Ridge Hill, which is a part of W.Va. Route 152, toward Lavalette in
Wayne County. German Ridge Hill is a two lane road with a passing lane in the
middle. There was a hole extending from the right edge of the road into the
claimant’s lane of travel. The hole was about two feet in length, six to eight
inches wide, and three to four inches deep.
As claimant proceeded along German Ridge Hill in her 1995 Hyundai Elantra at a
speed of about fifty-five miles per hour, her vehicle’s passenger side tire
struck the hole in the road. According to claimant, she did not see the hole
until striking it was unavoidable. Claimant’s vehicle sustained damage to the
tire and the wheel assembly. Afterwards, claimant reported the hole to
respondent. The total damage to claimant’s vehicle was in the amount of$244.51,
for a tire and a wheel assembly. Claimant’s motor
92 REPORTS STATE
COURT OF CLAIMS [W.Va.
vehicle insurance policy had a deductible feature in the amount of $500.00.
Respondent contends that it did not have notice regarding the hole on German
Ridge Hill, W.Va. Route 152. After receiving claimant’s complaint, respondent
inspected the road but did not find the hole in question. There was no
maintenance on the road until later in the month when the hole was patched.
Respondent had been working on W.Va. Route 152 during the first part of
December 1997, which included patching the location of claimant’s incident. The
road again was patched in January 1998. According to respondent’s records,
there was a hole that was worthy of being treated.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of motorist upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent
liable for road defects of this type, claimant must prove that respondent had
actual or constructive notice. Pritt vs. Dept. of Highways, 16 Ct. Cl. 8
(1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
In the present claim, the evidence established that respondent had
constructive, if not actual notice of the defective condition. German Ridge
Hill, W.Va. Route 152 in Wayne County is a heavily traveled road. The Court is
of the opinion that respondent did not take reasonable steps to ensure the
safety of drivers using German Ridge Hill, W.Va. Route 152 in Wayne County.
Consequently, there is sufficient evidence of negligence upon which to base an
award.
In view of the foregoing, the Court is of the opinion to and does make an award
in the amount of $244.51 to claimant for the damages sustained to her vehicle.
Award of $244.51
OPINION ISSUED DECEMBER 6, 1999
LEONARD PAXTON
VS.
DIVISION OF HIGHWAYS
(CC-98-250)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
W.Va.J REPORTS
STATE COURT OF CLAIMS 93
PER CURIAM:
Claimant brought this action for vehicle damage which occurred on Piedmont Road
near the intersection with Route 60 in Huntington as a result of negligent
maintenance of the road. Piedmont Road is a road maintained by respondent in
Wayne County. The Court is of the opinion to deny this claim for the reasons
more fully stated below.
The incident giving rise to this claim occurred on March 2, 1998, sometime
after 2:00 a.m. On the night in question, claimant was en route to Ashland,
Kentucky, to perform some tile work at Aldi Food Stores. Since claimant had to
be at work at 5:00 a.m., he and a co-worker, Jerry Elkins, left his house at
2:00 a.m. Claimant was traveling at about twenty-five to thirty-five miles per
hour and using his headlights because it was foggy with light rain falling.
Claimant had not traveled this route to Ashland, Kentucky, prior to the night
of this accident.
When claimant and his co-worker left his house in Saint Albans, Kanawha County,
in his 1981 Ford F- 150 pick-up truck, they proceeded towards Huntington where
they drove to Route 52 and exited at the Chesapeake, Ohio, exit. The
Chesapeake, Ohio, exit is the last exit before entering Ohio. There, they
turned at the fu-st left, Madison Avenue. The road was flat and there were
street lights visible. The speed limit in this area was thirty miles per hour.
Claimant passed a Rich Oil Station on his right, which is about one-thousand
feet from the accident scene. Camden Park is across the street. At this point,
visibility became difficult. According to claimant, he only had a view of about
twenty to thirty feet. He applied his brakes thirty feet before the curve, but
the road “just disappeared.” Claimant missed a turn, his vehicle went off the
road, and it landed in a twelve foot ravine.
When claimant’s truck landed in the ravine, it was halfway on its side, but
some stumps and logs caught it, keeping it from overturning. Two tires burst,
all of the shocks burst, the running boards were broken off and the vehicle
suffered other mechanical problems. The ceramic tile that was to be used at the
claimant and co-worker’s job site in Ashland, Kentucky, also was damaged.
Neither claimant nor his co-worker was physically injured in the accident. The
vehicle damage was extensive, but the vehicle damage did not exceed the value
of the vehicle. The resulting vehicle damage was
$3,017.65.
Immediately after the accident, claimant and his co-worker exited the truck
and proceeded to the Rich Oil Station to telephone for help. Claimant’s
co-worker called the Sheriff, but there was no response. Claimant then called
for a tow truck. In addition, claimant phoned Aldi Food Stores in Ashland,
Kentucky, to cancel his job which was given to someone else. The truck was
towed to a local garage for temporary repairs allowing claimant to drive the
truck to return home. Subsequently, the oil drain plug fell
94 REPORTS STATE
COURT OF CLAIMS [W.Va.
out of the oil pan and oil leaked from the engine. This leakage severely
damaged the engine which resulted in the engine having to be rebuilt.
Meanwhile, claimant purchased a 1975 Ford truck. Later, the damaged truck was sold.
Claimant alleges that the road was maintained in a negligent manner and
presented a hazard to the driving public primarily because there were no
warning signs or reduce speed signs for the curve where claimant drove off the
roadway. Also, there was an unprotected embankment. There was some semblance of
a former guardrail on the side of the road where the incident occurred which
claimant contends should have been maintained. If all of these conditions had
been addressed by respondent, claimant is of the opinion that he would not have
had an accident on March 2, 1998.
Respondent asserts that it was not negligent in the maintenance of Piedmont
Road. There had been no prior claims or complaints regarding the curve in the
road at the scene of claimant’s accident. There was a 30 mile per hour speed
limit sign approximately two tenths of a mile prior to the curve on Piedmont
Road.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of motorist upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). As the Adkins Court
stated:
“[wje do not think the failure of the state road commissioner to provide guard
rails and road markers .
. . constitutes negligence of any
character, and particularly no such negligence as would create a moral
obligation on the part of the State to pay damages for injury . . . assumed to have occurred through such failure, and as
the proximate cause thereof. The very nature of the obligation of the State, in
respect to the construction and maintenance of its highways, precludes the idea
that its failure to exercise discretion in favor of a particular location over
another, on whether it should provide guard rails, . . . or danger signals at that point, is an act of negligence.
Certainly, it must be known, as a matter of common information, that places of
danger on our highways exist at innumerable points, particularly on our
secondary roads.... In the very nature of things, the road commissioner must be
permitted a discretion as to where the public money, entrusted to him for road
purposes, should be expended, and at what points guard rails, danger signals...
should be provided, and the honest exercise of that discretion cannot be
negligence. .
. . Certainly, where the road commissioner
is vested with discretion in matters of this
W.Va.J REPORTS
STATE COURT OF CLAIMS 95
character, it cannot be negligence that he selects for safety measures one
point over another Id., 130 W.Va. at 660, 661; 46 S.E.2d at 88, 89.’
The photographic evidence and testimony adduced at the June 24, 1999, hearing indicated that the curve on Piedmont
Road was clearly a sharp curve. Respondent allowed the semblance of guardrail
at the edge of the embankment to fall into disrepair. In addition, there was no
indication to motorists that a potentially hazardous situation could be ahead.
Notwithstanding that this conduct on the part of respondent may have been
ill-advised, the Court is reluctant, in light of Adkins v. Sims, to
conclude that respondent was negligent in that regard. The Court concludes that
claimant was negligent in the operation of his vehicle. The photographic
evidence indicated that there were skid marks from claimant’s vehicle about the
length of the vehicle itself. These skid marks indicate to the Court that
claimant’s vehicle was traveling at a rate of speed too fast for the road. This
situation is exacerbated by the fact that there were inclement weather
conditions on the day in question. Thus, the Court is ofthe belief that claimant
did not exercise reasonable care in operating his vehicle under the then
existing weather conditions.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
OPINION ISSUED DECEMBER 6, 1999
EDWARD PINKERTON
VS.
DIVISION OF HIGHWAYS
(CC-99- 175)
‘The Division of Highways, formerly the office of State Road
Commissioner, was transferred to, and administratively attached to, the
Department of Transportation by the Executive Reorganization Act of 1989. See
W.Va. Code §
17-2A-1 & 5F-2-l.
96 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
the alleged negligent maintenance of County Road 10/2 in Belmont. County Road
10/2 is a road maintained by respondent in Pleasants County. The Court is of
the opinion to make an award in this claim for the reasons more fully stated
below.
The incident giving rise to this claim occurred on January 28, 1999. County
Road 10/2 is a third priority, twelve to fourteen foot, dirt road that is
located off of County Route 1 in Pleasants County. Previously, respondent
graded the dead-end road about once a year because the road was used by
hunters. Some time before the incident, claimant moved to the property located
about three-tenths of a mile on County Road 10/2. From County Road 10/2 to
claimant’s residence there has an unpaved drive-way approximately three-tenths
of a mile. Currently, claimant’s residence is the farthest residence down the
road.
On the day in question, the road was in a state of disrepair and was saturated
with mud. This state of disrepair made vehicle travel on the road difficult. As
claimant proceeded up a grade in the road in his 1982 Olds Delta 88, the
vehicle’s wheels became stuck in the muddy road. While claimant was attempting
to drive his two-door sedan out of the mud, the vehicle’s engine blew up.
Claimant towed the disabled vehicle to his property with the aid of his truck.
At the time of the incident, there were about 89,000 miles on the vehicle’s
engine. The vehicle currently remains parked on claimant’s property. Claimant
bought a Ford Bronco II as a replacement. Since claimant had a liability insurance
policy only, there was no insurance coverage for this incident. The resulting
loss to claimant was in the amount of $2, 152.32.
Respondent acknowledged that County
Road 10/2 is a third priority road and it asserts that it took corrective
measures after receiving notice of the state of disrepair on the road.
This Court previously stated in Barnard vs. Division of Highways that
low priority roads must be maintained in a reasonable state of repair. Id., 21 Ct.
Cl. 103 (1996). As a third priority dirt road, County Road 10/2 should be
maintained in a reasonable state of repair. However, the Court is of the
opinion that respondent failed to maintain County Road 10/2 in a reasonable
state of repair. Respondent knew that the road had been used by hunters and
that the hunters’ vehicles made ruts in the road. For this reason, respondent
would grade the road, especially since there were other families in the
location in question that needed to be able to use the road. Simply put,
respondent allowed County Road 10/2 to become a muddy mess. Unfortunately, the
deterioration
W.Va.J REPORTS
STATE COURT OF CLAIMS 97
oft he road was the p roximate c ause o f c laimant’s vehicular damage, and
this is sufficient evidence of negligence upon which to base an award.
In view of the foregoing, the Court is of the opinion to and does make an award
in this claim to claimant in the amount of $275 .00, the blue book value of his
vehicle.
Award of $275.00.
OPINION ISSUED DECEMBER 6, 1999
PUTNAM TRUCKLOAD DIRECT
VS.
DIVISION OF HIGHWAYS
(CC-98-365)
Alan G. McGonigal, Attorney at Law, for claimant.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for respondent.
PER CURIAM:
Claimant, an Ohio corporation, brought this action for tractor trailer damage
which occurred as a result of claimant’s tractor trailer striking the side of a
tunnel on Secondary Route 60/14.’ Secondary Route 60/14 is a road maintained by
respondent in Greenbrier County. The Court is of the opinion to make a reduced
award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on September 16, 1998, at
approximately 7:30 a.m. On the morning in question, claimant’s employee, Donald
Lee Stalling, was driving a tractor trailer through Charleston en route to Roanoke,
Virginia. The tractor being driven by Mr. Stalling was hauling a trailer of
cargo eastbound along Interstate 64 at White Sulphur Springs.2 Suddenly, an
airline leak developed on the trailer, which required immediate attention. Mr.
Stalling, having never driven through
‘Claimant is division of P & D Transportation, Inc.
2 The tractor was a 1985 model, while the trailer was a
1987 model. The
dimensions of the trailer were forty-eight feet long, one hundred and two
inches wide (the maximum federal standard) and thirteen feet four inches or
thirteen feet six
inches high. The height of the trailer depends on the weight of the trailer. At
the time of the incident, the trailer was loaded with 35,000 pounds of cargo.
98 REPORTS STATE
COURT OF CLAIMS [W,Va.
this area before, needed assistance fmding an immediate truck-stop. Using his
CB radio, Mr. Stalling contacted an unidentified person to ask directions to
the nearest truck-stop.1 The unidentified person instructed Mr. Stalling to
take the first White Sulphur Springs exit onto Secondary Route 60/14 and take a
right, which would lead to Dixon’s, Inc., a truck-stop. Mr. Stalling complied
with the instruction. As Mr. Stalling proceeded southward on Secondary Route
60/14 in the tractor trailer, he observed a UPS office on his left. Across from
the UPS office, there was a open field. There were two signs, “one lane road”
and “tunnel”, along the road, but no signs warning of a low tunnel or creek in
the tunnel.
Eventually, Mr. Stalling came upon a tunnel owned by the CSX railroad, which
was five hundred feet from the UPS office.2 At the tunnel, Secondary Route
60/14 is bottlenecked into one lane of traffic with a width of fourteen feet,
eleven inches. The middle of the tunnel has a height of fifteen feet, six
inches and the sides of the tunnel are fourteen feet, two inches. These heights
are consistent through the tunnel. At the point in the tunnel where the height
is thirteen feet, six inches, the width of the tunnel is ten feet, ten inches.
Two signs, “15-0” and “14-2”, adorn the side of the tunnel in order to
indicate the height of the tunnel. The roadway through the tunnel is straight,
but curves after exiting the tunnel. Inside the tunnel, a creek runs north on
the tunnel’s right side. On the sides of the road, outside of the tunnel, there
are two diagonal striped signs, which indicate that caution is required at the
tunnel.3
Based upon the signs on the tunnel as well as personal knowledge and
experience, Mr. Stalling believed that the trailer would clear the tunnel. At
this time in the morning it was becoming dawn and Mr. Stalling slowed the speed
of the tractor trailer to approximately ten to fifteen miles per hour. As the
tractor trailer entered the tunnel, Mr. Stalling noticed a creek running on the
right hand side of the tunnel so he was forced to maneuver the tractor trailer
to the left hand side. This situation concerned Mr. Stalling and he feared
going into the creek or hitting the tunnel. After entering the tunnel, the
driver’s side of the trailer began scrapping the top of the tunnel. When the
‘The unknown person was incorrect in the instruction to Mr. Stalling. Since Mr.
Stalling was proceeding eastbound on Interstate 64, he should have taken a left
at the first White Sulphur Springs exit and then looked for Dixon’s, Inc., on
his right.
2 The drainage and arch belong to CSX, while the roadway itself belongs to
respondent.
According to respondent’s traffic engineer, Charles Raymond Lewis II,
the diagonal signs are warning travelers about the creek that flows through the
tunnel, not the size of the tunnel.
W.Va.J REPORTS
STATE COURT OF CLAIMS 99
tractor trailer made it through the tunnel and arrived at the Greenbrier State
Forest side of the tunnel, it was no longer able to carry the cargo and Mr.
Stalling had to call for assistance.’
Sometime after the incident, Trooper T. L. Bragg, a member of the West Virginia
State Police, arrived at the scene, conducted an investigation, and filed a
report, but he did not issue Mr. Stalling a citation. Employees from Dixon’s,
Inc., also arrived at the scene with a flat-bed truck and transferred the cargo
for Mr. Stalling and gave him an escort over Kate’s mountain to Dixon’s, Inc.
Later in the morning, photographs of the area were taken by Mr. Stalling. Afterwards,
Mr. Stalling traveled back to Zanesville, Ohio, without the cargo.
Claimant sustained loss in the amount of $5,178.40. This loss reflects an
estimate for repair of the trailer in the amount of $4,394.90.2 Currently,
claimant still owns the trailer. The loss also reflects the amount of $783.50
for services rendered to claimant by Dixon’s, Inc.. at the scene of the
incident. Claimant did not have collision damage insurance on his truck or its
contents.
The Court is of the opinion that respondent failed to reasonably maintain the
roadway portion of the tunnel on Secondary Route 60/14. The combination of the
height of the tunnel and the creek which runs through the tunnel creates an
unreasonable risk for motorists. Travelers are forced to maneuver their
vehicles to the left side of the one lane road, which in turn increases the
immediacy that a motorist’s vehicle will strike some point of the tunnel’s
arch. At the time of the accident, there were no signs warning travelers of the
double hazard they are approaching. Notwithstanding respondent’s negligence,
the Court is also of the opinion that claimant’s employee, Donald Lee Stalling,
was negligent in his operation of the tractor trailer. As Mr. Stalling made his
way to the tunnel, there were signs indicating that there could be problems
ahead for a tractor and trailer. Mr. Stalling could have used the open field
across from the UPS office to turn around. Instead, Mr. Stalling risked the
chance of the tractor trailer not making the clearance. However, under the dire
circumstances, Mr. Stalling’s actions were not totally unreasonable.
In a comparative negligence jurisdiction, such as West Virginia, the negligence
of a claimant can reduce or bar recovery of a claim. Based on the above, the
Court fmds
‘As a safety precaution, tractor trailer drivers do not back up once in a
precarious situation, such as in the present case.
2The fair market value of the trailer in the previous condition was
approximately the sum of $5,700.00. After repairs, the trailer’s value
decreased approximately to the sum of $4,500.00.
100 REPORTS
STATE COURT OF CLAIMS [W.Va.
that claimant was 20% negligent for the incident that occurred. Since
claimant’s driver’s negligence is not greater than or equal to the negligence
of respondent, claimant may recover 80% of the loss sustained.
In view of the foregoing, the Court makes an award to claimant in the amount of
80% of the damages for a total award of $4,142.72.
Award of $4,142.72.
OPINION ISSUED DECEMBER 6, 1999
RIVER VALLEY CHILD DEVELOPMENT SERVICES
VS.
DEPARTMENT OF HEALTH AND HUMAN RESOURCES
(CC-98-4 15)
Thomas J. Obrokta, Jr., Attorney at Law, for claimant.
Joy M. Cavallo, 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 the sum of $7,788.00 for an accepted bid that was negligently
revoked and then rebid. However, claimant has agreed to settle and relinquish
this claim against respondent for the amount of $5,000.00. Through the
settlement agreement, respondent admits that claimant is entitled to recover a
sum certain and that the amount of $5,000.00 is a fair and reasonable. The
Court is aware that respondent does not have a fiscal method for paying claims
of this nature; therefore, the claim has been submitted to this Court for
determination.
In accordance with the settlement agreement entered into by the parties, the
Court hereby makes an award to claimant in the amount of $5,000.00.
Award of $5,000.00.
OPINION ISSUED DECEMBER 6, 1999
CLIFFORD S. SUMMERFIELD
W.Va.] REPORTS
STATE COURT OF CLAIMS 101
VS.
DIVISION OF HIGHWAYS
(CC-98-325)
Claimant appeared pro
se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
his vehicle striking a hole while he was traveling eastbound on Route 60/14
(Kanawha Terrace), about one-half mile west from McKinley Junior High School in
Kanawha County. Route 60/14 (Kanawha Terrace) is a road maintained by
respondent in Kanawha County. The Court is of the opinion to make an award for
the reasons more fully stated below.
The incident giving rise to this claim occurred on August 25, 1998, at
approximately 6:30 to 7:00 p.m. At dusk that evening, the weather was clear.
Normally, claimant does not travel Route 60/14. Route 60/14 is a two lane road
that is about twenty-two feet wide, with eleven feet per lane. As claimant
proceeded along Route 60/14 at a speed of thirty to thirty-five miles per hour
in a thirty miles per hour speed zone, there was traffic on the road.
Unbeknownst to claimant, there was a hole on Route 60/14. The hole was
approximately eight to ten inches wide and eight inches deep. When claimant
observed the h ole, he was unable to avoid a collision because of oncoming
traffic. Claimant’s 1996 Chevrolet Prism struck the hole. The resulting injury
to claimant’s vehicle was that the passenger side front and rear wheels as well
as struts had to be replaced and the vehicle aligned. Claimant had a deductible
feature in the amount of $200.00 in his collision insurance coverage.
The position of respondent was it did not have notice that there was a hole at
this location. After an inspection of the area in question, respondent was
unable to fmd the hole in question. While, the exact location of the hole was
unknown, there has been repair work on Route 60/14. There have been no further
complaints regarding a hole on Route 60/14.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of motorist upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent liable
for road defects of this type, claimant must prove that respondent had actual
or constructive notice. Pritt vs.
Dept. of Highways, 16 Ct. Cl. 8
(1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
102 REPORTS STATE
COURT OF CLAIMS [W.Va.
In the present claim, the evidence established that respondent at least had
constructive notice of the defect on Route 60/14. Photographic evidence
introduced at the July 9, 1999, hearing demonstrated that the hole on Route
60/14 was not a recent condition. The Court is of the opinion that respondent
did not take reasonable steps to ensure the safety of travelers on Route 60/14.
Consequently, there is sufficient evidence of negligence upon which to base an
award.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant limited to the sum of $200.00, the deductible feature in claimant’s
collision insurance policy.
Award of $200.00
OPINION ISSUED DECEMBER 6, 1999
DAVID ALLEN TOTO
VS.
DIVISION OF HIGHWAYS
(CC-98-3 15)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of a
negligently maintained berm while he was traveling westbound on Route 23/7,
Clifton Heights Boulevard, approximately one-hundred-seventy-five feet east
from Route 23/5,
Cedar Rocks. Route 23/7 is a road
maintained by respondent in Ohio County. The Court is of the opinion to make an
award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on August 11, 1998, at
approximately 7:45p.m. On the dry evening in question, claimant’s wife,
Phyllis Renae Toto, was proceeding westbound along Route 23/7, just below Jones
Street, to her parents’ residence, which is forty minutes away from her Adena,
Ohio, residence. At this location on Route 23/7, the right side of the road has
a downward slope and the left side of the road has a bank with a hillside.
Claimant’s wife travels Route 23/7 about once per week. In the past, claimant’s
wife had not noticed the deterioration in the berm of the road. As she drove on
the narrow, twelve to fourteen foot, black top, second
W.Va.] REPORTS
STATE COURT OF CLAIMS 103
priority local service road, she was confronted by three oncoming vehicles.
When the vehicles passed her 1998 Chevy Malibu, the vehicle’s passenger side
front tire struck the edge of the pavement, which was experiencing
deterioration in the berm about ten to twelve inches deep.
The incident burst the vehicle’s tire. Since claimant’s wife was not able to
repair the tire, the vehicle remained on the side of the road until her
brother, a mechanic, could arrive to render assistance. The resulting loss to
claimant was in the amount of $105.82. Claimant’s vehicle was insured under a
motor vehicle insurance policy that contained a deductible feature of $250.00.
The position of the respondent was that it did not have actual or constructive
notice of the deterioration of the berm along Route 23/7. Respondent previously
had no record of any complaint about deterioration in the berm of Route 2317.
This Court has been very consistent in its opinions in berm claims. In Sweda
vs. Department of Highways, this Court held:
“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.” Id. 13 Ct. Cl. 249 (l980)(citing 39 Am. Jur.
2d “Highways, Streets, and Bridges” § 488).
When a motorist uses the berm of the road in an emergency situation, that
motorist may be entitled to recover damages if the berm is not properly
maintained by respondent. Meisenhelder vs. Department of Highways, 18
Ct. Cl. 80 (1990).
In this present claim, the Court is of the opinion that the berm on Route 23/7,
Clifton Heights Boulevard, at the location of the incident, was not maintained
properly by respondent. Due to the narrow size of the road and berm
deterioration, claimants wife did not proceed onto the berm by her own choice.
In effect, she was forced off the road at the moment she was confronted by
oncoming traffic.
In view of the foregoing, the Court is of the opinion to and does make award in
the amount of$105.82.
Award of $105.82.
OPINION ISSUED DECEMBER 6, 1999
PHILLIP A. WARD
104 REPORTS
STATE COURT OF CLAIMS [W.Va.
VS.
DIVISION OF CORRECTIONS
(CC-98-289)
Claimant appeared pro Se.
Joy M. Cavallo, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for the loss of personal property by respondent’s
employees at the Mt. Olive Correctional Center, a facility owned and operated
by respondent in Fayette County. Claimant is currently incarcerated in this
correctional center. The Court is of the opinion to make an award in this claim
for the reasons more fully stated below.
The incident giving rise to this claim occurred on or about January 8, 1998. On
the date in question, claimant was sent to lock-up for forty-five days.
Claimant’s personal property was placed in a laundry cart and taken to the
State Shop, a restricted area, in order to be inventoried.’ Among claimant’s
personal property was a pair of Reebok Kamikaze II basketball shoes and various
legal papers regarding claimant’s criminal case. Claimant’s personal hygiene
items were removed from the cart before the rest of his personal property was
sent to the State shop to be inventoried. After removing claimant’s personal
hygiene items, the laundry cart containing claimant’s personal property
remained outside of the State Shop until inventoried. The inventory of
claimant’s personal property was conducted by Corporal Michael H. Cliver. Cpl.
Cliver thoroughly inspected claimant’s personal property and indicated the
items on the claimant’s personal property form. According to Cpl. Cliver there
were no basketball shoes or legal papers in claimant’s cell, so these items
were not indicated on claimant’s personal property form. While Cpl. Cliver
described his documentation process as “meticulous,” there were other personal
property items, such as a television and stereo, that also were not indicated
on claimant’s personal property form, but were in his possession at the time.
1Respondent uses a cart that holds approximately twenty bushels and is about
three and a half to four feet high. The cart is on wheels and is moved to a
secure location. Smaller personal property items are placed into plastic bags
and then placed into the cart. Once an inmate’s personal property is placed in
the cart, tape is placed over the top of the cart in a “X” type design. While
tape is placed on top of the cart for security purposes, some smaller items
that have been placed in bags can be removed without breaking the tape.
W.Va.] REPORTS
STATE COURT OF CLAIMS 105
When claimant’s personal property was brought to him at a later time, the
basketball shoes and legal papers were missing. According to Timothy Ray Moses,
Storekeeper I, when he received the cart containing claimant’s personal
property, the tape that had been placed on it was s till intact. However, when
Carl Shillings, Correctional Counselor I, received the cart that contained
claimant’s personal property, the tape had been removed and the box containing
the basketball shoes as well as the envelope containing the legal papers were
empty. After finding his personal property items missing, claimant followed the
proper procedure for filing a grievance with the appropriate o fficials.
Neither claimant nor respondent was able to determine the whereabouts of claimant’s
property.
The loss suffered by claimant was estimated to be $32.75 which amount
represents the cost of the new Reebok Kamikaze II basketball shoes were
purchased by claimant. While the legal papers of claimant are described as
“priceless,” he will be able to obtain the transcripts of his criminal case
free of charge. The other legal papers of claimant may be obtained by
contacting his attorney.
When personal property of an inmate is recorded for the inmate and then taken
for storage purposes, this Court has previously viewed such situations as a
bailment. According to Black’s Law Dictionary, a bailment is:
“A delivery of goods or personal property, by one person (bailor) to another
(bailee), in trust for the execution of a special object upon or in relation to
such goods, beneficial either to the bailor or bailee or both, and upon a
contract, express or implied, to perform the trust and carry out such object,
and thereupon either to redeliver the goods to the bailor or otherwise dispose
of the same in conformity with the purpose to the trust. The bailee is
responsible for exercising due care toward the goods. Id 95 (6t ed.
1990).
Consequently, respondent, the bailee, must have satisfactory documentation for
return of the property to the inmate, the bailor. Heard vs. Division of
Corrections, 21 Ct. Cl. 151 (1997). Claimant has the burden of proof to
demonstrate by a preponderance of the evidence that there was a delivery of
claimant’s property to respondent before a prima facie case is established for
the failure to return items claim accrues. Nolan vs. Division of
Corrections, 19 Ct. Cl. 89 (1992).
In the instant claim, claimant has established a prima facie case of bailment
for his basketball shoes and legal papers. The evidence adduced at the October
7, 1999, hearing demonstrated that there was a delivery of claimant’s property
to respondent. The Court has determined that respondent failed adequately to
care for claimant’s personal property since it was not returned to him.
106
REPORTS STATE COURT OF CLAIMS [W.Va.
In view of the foregoing, the Court is of the opinion to and does make an award
in the amount of $32.75 to claimant.
Award of $32.75.
OPINION ISSUED DECEMBER 6, 1999
JOHN KENNETH WALTERS
VS.
DIVISION OF CORRECTIONS
(CC-96-59 1)
Claimant appeared pro Se.
Joy M. Cavallo, Assistant Attorney
General, for respondent.
PER CURIAM:
Claimant brought this claim to recover the value of his stereo system that was
broken by respondent’s employees at Mount Olive Correctional Center. Currently,
claimant is an inmate at Saint Mary’s Correctional Center, but at the time of
the incident, claimant was an inmate at Mount Olive Correctional Center in
Fayette County. The Court is of the opinion to make an award to the claimant
for reasons more fully stated below.
The incident giving rise to this claim occurred on October 2, 1995. During
lock-down, two guards at Mount Olive Correctional Center began a shake-down of
claimant’s cell. While conducting the shake-down, one of the guards dropped
claimant’s AIWA AMIFMJCassette/CD stereo system. At the September 3, 1999,
hearing, respondent stipulated that one ofthe guards dropped claimant’s stereo
system.1 Claimant then discovered that there was a dent on the stereo system
and the re-wind button did not function properly. The value of the stereo
system was estimated at $420.00. After the incident, claimant filed a grievance
with the warden and later sent the stereo system to respondent’s electronic
technician III, Scott Sheppard, for examination on May 6, 1996. Respondent’s
electronic technician III informed claimant that the stereo system was not
repairable. Claimant alleges that the stereo system was never returned.
The position of respondent was that no bailment situation existed because
Prior to the incident, claimant had owned the stereo system for ten months.
W.Va.] REPORTS
STATE COURT OF CLAIMS 107
claimant was in possession of the stereo system at the time of the stereo
system’s disappearance. Documentary evidence adduced by respondent revealed
that claimant acknowledged his possession of the stereo system on several
signed forms during the time period in question. On claimant’s signed property
card of June 1, 1994, the stereo system was received by claimant. A signed
property form dated May 12, 1995, indicated that claimant was still in
possession of the stereo system. On September 10, 1996, an Appliances-Music
Equipment form signed by claimant again demonstrated that the stereo system was
still in the possession of claimant. A post-hearing affidavit of Substance
Abuse Therapist II, Jamey Wilson Hunt, states that he witnessed claimant sign
the September 10, 1996, form and that he saw claimant in actual possession of
the stereo system at that time.’ Not until September 12, 1996, was there
documentary evidence on claimant’s resident personal property form that the
stereo system was no longer in the possession of claimant. Respondent further
alluded to the fact that claimant did not clearly explain to the Court why the
forms were signed if some of his personal property had not been received.
When personal property of an inmate is recorded for the inmate and then taken
for storage purposes, this Court has previously viewed such situations as a
bailment. Respondent must have satisfactory documentation for return of the
property to the inmate. Heard v. Division of Corrections, 21 Ct. Cl. 151(1997). Only when respondent, the bailee,
has acknowledged possession of goods does claimant’s, the bailor, cause of
action accrue. Nolan
v. Division of Corrections, 19 Ct. Cl.
89 (1992). A claimant, bailor, must prove that a delivery to respondent,
bailee, occurred before a prima facie case is established for the bailee’s
failure to return items. Id. In such situations, claimant, the bailor, has the
burden of proof. Id.
In this present claim, claimant has
failed to establish a prima facie case of bailment or negligent care of
claimant’s stereo system. Despite his contention, respondent produced
sufficient documentary evidence to conclude that claimant was in receipt of his
stereo system. However, it is undisputed that an employee of the respondent
dropped the claimant’s stereo and caused the damage to the stereo of which the
he complains.
The Court, having reviewed all of the evidence in this claim, is of the opinion
that claimant is entitled to recover a nominal sum for the damage to his stereo
and,
‘At the September 3, 1999, hearing, this claim was submitted subject to further
inquiry into institutional records regarding the whereabouts of the stereo
system. The affidavit of Substance Abuse Therapist II, Jamey Wilson Hunt, was
submitted to the Court by respondent’s counsel on September 29, 1999, and filed
as a post- hearing exhibit and made part of the record on that date.
108 REPORTS
STATE COURT OF CLAIMS [W.Va.
further, the Court has determined that $100.00 is fair and reasonable
compensation for said damage.
In view of the foregoing, the Court makes an award of$ 10000 to claimant for
the damage to his stereo.
Award of$100.00.
OPINiON ISSUED DECEMBER 6, 1999
WV REGIONAL JAIL AND CORRECTIONAL
FACILITY ATHORITY
VS.
DIVISION OF CORRECTIONS
(CC-99-45 1)
Chad Cardinal, Attorney at Law, for claimant.
Joy M. Cavallo, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent’s Answer.
Claimant, Regional Jail and Correctional Facility Authority, provides and
maintains the Eastern Regional Jail, the Central Regional Jail, the South
Central Regional Jail, the Southern Regional Jail, the Southwestern Regional
Jail, and the Northern Regional Jail as facilities for the incarceration of
prisoners who have committed crimes in various counties. Some of the prisoners
held in these regional jails h ave b een s entenced t o facilities o wned a nd
m aintained b y the r espondent, Division ofCorrections. Claimant brought this
action in the amount of $4,017,465.50, to recover the costs ofhousing
and providing associated services to prisoners who have been sentenced to a
State penal institution, but due to circumstances beyond the control of the
claimant, these prisoners have had to remain in the regional jails for periods
of time beyond the dates of the commitment orders.
Respondent filed an Answer admitting the validity of the claim and that the
amount of the claim is fair and reasonable.
This Court has determined in prior claims by claimant for the cost of housing
inmates that respondent is liable to claimant for these costs, and the Court
has made the appropriate awards. This issue was considered by the Court
previously in the claim of
W.Va.j REPORTS
STATE COURT OF CLAIMS 109
County Comm’n. of Mineral County v. Div. of Corrections, 18 Ct. Cl. 88
(1990), wherein the Court held that the respondent is liable for the cost of
housing inmates.
In view ofthe foregoing, the Court makes an award to claimant in the amount of
$4,017,465.50.
Award of $4,017,465.50.
OPINION ISSUED DECEMBER 6, 1999
JOAN L. WILLIAMS
VS.
DIVISION OF HIGHWAYS
(CC-99-1 14)
Claimant appeared pro Se.
Andrew F, Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
her vehicle striking rocks while traveling northbound on U.S. 250, also known
as Route 2, five miles from McMechen in the “Narrows”. U.S. 250 is a road
maintained by respondent in Marshall County. The Court is of the opinion to
make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on February 24, 1998, at
approximately 9:00 to 9:30 p.m. On the rainy and foggy night in question,
claimant was traveling northbound on U.S. 250 five miles from McMechen in an
area locally referred to as the “Narrows” in Marshall County. U.S. 250 is a
dimly lit two lane road that is marked as a “falling rock” area with a speed
limit of fifty miles per hour. Earlier in the evening, claimant had traveled to
Moundsville in order to pick up her nephew who was employed at the Moundsville
Kentucky Fried Chicken. Claimant carefully proceeded along U.S. 250 with the
aid of the 1998 Geo Prism’s headlights at a speed of about forty miles per
hour. There was no other traffic on the road. Suddenly, claimant noticed rocks
in both lanes of the road. Claimant drove around the rocks in the right lane
and then proceeded around rocks in the left lane. After driving back into the
right lane, claimant’s vehicle struck a rock, damaging the left front tire and
wheel. While claimant saw the rocks on the road, she could not identify the
exact rocks that she struck with her vehicle. The incident was later reported
to the police, but no
110 REPORTS STATE
COURT OF CLAIMS [W.Va.
report was issued.
After the incident, claimant’s vehicle began to make noises and she took the
vehicle to the dealership garage for repairs. The damaged sustained to
claimant’s vehicle was in the amount of $315.80. While claimant had a
deductible feature in her motor vehicle insurance coverage policy, the amount of
the deductible was $500.00. Thus, claimant was responsible for the damage
sustained to the vehicle.
The position of respondent was that it did not have notice of the rocks and
rock debris on U.S. 250. Respondent admitted that the area in question was a well
known “rock fall” area, but argued that the area was not significantly
hazardous to the traveling public. The area has been clearly marked to protect
the traveling public. Two federal standard size signs, marked “Notice Falling
Rock Next 1 1/2
Mi” were erected in the area in question
to notify the traveling public of potential problems. In addition, overhead
lights were installed on U.S. 250 in 1976. This area is regularly patrolled and
on the night in question, the weather was below zero and respondent was
conducting snow removal and ice control. Respondent then received information
regarding the incident from a person other than claimant. According to
respondent’s daily records, emergency service was dispatched to the site in
order to remove the rocks. Before this time, respondent asserted that there was
no prior notice to respondent of any rocks on U.S. 250.
The general rule of this Court has been that in claims of this nature, a
claimant must positively demonstrate that respondent had notice or constructive
notice of a dangerous condition posing a threat of injury to property, such as
falling rocks and rock debris. Mitchell
vs. Division of Highways, 21 Ct. Cl.
91(1996); Coburn vs. Division
ofHighways, 16 Ct. Cl. 68(1986);
Hammond vs. Division of Highways, 11 Ct. Cl. 234 (1977). Besides respondent’s notice
ofthe dangerous condition, the evidence must also establish that respondent had
a reasonable time to take suitable action to protect motorists. Alkire vs. Division offlighways, 21 Ct. Cl. 179(1997). Knowledge of other rock falls in
the area near an incident can be sufficient to give respondent notice of a
hazard to the traveling public. Cole
vs. Division of Highways, 21 Ct. Cl.
15 (1995).
In the instant claim, the Court is of the opinion that this portion of U.S. 250
in the “Narrows” is a hazard to the traveling public. Respondent has known
since 1941 that this area is notorious for potential rock falls. Dunn vs. Division of Highways, 19 Ct. Cl. 163 (1992). This portion of road is such a
hazard to the traveling public that warning signs and regular patrols are not
sufficient to protect the traveling public on this section of highway. This
Court in fmding the State Road Commissioner liable in the claim Varner ‘s Adm ‘n v. State Road Comm ‘n, stated:
“[W]hen the State Road Commissioner knows or should know that an
unusually dangerous condition exits, there is a duty to inspect and to
W.Va.J REPORTS
STATE COURT OF CLAIMS 111
correct the condition within the limits of the funds appropriated by the Legislature
for maintenance purposes.”
Id., 8 Ct. Cl. 119, 122 (1970); See also Cole, Supra; Smith vs.
Division of Highways, 11 Ct. Cl. 221 (1997).
Just last year, this Court heard two separate claims regarding the “Narrows”
area on U.S. 250 in Marshall County. See Peck & Peck vs. Division
ofHighways (CC- 97-164 & CC-97-375,unpublished opinion issued May29,
1998); Dimmick & Dimmick vs. Division of Highways (CC-96-56 1,
unpublished opinion issued May 29, 1999). Again this year, this Court heard
this claim and another, Hundagen vs. Division of Highways (CC-98-303,
unpublished opinion), regarding the same area in question. In many of the
claims heard in the past by the Court, negligence on the part of the respondent
was noted by the Court and awards were made. The notoriety of this particular
area of U.S. 250 cannot be ignored by this Court. In Dimmick, one of
respondent’s employees made the analogy that driving on U.S. 250 in the
“Narrows” in Marshall County was similar to playing “Russian Roulette.” See Id.
However, even after all of the previous incidents, no remedial measures
have been taken by respondent. Routine patrols do not address the problem.
Frankly, the Court is at a loss as to why respondent refuses to remedy a unique
and dangerous condition. The respondent is on notice of a hazardous condition
which poses potential danger to the traveling public. Therefore, the Court
concludes that the conduct of respondent constitutes negligence.
The Court is of the opinion that the evidence adduced at the September 16,
1999, hearing demonstrated that a hazardous condition existed at the time of
claimant’s incident. There was no showing that respondent did anything beyond
the routine patrolling of U.S. 250. Consequently, there is sufficient evidence
of negligence upon which to base an award.
In view of the foregoing, the Court is of the opinion to and does make an award
to the claimant in the amount of $315.80.
Award of $315.80.
‘Pursuant to West Virginia Code Sections 1 7-2A- 1 and 5F-2- 1, the Division of
Highways, formerly the office of State Road Commissioner, was transferred to,
and administratively attached to, the Department of Transportation by the
Executive Reorganization Act of 1989.
112 REPORTS
STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED JANUARY 7, 2000
BROWNING FERRIS INDUSTRIES
VS.
DIVISION OF CORRECTIONS
(CC-99-364)
Claimant appeared pro Se.
Joy M. Cavallo, Assistant Attorney
General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondents Answer.
Claimant seeks $374.25 for providing waste removal services at several
of respondent’s facilities. The documentation for these services was not
processed for payment within the appropriate fiscal year; therefore, claimant has
not been paid. In its Answer, respondent admits the validity of the claim as
well as the amount, and states that there were sufficient funds expired in the
appropriate fiscal year from which the invoice could have been paid.
Accordingly, the Court makes an award to claimant in the amount of $374.25. Award
of $374.25.
OPINION ISSUED JANUARY 7, 2000
CORRECTIONAL FOODSERVICE MANAGEMENT
Vs.
DIVISION OF CORRECTIONS
(CC-99-69)
Claimant represents self.
Joy M. Cavallo, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent’s Answer.
Claimant seeks $69,289.25 for providing food services in May 1998 to Mt.
W.Va.J REPORTS
STATE COURT OF CLAIMS 113
Olive Correctional Center, a facility of the respondent. The documentation for
these services was not processed for payment within the appropriate fiscal
year; therefore, the claimant has not been paid. In its Answer, the respondent
admits the validity of the claim and the amount, and states that there were
sufficient funds expired in the appropriate fiscal year from which the claim
could have been paid.
In view of the foregoing, the Court makes an award in the amount of
$69,289.25.
Award of $69,289.25.
OPINION ISSUED JANUARY 7, 2000
DICKINSON FUEL COMPANY, INC.
VS.
ALCOHOL BEVERAGE CONTROL ADMINISTRATION
(CC-99-4 15)
Claimant appeared pro Se.
Joy M. Cavallo, 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 $508.57 for repairing respondent’s air cooling system at its
Charleston office in Kanawha County. The documentation for these services was
not processed for payment within the appropriate fiscal year; therefore,
claimant has not been paid. In its Answer, respondent admits the validity of
the claim as well as the amount, and states that there were sufficient funds
expired in the appropriate fiscal year from which the invoice could have been
paid.
Accordingly, the Court makes an award to claimant in the amount of $508.57.
Award of $508.57.
OPINION ISSUED JANUARY ? 2000
GARY PHILLIPS
114 REPORTS
STATE COURT OF CLAIMS [W.Va.
VS.
REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY
(CC99-468)
Claimant appeared pro Se.
Joy M. Cavallo, 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, formerly an inmate at the Southern Regional Jail, had some of his
personal property, including a pair of Gortex Rocky boots with a thousand grams
of thinsulate, inventoried and stored during his period of his incarceration by
respondent’s Southern Regional Jail employees. When claimant inspected his
inventoried and stored personal property items, he discovered that his boots
were missing. Thus far, respondent’s Southern Regional Jail employees have been
unable to produce claimant’s boots, which had an estimated value in the amount
of $200.00.
In its Answer, respondent admits the validity of the claim and that the amount
is fair and reasonable. The Court is aware that respondent does not have a
fiscal method for paying claims of this nature; therefore, the claim has been
submitted to this Court for determination.
This Court has taken the position in prior claims that if a bailment situation
has been created, respondent is responsible for property of an inmate which is
taken from that inmate, remains in its custody, and is not produced for return
to the inmate.
Accordingly, the Court is of the opinion to and does makes an award to the
claimant for the value of his lost property in the amount of $200.00.
Award of $200.00.
OPINION ISSUED JANUARY 7, 2000
THOMAS MEMORIAL HOSPITAL
VS.
DIVISION OF JUVENILE SERVICES
(CC-99-495)
W.Va.1 REPORTS
STATE COURT OF CLAIMS 115
Claimant appeared pro Se.
C. Scott McKinney, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondents Answer.
Claimant seeks $10.20 for providing medical services to ajuvenile at the South
Central Regional Juvenile Detention Center, a facility of respondent in Dunbar,
Kanawha County. The documentation for these services was not processed for
payment within the appropriate fiscal year; therefore, claimant has not been
paid. In its Answer, respondent admits the validity of the claim as well as the
amount, and states that there were sufficient funds expired in the appropriate
fiscal year from which the invoices could have been paid.
Accordingly, the Court makes an award to claimant in the amount of$l0.20.
Award of$l0.20.
OPINION ISSUED JANUARY ? 2000
VALLEY RADIOLOGISTS, INC.
VS.
DIVISION OF JUVENILE SERVICES
(CC-99-442)
Claimant appearedpro se.
C. Scott McKinney, 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 $226.00 for providing medical services to a juvenile at the
Northern Regional Juvenile Detention Center, a facility ofrespondent in
Wheeling, Ohio County. The documentation for these services was not processed
for payment within the appropriate fiscal year; therefore, claimant has not
been paid. In its Answer, respondent admits the validity of the claim as well
as the amount, and states that there were sufficient funds expired in the
appropriate fiscal year from which the invoice could have
116 REPORTS
STATE COURT OF CLAIMS [W.Va.
been paid.
Accordingly, the Court makes an award to claimant in the amount of $226.00.
Award of $226.00.
OPINION ISSUED JANUARY12, 2000
CHARLESTON AREA MEDICAL CENTER, INC.
VS.
DIVISION OF CORRECTIONS
(CC-99-265)
F. Chris Gall, Jr., Attorney at Law, for claimant.
Joy M. Cavallo, 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 in the amount of $120,563.33 for medical services
rendered to an inmate in the custody of respondent. Respondent, in its Answer,
admits the validity of the claim, but states that there were insufficient funds
in its appropriation for the fiscal year in question from which to pay the
claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et al. vs.
Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED JANUARY12, 2000
DAVIS MEMORIAL HOSPITAL
VS.
DIVISION OF CORRECTIONS
(CC-99-486)
W.Va.] REPORTS
STATE COURT OF CLAIMS 117
Claimant appeared pro Se.
Joy M. Cavallo, 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 in the amount of $34,331.13 for medical services
rendered to an imnate in the custody of respondent. Respondent, in its Answer,
admits the validity of the claim, but states that there were insufficient funds
in its appropriation for the fiscal year in question from which to pay the
claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et aL vs.
Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED JANUARY 12, 2000
THE CONTINENTAL INSURANCE COMPANY
VS.
WEST VIRGINIA STATE POLICE AND
DEPARTMENT OF ADMINISTRATION
(CC-98-444)
Charles F. Bagley, III, Attorney at Law, for claimant.
John Poffenbarger and Brian Casto, Attorneys at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the
claim were set forth as follows:
1. On May 6, 1996, claimant executed a performance bond as surety for Jo- Del,
Inc., a contractor for the construction of a public improvement project known
as “State Police Headquarters Requisition No. DPS9606.” The contractor and
principal
118 REPORTS STATE
COURT OF CLAIMS [WVa.
on the bond, Jo-Del, Inc., failed to complete all the work on the project in
accordance with the terms of the contact, and subsequently, defaulted on its
payment obligations to numerous sub-contractors and suppliers. Claimant, as
surety, then paid the subcontractors and engaged another contractor to complete
the project.
2. Claimant, in its performance as surety, was assessed liquidated damages in
the amount of $36,000.00 by respondent, and then filed a claim in this Court to
recover this amount. However, claimant has agreed to relinquish and settle its
claim against respondent for the sum of $21,255.00.
3. Respondents agree that the amount of damages as agreed to by the parties is
a fair and reasonable settlement of the claim.
The Court, having reviewed the facts of the claim as stated in the Stipulation,
hereby adopts the statement of facts as its own. Further, the Court has
determined that the amount of the settlement agreed to by the parties is fair
and reasonable.
In view of the foregoing, the Court is of the opinion to and does make an award
in the amount of $21,255.00 to claimant.
Award of $21,255.00.
STIPULATION ENTERED JANUARY19, 2000
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
AT&T CORPORATION,
Claimant,
v. CLAIM NO. CC-98-129
WEST VIRGINIA DEPARTMENT OF
TRANSPORTATION, DIVISION OF HIGHWAYS,
Respondent.
STIPULATION
On this day came the claimant, AT& T Corporation, by counsel, Daniel T.
Booth, and respondent, West Virginia Department of Transportation, Division of
Highways, by counsel, Andrew F. Tarr, and announced to the Clerk of the Court
of
Claims that the parties have agreed to stipulate to the above-referenced claim.
Specifically, the parties stipulate the following:
W.Va.J REPORTS
STATE COURT OF CLAIMS 119
1. On or about April 17, 1996, in the course of excavating debris caused by
flooding, Ground Breakers, Inc., a contractor employed by the respondent,
accidentally cut a fiber optic cable owned and operated by the claimant.
2. The location of the incident described in the preceding paragraph ‘Nas a
stream in Mineral County, West Virginia.
3. As a result of the fiber optic cable being cut, claimant suffered damages.
4. Respondent admits to some, but not all, responsibility for the events that
led to the cutting of claimant’s cable on April 17, 1996, and further admits
that the degree of its responsibility in the events that precipitated the
cutting of claimant’s cable creates a moral obligation on the part of
respondent to provide some compensation to claimant for its loss.
5. Respondent agrees to reimburse claimant in the total amount of
$90,000.00 for the damages suffered in this claim.
6. I The parties to this claim agree that the total sum of $90,000.00 paid by
respondent to claimant in Claim No. CC-98-l29 acts as a full and complete
settlement, compromise and resolution of all matters in controversy in said
claim and as a full and complete satisfaction of any and all past and future
claims claimant may have against respondent arising from the matters described
in said claim.
WHEREFORE, in accordance with the agreement contained in this stipulation, this
Court makes an award of $90,000.00 to the claimant in Claim Number CC -98-129.
OPINION ISSUED JANUARY25, 2000
SHERENE N. BALLENGEE
VS.
BOARD OF TRUSTEES OF THE UNIVERSITY SYSTEM OF WV
(CC-99-395)
Claimant appeared pro Se.
Kristi A. Rogucki, Assistant Attorney General, for respondent.
PER CURIAM:
This c laim w as s ubmitted for de cision b ased upon the allegations in the
Notice of Claim and respondent’s Answer.
Claimant, a student at West Virginia University, seeks $53.00 for
personal items that were ruined when the sprinkler system in her dormitory room
in Lyon Tower malfunctioned. In its Answer, respondent admits the validity of
the claim
120 REPORTS
STATE COURT OF CLAIMS [W.Va.
and that the amount is fair and reasonable. The Court is aware that
respondent does not have a fiscal method for paying claims of this nature;
therefore, the claim has been submitted to this Court for determination.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $53.00.
Award of $53.00.
OPINION ISSUED JANUARY25, 2000
CABELL COUNTY COMMISSION
VS.
SUPREME COURT OF APPEALS
(CC-99-476)
William T. Watson, Attorney at Law, for claimant.
Richard Rosswurm, Attorney at Law, 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 in the amount of $8,908.00 for home confinement drug
testing fees which were collected and inadvertently credited to the wrong
account for the fiscal years 1992 through 1998, then sent to respondent.
Respondent, in its Answer, admits the validity of the claim and the amount, but
states that there were insufficient funds in its appropriation for the fiscal
year in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
reconunended based upon the decision in Airkem Sales and Service, et a!. vs.
Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISS UED JANUARY25, 2000
CORRECTIONAL MEDICAL SERVICES, INC.
VS.
DIViSION OF CORRECTIONS
W.Va.] REPORTS
STATE COURT OF CLAIMS 121
(CC-99-504)
Claimant appeared pro se.
Joy M. Cavallo, 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 in the amount of $322,005.69 for medical services
rendered to an inmate in the custody of respondent. Respondent, in its Answer,
admits the validity of the claim in the sum of $315,427.47, rather than
the amount claimed of $322,005.69. Claimant is in agreement with respondent in
its assessment that the correct amount of the claim is $315,427.47. Further,
respondent states that there were insufficient funds in its appropriation for
the fiscal year in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in A irkem Sales and Service, et aL vs.
Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED JANUARY25, 2000
LOGAN MERRITT
VS.
BOARD OF TRUSTEES OF THE UNIVERSITY SYSTEM OF WV
(CC-99-472)
Claimant appeared pro se.
Kristi A. Rogucki, Assistat 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, a student at West Virginia University, seeks $339.18 for the value of
his stereo system, model number AIW NSXA777, which was ruined when water
entered through his dormitory room window at Bennett Tower and onto his stereo
system. About two weeks prior to the incident, claimant informed the Bennett
Tower maintenance staff of the problem with the window and the maintenance
staff had taken corrective measures. However, the sealant around the window had
122 REPORTS STATE
COURT OF CLAIMS [W.Va.
apparently dried out and the window was in need of replacement. In its Answer,
respondent admits the validity of the claim and that the amount is fair and
reasonable. The Court is aware that respondent does not have a fiscal method
for paying claims of this nature; therefore, the claim has been submitted to
this Court for determination.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $339.18.
Award of $339.18.
OPINION ISSUED JANUARY28, 2000
SHANNON ADKINS
VS.
DIVISION OF HIGHWAYS
(CC-98-368)
Claimant appeared pro Se.
Andrew F. Tarr, Attomeyat Law, for respondent.
PER CURIAM:
Claimant brought this action for the value of her vehicle when her vehicle went
into a dug out area created by respondent which was located off of the traveled
portion of W.Va. Route 55 in Craigsville. WVa. Route 55 is a road
maintained by respondent in Nicholas County. The Court is of the opinion to
make an award in this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on September 18, 1998, at
approximately 9:00 p.m. On the clear night in question, claimant and her
husband were proceeding along W.Va. Route 55, a high priority road, in
her 1986 Mercury Lynx with the aid of the vehicle’s lights. Claimant decided
that she wanted to return to her residence so she attempted to turn the vehicle
around. Claimant drove her vehicle into the Bubbs Produce parking lot. As she
maneuvered the turn, the right side of the vehicle went into a large, unmarked
hole that was between the parking lot and the road. Claimant had not observed
this dug out area previously. The hole, which was by a utility pole four feet
from the white line marking the edge of the pavement, was approximately four feet
by four feet in size. The hole was also at least four feet deep and it was
partially covered by two sheet metal plates.’
‘The sheet metal plates were four feet by eight feet and had a thickness of V2 inch. Each
sheet metal plate weighed about one thousand pounds.
W.Va.} REPORTS
STATE COURT OF CLAIMS 123
Claimant’s vehicle sustained extensive damage. After the incident, Nicholas
County Sheriff Wayne Plummer happened upon the scene. Deputy Sheriff Plummer,
after determining that the hole was a hazard, marked off the area with cones
from the Craigsville Fire Department and evidence tape he had in his vehicle.
Claimant’s vehicle was then pushed to the local Napa Auto Parts store. Later,
the vehicle was determined to be “totaled.” Since claimant’s vehicle was
insured only under a liability policy, there was no insurance coverage for this
incident. The value of the vehicle was estimated in the amount of $500.00.
The position of respondent was that it was not negligent in its maintenance of
W.Va. Route 55 in Craigsville. Respondent acknowledged that it was responsible
for creating the large dug out area in order to remedy a drainage problem, but
asserts that it had taken the proper precautions to cover the hole it had
created. In addition, respondent acknowledged that the area in question was
known to be used by drivers as a turn-around area and that large trucks came in
and out of the parking lot. According to respondent, barrels and cones were
placed at the scene but had been stolen on several occasions. Several days
before claimant’s incident, respondent did not have material to fill in the
hole, so sheet metal plates were placed over the hole. The day following the
incident, the area was repaired.
The evidence adduced at the November 4, 1999, hearing established that
respondent was negligent in its maintenance of W.Va. Route 55 at the site in
question. Respondent was aware of the public use of the area and it should have
exercised more reasonable care in the inspection of the hole until permanent
repairs could be made. The Court is of the opinion that the actions of
respondent were negligence for which claimant may recover the sustained loss.
Consequently, there is sufficient evidence of negligence upon which to base an
award.
In view of the foregoing, the Court is of the opinion to and does make an award
in this claim in the amount of $500.00, for the estimated value of the vehicle.
Award of $500.00.
OPINION ISSUED JANUARY28, 2000
BRENDA ALVARADO
VS.
DIVISION OF HIGHWAYS
(CC-98-73)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
124 REPORTS
STATE COURT OF CLAIMS [W.Va.
PER CURIAM:
Claimant brought this action for damage sustained to her vehicle when it went
into a hole while traveling southbound on Route 19, five to eight miles south
of exit 57, near mile post 5. Route 19 is a road maintained by
respondent in Nicholas County. The Court is of the opinion to make an award in
this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on February 24, 1998, at
approximately 10:30 to 11:00 a.m. On the snowy morning in question, claimant
was proceeding from her residence in Elkins southbound on Route 19 to a nursing
home in Fayette County for her employment. She was traveling at a speed of
about forty- five to fifty miles per hour. Route 19 is a two lane highway with
a speed limit of fifty-five miles per hour that was under construction at the
time of the incident. At the location in question, respondent had installed
concrete barriers on the right side of the road, and oncoming traffic was
directed to the left of claimant. According to claimant, there was no room to
maneuver a vehicle nor were there lines marking the pavement boundaries.
Unbeknownst to claimant, there was large hole in her lane of travel which was
approximately eighteen inches deep.
Claimant often travels this road in the same direction for her job. However, on
prior occasions, claimant never noticed a hole in the road. As claimant’s 1993
Toyota Corolla made its way along Route 19, the vehicle’s driver side front
wheel went into the hole on the road. Claimant asserted that even if she had
seen the hole, she would not have been able to avoid it because of oncoming
traffic. The impact bent the rim, causing a air-leak in the tire and a hubcap
to be lost. On March 19, 1999, claimant had work done on the wheel rim to
repair the air-leak. However, the repairs did not alleviate the problem.
Claimant had to keep putting air in the tire until she could get the tire
replaced on March 23, 1999. in addition, the vehicle required realignment. The
resulting loss incurred by claimant was in the amount of $260.95. Claimant’s
motor vehicle insurance policy has a deductible feature of
$500.00.
The position of respondent was that there was ongoing construction on Route
19 for twenty-six miles at the time of this incident. Respondent’s employees
were familiar with the defective condition of Route 19, and knew that it was a
substantial hole. The contractor for the Route 19 project, Geupel Construction
Company, Inc., which was under a “save harmless” obligation to respondent, was
in between two projects switching traffic and did not anticipate paving Route
19 until spring. However, respondent acknowledged that Route 19 could have been
patched in the meantime until the spring paving could be accomplished.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent
liable for road defects of this type, claimant must prove that respondent had
actual or
W.Va.J REPORTS
STATE COURT OF CLAIMS 125
constructive notice. Pritt vs. Dept.
of Highways, 16 Ct. Cl. 8 (1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
In this present claim, the evidence established that respondent had actual
notice about the hazardous condition of Route 19 in Nicholas County. As this
Court stated in Bailey vs. Div. of
Highways (CC-98-146, unpublished
opinion issued September 8, 1999), respondent had employees at the construction
site responsible for supervising the actions of the contractor with regard to
the safety of the traveling public. Respondent had an obligation and a duty to
assure that the Route 19 construction s ite w as m aintained in a p roper m
anner s uch t hat it did n ot p ose a hazard to the traveling public. The Court
is of the opinion that respondent’s employees at the construction site are
responsible for supervising the actions of the contractor, and, that on the
date of the incident herein, did not take reasonable steps to ensure the safety
of travelers upon Route 19. The failure of respondent’s employees to supervise
the contractor properly constitutes negligence for which claimant may recover
her loss.
The “save harmless” clause relied upon by respondent is not applicable in a
claim of this nature as there is no privity between claimant, a third party,
and the parties to the construction contract.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $260.95.
Award of $260.95
OPINION ISSUED JANUARY28, 2000
RONALD BROWN
VS.
DIVISION OF HIGHWAYS
(CC-99-325b)
Claimant appeared pro se.
Andrew F. Tan, Attomeyat Law, for
respondent.
PER CURL&M:
126 REPORTS
STATE COURT OF CLAiMS [W.Va.
Claimant brought this action for damage sustained when a tree fell onto his
property on County Route 68/4, Shelby Road, in Morgantown.1 County Route 68/4,
Shelby Road, is a road maintained by respondent in Monongalia County. The Court
is of the opinion to make an award in this claim for the reasons more fully set
forth below.
The incident giving rise to this claim occurred on July 28, 1999. Claimant
resides on County Route 68/4 which is a third priority paved road with a ten
foot road surface. At the location in question, respondent has a thirty feet
right of way, fifteen feet from the center of the road. Across the road from
claimant’s residence, there were several large rotten trees, about fifteen to
eighteen inches in diameter, leaning towards his residence. On two occasions in
the months prior the incident, claimant went to respondent’s Monongalia office
to inform it about the hazard that the trees potentially posed to travelers on
County Route 68/4 as well as to his residence. On another occasion, claimant
informed several of respondent’s employees, who were working in the area, of
his concerns. During the night in question, a storm caused one of the large
rotten trees to fall onto claimant’s property. The falling tree destroyed a
handicap ramp claimant had installed onto his house, sheared off a side-view
mirror on his van, and destroyed a Blue Spruce tree and four rose bushes.
Clamant sustained a loss in the sum of $559.88 as a result of the rotten tree
falling onto his property. The handicap ramp was covered under claimant’s
homeowner insurance policy for which he was responsible for the deductible
feature of $250.00. While claimant had insurance coverage for his vehicle, he
was responsible for the damage because the loss sustained to the vehicle, in
the amount of $209.88, was the less than the deductible feature of $500.00. In
addition, the four rose bushes were valued at $10.00 each. The Court estimates
the value of the Blue Spruce tree at $60.00 based upon inquiries made of
several tree nurseries in the Charleston area.
The position of respondent was that it did not have notice of the condition of
the large trees across from claimant’s residence on County Route 68/4.
Respondent asserted that a review of its records indicated that it had received
no complaints regarding the condition of County Route 68/4. According to
respondent’s daily work records, employees were dispatched to the area in
question as soon as it learned o ft he tree falling onto c laimant’s property.
i n the future, respondent anticipates doing further work when the necessary
equipment is available.
‘Claimant originally filed a claim with two separate incidents. At the
October 15, 1999, hearing the two separate claims were bifurcated, with one
claim styled CC-99-325a and the present claim styled CC-99-325b.
W.Va.J REPORTS
STATE COURT OF CLAIMS 127
The Court has previously held that when the evidence indicates that respondent
h as n otice o f a h azard, s uch a s a 1 arge rotten tree, and a r easonable
opportunity to remove it, respondent may be held liable. Jones v. Division of Highways, 21 Ct. Cl. 445 (1995).
In the present claim, the evidence adduced at the October 15, 1999,
hearing established that respondent had notice regarding the condition of the
trees across from claimant’s property on County Route 68/4. The Court is of the
opinion that respondent’s failure to act after claimant personally gave notice
to respondent about the particular tree across from his property constituted
negligence for which claimant may recover.
In view of the foregoing, the Court is of the opinion to and does make an award
to the claimant in the amount of $559.88.
Award of $559.88.
OPINION ISSUED JANUARY28, 2000
DAVID W. BURGE
VS.
DIVISION OF HIGHWAYS
(CC-98-308)
Claimant appeared pro Se.
Xueyan Zhang, Attorney t Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when his vehicle
struck a hole while traveling northbound on the 1-79 Buffalo Creek bridge near
the Gassaway exit. 1-79 is a highway maintained by respondent in Braxton
County. The Court is of the opinion to make an award in this claim for the
reasons more fully set forth below.
The incident giving rise to this claim occurred on August 16, 1998, at
approximately 7:00 p.m. On this rainy evening, claimant was traveling
northbound towards Flatwoods from the Beckley exit along 1-79 in his customized
1982 Chevrolet S-10 Pick-up truck at a speed of sixty-five miles per hour in a
seventy mile per hour speed zone. Claimant travels this portion of highway
several times each week for his employment as a security guard. On these prior
occasions, claimant has never noticed any cones, barrels, flagmen or any signs
indicating any potentially hazardous conditions on the highway surface of 1-79.
As claimant operated his vehicle in the passing lane on the reinforced concrete
overpass Buffalo Creek bridge
128 REPORTS
STATE COURT OF CLAIMS {W.Va.
near the Gassaway exit, he suddenly observed a very deep hole in the pavement
on the bridge. Since there were two other vehicles beside claimant’s vehicle at
that moment, he could not maneuver his vehicle around the hole. The vehicle’s
front driver’s side struck the hole that was two feet inside the white line.
The impact burst the front driver side tire, damaged the rim and bumper,
ruptured the oil pan, and caused other damages. Afterward, the vehicle was
towed from the scene to the residence of the father of claimant’s girlfriend.
The loss of the vehicle caused claimant to miss a week of employment. Claimant
sustained a total loss in the amount of $1,460.30 for the following: the
estimated damages to the vehicle of $1,178.30; towing charges of $35.00; and
estimated wage loss of $247.00. Claimant’s liability motor vehicle insurance
policy provided no insurance coverage for this incident. Eventually, the
vehicle was used as a trade-in on another vehicle.
The position of respondent was that the poor condition of the highway was
caused by the poor substructure which it had been working on to repair. The
condition of the surface of the bridge had caused holes to form in its
pavement. Respondent patrolled this particular area several times per day to
repair holes with cold mix asphalt as needed. Respondent asserted that due to
this condition, it gave the bridge a higher priority of care. Cold mix asphalt
was used to repair the holes because the location of the hot mix plant was
about seven miles from respondent. On August 14, 1999, and on August 15, 1999,
respondent had been to the location in question and repaired holes in the
pavement. Apparently, by the time of the incident, two days of rain had caused
the cold mix asphalt to come out of the hole. Since this incident occurred on a
Sunday, respondent’s employees were not patrolling the bridge. According to
respondent, after receiving notice of the incident herein from a member of the
West Virginia State Police, employees of respondent immediately went to the
scene and repaired the hole.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent
liable for road defects of this type, claimant must prove that respondent had
actual or constructive notice of the defect and a reasonable time to take
corrective action. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).
In the present claim, the evidence adduced at the November 4, 1999, hearing
establish that respondent was negligent in its maintenance of the Buffalo Creek
bridge of 1-79 in Braxton County. The Court is of the opinion that respondent
knew of the hazardous condition on the Buffalo Creek bridge, and it had a duty
to warn motorists of the defective condition of the pavement on the bridge.
Even with the knowledge of the Buffalo Creek bridge’s hazardous condition,
respondent failed to warn the traveling public. Respondent’s failure to provide
some form of warning mechanism to warn motorists about this hazard constitutes
negligence for which
W.Va.1 REPORTS
STATE COURT OF CLAIMS 129
claimant may recover his loss. Consequently, there is sufficient evidence of
negligence upon which to base an award.
In view of the foregoing, the Court is of the opinion to and does make an award
in this claim in the amount of $1,460.30.
Award of$ 1,460.30.
OPINION ISSUED JANUARY28, 2000
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
VS.
DEPARTMENT OF TAX AND REVENUE
(CC-00-033)
Claimant appeared pro Se.
Joy M. Cavallo, 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 $254,000.00 for extra work that it performed under a contract
with the respondent State agency for computer conversions of certain systems
necessary to meet Y2K compliance. There were projects for these computer
conversions being undertaken by all State agencies at this particular time.
Claimant originally bid on the project for a little less than $1,300,000.00 in
March 1998 at which time claimant agreed to reduce the contract bid price to
$795,000.00 based upon the representations of the respondent that its own
employees would be able to accomplish a portion of the conversion work
necessary to brmg the computer systems into Y2K compliance. A subsequent change
order brought the total amount of the contract to $837,000.00. The claimant
agreed to this arrangement and work on the computer system was begun in April
1998.
In August 1999, it became apparent to both parties that the Y2K conversion
process would not be timely accomplished unless claimant provided the expertise
necessary to accomplish this feat. There was a “fixed in stone” deadline of
January 1, 2000, facing the respondent, and it was determined that unless the
claimant provided additional resources to respondent, the conversion would not
be completed by the critical deadline. The parties agreed that claimant would
provide whatever services were needed to meet the deadline and the charges for
the work would be submitted by claimant after the work was completed.
130 REPORTS
STATE COURT OF CLAIMS [W.Va.
As explained by respondent’s computer consultant, Mark L. Starcher, President
of Scanmark, Ltd., the remediation work was to be a shared project by claimant
and respondent’s employees. There were three systems to be addressed,
specifically being the personal income tax system, accounts receivable system,
and the business tax system. The personal income tax system was completed and
put into production in December 1998. As work progressed on the Y2K compliance
issues, it became apparent that additional work was necessary which was beyond
the scope of the Y2K remediation effort. This work involved the library of the
software itself. There were obsolete programs in the library and it became
apparent to all concerned that it was necessary to redo completely the software
library to bring it up to date. Claimant provided the expertise and employees
to address the problems with the software library so that respondent now has a
production library that works. All of this work was beyond the scope of the
contract entered into by the parties.
As a result of the efforts of the claimant, the Y2K computer project was
completed in a timely manner on November 15, 1999, the systems were tested,
placed into production, and found to be Y2K compliant.
After the systems were all in order, the parties began discussions as to the
amount due the claimant for the additional work that it had performed during
this critical period of time. An analysis of the amount claimed to be due by
the claimant was undertaken and the parties eventually agreed that the amount
of $254,000.00 was fair and reasonable. Respondent’s consultant, Mr.
Starcher, took an active role in the evaluation of claimant’s request for
additional compensation and he was of the opinion that the amount agreed upon
by the parties was reasonable. However, claimant could not be paid by
respondent under the tenns of the contract and claimant was advised to file
this claim.
A hearing was conducted on January 19, 2000, at which time the facts and
information as stated herein above were provided to the Court. At that hearing,
the Commissioner for the Tax Division, Joseph M. Palmer, informed the Court
that he had appeared before an interim committee of the Legislature in October
1999 to provide an update on the efforts underway to address Y2K computer
issues. He informed the committee that extra work was being undertaken by
claimant and a claim would be filed for consideration by this Court.
The Court, having considered all of the testimony and amount of the claim, has
determined that the services performed by claimant were necessary, that
respondent received the benefit of expert computer services provided by the
claimant, and that the amount agreed upon by the parties is fair and
reasonable. Further, the Court is of the opinion that the State of West
Virginia would be unjustly enriched if claimant is not compensated for the
valuable expertise that it provided respondent. The respondent, as well as our
State, was in a crisis at that time because the year 2000 was fast approaching.
Respondent would not have been able to process business tax receipts payable to
the State, it would not have been able to
W.Va.J REPORTS
STATE COURT OF CLAIMS 131
track its accounts receivable or determine payments made to the State or
amounts due for delinquencies. This would have been a c atastrophic event for
the fiscal affairs of our State. Respondent had a duty to meet the 2000 year
deadline and it could not have done so without the efforts put forth by
claimant. Therefore, the Court is of the opinion that an award should be made
to the claimant in the amount of $254,000.00 for consideration by the
Legislature during its session in 2000.
Accordingly, the Court makes an award to claimant in the amount of
$254,000.00.
Award of $254,000.00.
OPINION iSSUED JANUARY28, 2000
DANKA
vs.
ADJUTANT GENERAL
(CC-00-032)
Claimant appeared pro Se.
Joy M. Cavallo, 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 $303.87 for maintenance services provided to respondent. The
documentation for these services was not processed for payment within the
appropriate fiscal year; therefore, claimant has not been paid. In its Answer,
respondent admits the validity of the claim as well as the amount, and states
that there were sufficient funds expired in the appropriate fiscal year from
which the invoice could have been paid.
Accordingly, the Court makes an award to claimant in the amount of
$303.87.
Award of $303.87.
OPINION ISSUED JANUARY28, 2000
RANDALL W. HALL
VS.
132
REPORTS STATE COURT OF CLAIMS [W.Va.
DI VISION OF HIGHWAYS
(CC-97-4 10)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage that was sustained as his wife
was driving his vehicle and it went into a ditch while she was traveling on
Route 1, at the bottom of Bolt Mountain. Route 1 is a road maintained by
respondent in Wyoming County. The Court is of the opinion to make a reduced
award for reasons more fully set forth below.
The incident giving rise to this claim occurred on October 3, 1997, at
approximately 7:00 a.m. On the morning in question, claimant’s wife, Patricia
Ann Hall, was proceeding on Route I to her place of employment, the Bolt Post
Office, in claimant’s 1995 Dodge Stratus. Claimant’s wife was driving the vehicle
along the local service route at a speed of thirty-five miles per hour with the
aid of the vehicle’s headlights, and there was little traffic on the road. When
she caine upon a three foot wide construction ditch in the road surface, she
was unable to avoid driving the vehicle into the depression in the roadway. She
applied the vehicle’s brakes, but the vehicle struck the deep ditch forcefully.
She stopped the vehicle and slowly drove the vehicle out of the ditch. Claimant
was able to operate the vehicle after the incident, however the vehicle
sustained damage in the amount of $487.23. Claimant’s motor vehicle insurance
policy has a deductible feature of $250,
to which claimant’s recovery is
limited. See Sommerville, et a!. vs. Div. of Highways, 18
Ct. Cl. 110 (1991).
During June 1997, claimant was aware that there had been flooding in the area
and that as a result, the road surface had been excavated from side to side by
respondent to install drains.
In the days prior to the incident, claimant’s wife had been on the road, but
she had not noticed any irregularities in the pavement. Later, claimant’s wife
contacted respondent regarding the incident.
The position of respondent was that it did not have notice that the ditch on
Route 1 in Wyoming County posed a hazard to the traveling public. According to
respondent, flooding had occurred through out the county on several occasions
during the year. On Route 1 at the scene of the incident herein, water flowed
out of a ravine and caused the road surface to “hoove up” when rock and debris
filled the drain pipe under the road. There were several areas on Route 1 where
respondent had pipes wash out. As a result, respondent had been in the process
of installing new pipes across Route 1 as well as cleaning the sides of the
road to alleviate any problems. These areas of Route 1 were repaired and gravel
was used in the areas
W.Va.] REPORTS
STATE COURT OF CLAIMS 133
which were dug out. Respondent then went on to repair other roads. Respondent
acknowledged that the gravel that was placed on the road often settles and
possibly could form depressions that would be consistent with a ditch. The
material on the road must be compacted in order to remedy the settling problem.
Hot mix asphalt was placed on the road at a later date. In addition, “Rough
Road” road signs were en route to the location in question at the time of
claimant’s wife incident.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent liable
for road defects of this type, claimant must prove that respondent had actual
or constructive notice of the defect and a reasonable time to take corrective
action. Chapman vs. Dept. of Highways,
16 Ct. Cl. 103 (1986).
In the present claim, the evidence adduced at the October 28, 1999, hearing
established that respondent had notice of the condition of Route 1 in Wyoming
County. Respondent knew or should have known that this portion of Route 1 would
settle causing a ditch to form in the road. The Court is of the opinion that
respondent did not take the proper precautionary measures in its maintenance of
Route 1 at the scene of claimant’s wife’s accident. However, the Court is of
the opinion that claimants’s wife is not without fault in this incident. She
was familiar with the road, and she knew that respondent had installed pipes
across the road. She should have exercised more care in operating claimant’s
vehicle under the road conditions then and there existing.
Normally, the contributory negligence of a driver in operating a vehicle is not
imputed to the owner of the vehicle. Bartz
vs. Wheat, 169 W.Va. 86; 285 S.E.2d
894 (1982). However, the Court is of the opinion that the negligence of
claimant’s wife may be imputed to claimant under the family purpose doctrine.
The family purpose doctrine is a legal rule by which the owner of an automobile
is held vicariously liable when a member of the immediate household negligently
drives the family vehicle, on the assumption that the driver is implementing a
family purpose. See B lack’s Law
Dictionary, 420 (6th e d. 1991). W est Virginia h as a dopted and followed
this doctrine. Bell vs. West, 168 W.Va. 391; 284 S.E.2d 885 (1981). Since claimant’s
wife was operating a family vehicle to her place of employment, the Court fmds
that the family purpose doctrine is applicable to this situation. Thus, the
comparative negligence of claimant’s wife will be imputed to claimant.
In a comparative negligence jurisdiction, such as West Virginia, the negligence
of a claimant may reduce or bar recovery of a claim. In accordance with the
fmdings of fact and conclusions of law stated herein above, the Court has
determined that claimant’s wife was 20% negligent for the incident that
occurred. Since negligence of claimant’s wife was not greater than or equal to
the negligence of respondent, claimant may recover 80% of his loss.
134 REPORTS STATE
COURT OF CLAIMS [W.Va.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of 80% of claimant’s insurance deductible feature for
a total award of $200.00.
Award of $200.00.
OPINION ISSUED JANUARY28, 2000
NANCY GODSEY-MAYLE
VS.
DIVISION OF HIGHWAYS
(CC-99-28 1)
Claimant appeared pro Se.
Xueyan Thang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her vehicle
went off the edge of the road on County Route 24, Chestnut Ridge Road, in
Barbour County. County Route 24 is a road maintained by respondent in Barbour
County. The Court is of the opinion to make an award in this claim for the
reasons more fully stated below.
The incident giving rise to this claim occurred on July 3, 1999, at
approximately 5:00 p.m. On the clear evening in question, claimant was
returning from a trip to a store in her 1990 Lincoln Town Car. Claimant’s
vehicle was proceeding from Philippi to Chestnut Ridge Road near the Badger
mines on County Route 24. County Route 24, which is about two miles from the
Philippi city limits, is a sixteen foot secondary road with a double-yellow
centerline. There are no edge lines. Each lane of County Route 24 is about
seven to eight feet wide. There is no berm on County Route 24 at the scene of
claimant’s accident. There is a guardrail adjacent to the road with a space
from the edge of the road to the guardrail. According to claimant, County Route
24 is not wide enough for two vehicle traffic.
As claimant drove her usual route to her residence, she came to what could be
termed an “S”shaped up hill curve on the road. Since claimant had experienced
problems in the past, she maneuvered her vehicle at a speed of approximately
ten miles per hour to avoid any further problems. Claimant was then confronted
by an oncoming vehicle. In order to pass the oncoming vehicle, she drove to the
right side of her lane whereupon her vehicle went off the paved portion of the road.
This situation caused claimant’s vehicle to roll into the guardrail.
Afterwards, claimant exited the vehicle, went to her brother-in-law’s and
telephoned her husband for
W.Va.J REPORTS
STATE COURT OF CLAIMS 135
assistance. The following day, claimant went back and photographed the area
in question. Claimant’s vehicle sustained damage in the amount of $3,091.24.
Since claimant’s vehicle was insured only under a liability policy, there was
no insurance coverage for this incident.
The position of respondent was that it did not have notice regarding the
defective condition on the edge of the road on County Route 24. R espondent’s
search of its daily records did not reveal any prior complaints. County Route
24 is patrolled on a weekly basis for irregularities in the pavement. However,
respondent’s County Highway Administrator for Barbour County, Carl W.
Dickenson, Jr., stated that the road appeared to be unstable and had to be
restabilized.
In this claim, the Court is of the opinion that the edge of the road on County
Route 24, Chestnut Ridge Road, at the location of claimant’s incident, was not
maintained properly by respondent and created a hazard to the traveling public.
The photographic evidence presented by claimant established that the edge of
the road had broken away where claimant’s incident occurred. As claimant
approached the oncoming vehicle on the narrow road, she carefully attempted to
maneuver her vehicle toward the edge of the road. Due to deterioration, there
was no road surface to support her vehicle. This condition on County Route 24
constituted negligence on the part of respondent for which the claimant may
recover for the damages to her vehicle.
However, the Court is of the further opinion that the estimates submitted by
claimant as proof of the damages to her vehicle are suspect and appear to be
inflated. The Court has reviewed the invoices and has determined that a 30
percent reduction is fair and reasonable; therefore, the Court reduces the
award to the amount of
$2,163.87.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $2,163.87.
Award of $2,163.87.
OPINION ISSUED JANUARY 28, 2000
ANNA ELIZABETH MOUNT
Vs.
DIVISION OF HIGHWAYS
(CC-96-578)
Herbert H. Henderson, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
136 REPORTS
STATE COURT OF CLAIMS [W.Va.
WEBB, JUDGE:
Claimant, Anna Elizabeth Mount, brought this action for damage sustained to a
barn on her real property from a landslide which she alleges was the result of
negligent maintenance of a ditch on the gravel road portion of County Route 7,
in Lesage. County Route 7 is a road maintained by respondent in Cabell County.
The Court is of the opinion to make a partial award in this claim for the
reasons more fully stated below.
Claimant has resided on a portion of the property located adjacent to County
Route 7 in Lesage, Cabell County since 1945. In 1972, claimant and her
husband, now deceased, purchased property across the road from their residence.
During the summer and fall of 1983, claimant’s sons, Clyde Edward and Clarence
Ray Mount, erected a barn on this particular tract, adjacent to a steep slope.
County Route 7, a dirt and gravel road at this location, is at the top of this
slope and there is a hillside above the road. A driveway from the road to the
barn was afready in place at the time the barn was built, because there had
been a residence there previously. The front of the barn faces west toward the
driveway; one side of the barn faces north toward the slope on County Route 7;
the other side of the barn faces south toward Nine Mile Creek which is below
the barn; and the back of the barn faces the east toward vacant land. According
to claimant and her sons, the only excavation done to the original property
while constructing the barn consisted of digging the footer which was filled
with steel reinforced concrete. The foundation of the barn was built with
concrete blocks that were six to ten inches thick and sixteen to eighteen
inches wide. Reinforced steel was also placed in the concrete floor. The
wooden, two story barn, with a tin roof, is twenty feet long, thirty feet wide
and sixteen feet high. At the front of the barn, there is a large sliding door
which is wide enough for a regular size pick up truck to pass through. The
inside of the barn is wired for electricity, but does not have indoor plumbing.
The loft is used for storing hay, and the bottom is used for processing tobacco
and storing equipment. Around the outside of the barn, there are gutters with a
down spout. Prior to the problems with the slip, claimant’s sons were able to
mow the land between the north side of the barn and the slope to County Route
7.
Claimant asserts that she had not experienced any problems at the location of
her barn until 1994. In 1994, employees of respondent, using a grader, cut a
ditch along County Route 7. According to claimant as well as her neighbors,
Luther H. Ramey, Jr., and Lowell Elmer Gibson, this area of the ditch filled
with water which was allowed to remain standing in the upper side of the road.
There was no culvert along the county road to provide proper drainage. In
November 1994, a slip began onCountyRoute 7. The slip was eighteentotwenty feet
deep andtwelve feet lengthwise, almost encompassing the entire road. Eventually
the slip affected the foundation of claimant’s barn. From January 11, 1995 to
June 5, 1995, claimant contacted respondent regarding the problem at least
sixteen times. Respondent came
W.Va.j REPORTS
STATE COURT OF CLAIMS 137
to the site several times to place tons of slag in the sunken part of the road
at the slip.’ These corrective measures did not prove to be a permanent
solution to the problem, and in September to October1995 respondent installed
piling at the site which corrected the slip in the road.2 The claimant has had
no further problems with this slip. Her barn appears to be in a stable position
as of the dates of the hearing in this claim, September 29 and 30, 1999, but
damages to the barn occurred during 1994 through 1995.
The slip that occurred beginning in 1994 and continuing intol995 on County
Route 7 caused claimant’s barn to shift about eighteen inches from its
foundation and to move eight to ten inches off plumb. The area most affected
was the northeast corner of the barn. This foundation was damaged extensively.
The concrete floor of the barn remained intact, but the foundation block on
which the barn was constructed overturned. This situation has made the barn
unsafe for its intended purposes. According to claimant’s expert in the cost
and repair of damages to the barn, Bill Tassen, the barn will have to be moved
forty feet to the west to avoid the slip area. A new foundation of fill dirt
and concrete will be required. In addition, a entrance road will have to be
built onto the property. The project is expected to take four weeks to complete
and the cost is estimated in the amount of $25,500.00. Claimant does not
have an insurance policy that provides coverage for this incident.
Two of claimant’s neighbors, Mr. Ramey and Mr. Gibson described the measures
taken by respondent in an attempt to remedy the problem of the water on the
road. Mr. Ramey testified that respondent installed a twelve-inch plastic drain
pipe at an angle in a curve in the road which was above the lower part of the
road. Mr. Gibson testified that an eighteen inch culvert was installed across
the road from claimant’s barn, but it was above the water and water stood in
the ditch because there was no way for it to flow out of the culvert.
Additionally, Mr. Gibson testified that he had observed three to four
landslides in the area in question.
According to claimant’s expert in civil engineering and causation of
landslides, Craig Alan Lyle, the primary cause of the landslide was the
improper drainage along the ditch line which resulted in ponding of water which
caused the soil beneath the road to lose shearing strength. It was his opinion
that the digging of
‘According to Design Technician, James F. Roberts, “slag” is a cheap, waste
by-product from steel mills that is used as an aggregate to repair roads
maintained by respondent.
2 According
to Administrative Assistant for the Operations Division,
Chirstopher Kyle Sowards, “pilings” are steel posts, beams or wooden sticks placed
into pre-drilled holes in the ground which are embedded into rock.
138 REPORTS
STATE COURT OF CLAIMS [W.Va.
the footer for the barn foundation eleven years prior to the slip did not bring
about the eventual slip. After an inspection of claimant’s property on
September 26, 1998, Mr. Lyle observed that the drain installed by respondent
was ineffective and clogged with leaves. According to Mr. Lyle, water flow
could not be maintained through the culverts because it only had a slight
slope. Therefore, the water does not drain from the area but rather it
percolates into the soil. Mr. Lyle explained that when water infiltrated and
saturated the ground, which consists of clay soil in large part, the ground
experienced a reduction in shearing strength. The saturated soil was reduced to
the point where it would no longer stand at its previous slope. Thus, the
landslide made a slow progression toward claimant’s barn to achieve stability.
Mr. Lyle based his opinion on weather information obtained from the Huntington
Sewage Treatment Plant; the Huntington Airport; and the Hogset-Gallipolis Dam
that revealed that the rainfall measurements for November 28, 1994, were below
normal while the rainfall measurements for May and June inI 995 were above
normal. Before the ditch line construction in November 1994, Mr. Lyle is of the
opinion that the barn actually placed weight on the downhill side of the
property and created a stable position for the barn. However, Mr. Lyle
acknowledged that other factors such as water, steepness of the slope, soil
characteristics, and a scarp area that exposed a sandstone outcrop also could
have affected this landslide. In addition, Mr. Lyle acknowledged that this
landslide was typical of most landslides in West Virginia.
The position of respondent was that it was not negligent in the maintenance of
the ditch line on County Route 7. County Route 7 is a fourth priority single
lane road that transverses in a west-east direction. The area in question is
one-tenth of a mile from the hard top portion of County Route 7. Since County
Route 7 is a fourth priority road, it is graded by respondent on an annual basis
and ditched every five years. Before the slip, the portion of road in question
was high and water flowed toward claimant’s property. Respondent’s employees
went to the site and installed a drain pipe above the slip. According to the
Assistant Supervisor for Cabell County, Clarence F. Scarberry, on March 10,
1995, the pipe was installed in order to reroute the water around the barn into
the creek from above where the barn sets. Sometime after March 6, 1995, then
Maintenance Assistant in the Maintenance Division, James F. Roberts, made a
recommendation to the District Two Office3 for piling to be installed on County
Route 7.
Respondent’s expert in g eotechnical engineering, Dr. Ge orge Alan Hall, first
visited the site on June 28, 1999. He described the area of the barn as being
in a full slip plane. The landslide area was identified as an area of
“rotational failure,”
Decisions regarding the installations of pilings are made based on severity of
the problem and available funding for the project.
W.Va.J REPORTS
STATE COURT OF CLAIMS 139
which he also referred to as a “slump.” The slip part in question started to
move first and the other part followed it immediately thereafter. These tvo
occurrences are related. Dr. Hall asserted that the slip in question is part of
an ancient landslide which developed hundreds of years ago. On June 28, 1999,
Dr. Hall observed a mound of material on the hillside below the road, including
a large boulder on the western side of the barn. According to Dr. Hall, the
significance of the mound area and the meander in the stream is that at one
time the stream flowed relatively straight across the valley; however, a large
landslide developed in the hillside which pushed out into the valley and forced
the stream to the other side. This situation led to a more stable slope for
many years. From his personal observation, Dr. Hall was of the opinion that
there was excavation in the area directly behind the barn which brought about
the reactivation of the slide. This excavation cut away a stable portion of the
once stable slope.
Dr. Hall further explained that the time discrepancy between the excavation for
the barn in 1983 and the landslide in 1994-1995 is the result of weather
conditions during the years 1980 to 1988 when the area experienced an extreme
dry period that caused the clay soil to shrink. Then in 1989, the area
experienced one of the wettest years on record. Thus, the excavation for the
barn being at the bottom of the slip area precipitated the beginning of the
landslide. In addition, Dr. Hall asserted that the pipe which had been
installed due to the drop in the road prevented the water flowing in that area
from flowing into the ditch, thus, it was unable to flow into the creek.
The Court has held that respondent has a duty to provide adequate drainage of
surface water, and drainage devices must be maintained in a reasonable state of
repair. Haught vs. Dept. of Highways, 13 Ct. Cl. 237 (1980). In claims
of this nature, the Court will examine whether respondent negligently failed to
protect a claimant’s property from foreseeable damage. Rogers vs. Div. of Highways, 21
Ct.
Cl. 97 (1996).
In the instant claim, claimant has established that respondent maintained the
ditch on County Route 7, in Cabell County, in a negligent manner. The Court is
of the opinion that respondent set in motion the slip that occurred by digging
a ditch on the north side of Route 7 and then allowing the ponding of water in
the ditch. This brought about the beginning of the slip into the barn and
claimant’s first complaints to respondent. Respondent failed to address the
situation of the water ponding in the ditch as soon as it received notice of
the problem. Rather, no action was taken until the road itself began to sink
and traffic was not able to traverse the road.
engineering,” also known as “soils and foundations
engineering” is the use of earth materials either for foundation, for
structures, or to construct a structure itself.
140 REPORTS STATE
COURT OF CLAIMS [W.Va.
Respondent attempted to maintain its road in the manner necessary, i.e., by
placing slag in the slip on the road. As a result of the weight on the roadway
from the slag, the slope adjacent to claimant’s barn moved toward and against
the northeast corner of the barn until it actually caused damage to the
foundation blocks and then the barn began to move from its foundation. The
amount of slag placed on the roadway; the later attempt to drain the area with
the plastic pipe; and, the grading done in the area were not sufficient to stop
the slide which had been put in motion as a result of the water in the ditch
and on the road. Respondent did not take permanent, remedial action to protect
the claimant’s property from the effects of this slip until the fall of 1995 when the
piling was installed to stop the slip completely. There have been no further
problems from the slip since the piling was placed by respondent.
It appears to the Court that claimant has the option to move her barn or to
effect t he n ecessary repairs and leave it w here it is n ow I ocated. T he e
vidence certainly supports the contention that the slope is no longer moving
because County Route 7 is stable. The Court has considered the damage estimates
in evidence. The Court is not satisfied that moving the barn to a new location
is necessary; therefore, the Court has reduced the damages to reflect the
approximate cost to repair the barn at its present location. The amount of
$7,500.00 appears to the Court to be fair and reasonable for claimant to be
able to replace the foundation blocks and place the barn back on its
foundation.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to make an award to the claimant in the
amount of
$7,500.00.
Award of $7,500.00.
OPINION ISSUED JANUARY 28, 2000
ANNA ELIZABETH MOUNT
VS.
DIVISION OF HIGHWAYS
(CC-96-578)
Herbert H. Henderson, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
WEBB, JUDGE:
Claimant, Anna Elizabeth Mount, brought this action for damage sustained to a
barn on her real property from a landslide which she alleges was the result of
negligent maintenance of a ditch on the gravel road portion of County Route 7,
in
W.Va.} REPORTS
STATE COURT OF CLAIMS 141
Lesage. County Route 7 is a road maintained by respondent in Cabell County. The
Court is of the opinion to make a partial award in this claim for the reasons
more fully stated below.
Claimant has resided on a portion of the property located adjacent to County
Route 7 in Lesage, Cabell County since 1945. In 1972, claimant and her
husband, now deceased, purchased property across the road from their residence.
During the summer and fall of 1983, claimant’s sons, Clyde Edward and Clarence
Ray Mount, erected a barn on this particular tract, adjacent to a steep slope.
County Route 7, a dirt and gravel road at this location, is at the top of this
slope and there is a hillside above the road. A driveway from the road to the
barn was already in place at the time the barn was built, because there had
been a residence there previously. The front of the barn faces west toward the
driveway; one side of the barn faces north toward the slope on County Route 7;
the other side of the barn faces south toward Nine Mile Creek which is below the
barn; and the back of the barn faces the east toward vacant land. According to
claimant and her sons, the only excavation done to the original property while
constructing the barn consisted of digging the footer which was filled with
steel reinforced concrete. The foundation of the barn was built with concrete
blocks that were six to ten inches thick and sixteen to eighteen inches wide.
Reinforced steel was also placed in the concrete floor. The wooden, two story
barn, with a tin roof, is twenty feet long, thirty feet wide and sixteen feet
high. At the front of the barn, there is a large sliding door which is wide
enough for a regular size pick up truck to pass through. The inside of the barn
is wired for electricity, but does not have indoor plumbing. The loft is used
for storing hay, and the bottom is used for processing tobacco and storing
equipment. Around the outside of the barn, there are gutters with a down spout.
Prior to the problems with the slip, claimant’s sons were able to mow the land
between the north side of the barn and the slope to County Route 7.
Claimant asserts that she had not experienced any problems at the location of
her barn until 1994. In 1994, employees of respondent, using a grader, cut a
ditch along County Route 7. According to claimant as well as her neighbors,
Luther H. Ramey, Jr., and Lowell Elmer Gibson, this area of the ditch filled
with water which was allowed to remain standing in the upper side of the road.
There was no culvert along the county road to provide proper drainage. In
November 1994, a slip began on C ounty Route 7. T he s lip was eighteen to
twenty feet deep and twelve feet lengthwise, almost encompassing the entire
road. Eventually the slip affected the foundation of claimant’s barn. From
January 11, 1995 to June 5, 1995, claimant contacted respondent
regarding the problem at least sixteen times. Respondent came to the site
several times to place tons of slag in the sunken part of the road at the
142 REPORTS STATE
COURT OF CLAIMS [W.Va.
slip) These corrective measures did not prove to be a permanent solution to the
problem, and in September to October1995 respondent installed piling at the
site which corrected the slip in the road.2 The claimant has had no further
problems with this slip. Her barn appears to be in a stable position as of the
dates of the hearing in this claim, September 29 and 30, 1999, but damages to the barn occurred during 1994
through 1995.
The slip that occurred beginning in 1994 and continuing intol995 on County
Route 7 caused claimant’s barn to shift about eighteen inches from its
foundation and to move eight to ten inches off plumb. The area most affected
was the northeast corner of the barn. This foundation was damaged extensively.
The concrete floor of the barn remained intact, but the foundation block on
which the barn was constructed overturned. This situation has made the barn
unsafe for its intended purposes. According to claimant’s expert in the cost
and repair of damages to the barn, Bill Tassen, the barn will have to be moved
forty feet to the west to avoid the slip area. A new foundation of fill dirt
and concrete will be required. In addition, a entrance road will have to be
built onto the property. The project is expected to take four weeks to complete
and the cost is estimated in the amount of $25,500.00. Claimant does not have
an insurance policy that provides coverage for this incident.
Two of claimant’s neighbors, Mr. Ramey and Mr. Gibson described the measures
taken by respondent in an attempt to remedy the problem of the water on the
road. Mr. Ramey testified that respondent installed a twelve-inch plastic drain
pipe at an angle in a curve in the road which was above the lower part of the
road. Mr. Gibson testified that an eighteen inch culvert was installed across
the road from claimant’s barn, but it was above the water and water stood in
the ditch because there was no way for it to flow out of the culvert.
Additionally, Mr. Gibson testified that he had observed three to four
landslides in the area in question.
According to claimant’s expert in civil engineering and causation of
landslides, Craig Alan Lyle, the primary cause of the landslide was the
improper drainage along the ditch line which resulted in ponding of water which
caused the soil beneath the road to lose shearing strength. It was his opinion
that the digging of the footer for the barn foundation eleven years prior to
the slip did not bring about
‘According to Design Technician, James F. Roberts, “slag” is a cheap, waste
by-product from steel mills that is used as an aggregate to repair roads
maintained by respondent.
2 According
to Administrative Assistant for the Operations Division,
Chirstopher Kyle Sowards, “pilings” are steel posts, beams or wooden sticks
placed into pre-drilled holes in the ground which are embedded into rock.
W.Va.] REPORTS
STATE CO1JRT OF CLAIMS 143
the eventual slip. After an inspection of claimant’s property on September 26,
1998, Mr. Lyle observed that the drain installed by respondent was ineffective
and clogged with leaves. According to Mr. Lyle, water flow could not be
maintained through the culverts because it only had a slight slope. Therefore,
the water does not drain from the area but rather it percolates into the soil.
Mr. Lyle explained that when water infiltrated and saturated the ground, which
consists of clay soil in large part, the ground experienced a reduction in
shearing strength. The saturated soil was reduced to the point where it would
no longer stand at its previous slope. Thus, the landslide made a slow progression
toward claimant’s barn to achieve stability. Mr. Lyle based his opinion on
weather information obtained from the Huntington Sewage Treatment Plant; the
Huntington Airport; and the Hogset-Gallipolis Dam that revealed that the
rainfall measurements for November 28, 1994, were below normal while the
rainfall measurements for May and June ml 995 were above normal. Before the ditch line construction
in November 1994, Mr. Lyle is of the opinion that the barn actually placed
weight on the downhill side of the property and created a stable position for
the barn. However, Mr. Lyle acknowledged that other factors such as water,
steepness of the slope, soil characteristics, and a scarp area that exposed a
sandstone outcrop also could have affected this landslide. In addition, Mr.
Lyle acknowledged that this landslide was typical of most landslides in West
Virginia.
The position of respondent was that it was not negligent in the maintenance of
the ditch line on County Route 7. County Route 7 is a fourth priority single
lane road that transverses in a west-east direction. The area in question is
one-tenth of a mile from the hard top portion of County Route 7. Since County
Route 7 is a fourth priority road, it is graded by respondent on an annual
basis and ditched every five years. Before the slip, the portion of road in
question was high and water flowed toward claimant’s property. Respondent’s
employees went to the site and installed a drain pipe above the slip. According
to the Assistant Supervisor for Cabell County, Clarence F. Scarberry, on March
10, 1995, the pipe was installed in order to reroute the water around the barn
into the creek from above where the barn sets. Sometime after March 6, 1995,
then Maintenance Assistant in the Maintenance Division, James F. Roberts, made
a recommendation to the District Two Office3 for piling to be installed on
County Route 7.
Respondent’s expert in g eotechnical engineering, D r. Ge orge A lan H all,
first visited the site on June 28, 1999. He described the area of the barn as
being in a full slip plane. The landslide area was identified as an area of
“rotational failure,”
Decisions regarding the installations of pilings are made based on severity of
the problem and available funding for the project.
144 REPORTS
STATE COURT OF CLAIMS [W.Va.
which he also referred to as a “slump.”1 The slip part in question started to
move first and the other part followed it immediately thereafter. These two
occurrences are related. Dr. Hall asserted that the slip in question is part of
an ancient landslide which developed hundreds of years ago. On June 28, 1999,
Dr. Hall observed a mound of material on the hillside below the road, including
a large boulder on the western side of the barn. According to Dr. Hall, the significance
of the mound area and the meander in the stream is that at one time the stream
flowed relatively straight across the valley; however, a large landslide
developed in the hillside which pushed out into the valley and forced the
stream to the other side. This situation led to a more stable slope for many
years. From his personal observation, Dr. Hall was of the opinion that there
was excavation in the area directly behind the b am which brought about the
reactivation of the slide. This excavation cut away a stable portion of the
once stable slope.
Dr. Hall further explained that the time discrepancy between the excavation for
the barn in 1983 and the landslide in 1994-1995 is the result of weather
conditions during the years 1980 to 1988 when the area experienced an extreme
dry period that caused the clay soil to shrink. Then in 1989, the area
experienced one of the wettest years on record. Thus, the excavation for the
barn being at the bottom of the slip area precipitated the beginning of the
landslide. In addition, Dr. Hall asserted that the pipe which had been
installed due to the drop in the road prevented the water flowing in that area
from flowing into the ditch, thus, it was unable to flow into the creek.
The Court has held that respondent has a duty to provide adequate drainage of
surface water, and drainage devices must be maintained in a reasonable state of
repair. Haught vs. Dept. of Highways, 13 Ct. Cl. 237 (1980). In claims
of this nature, the Court will examine whether respondent negligently failed to
protect a claimant’s property from foreseeable damage. Rogers vs. Div. of
Highways, 21 Ct.
Cl. 97 (1996).
In the instant claim, claimant has established that respondent maintained the
ditch on County Route 7, in Cabell County, in a negligent manner. The Court is
of the opinion that respondent set in motion the slip that occurred by digging
a ditch on the north side of Route 7 and then allowing the ponding of water in
the ditch. This brought about the beginning of the slip into the barn and claimant’s
first complaints to respondent. Respondent failed to address the situation of
the water ponding in the ditch as soon as it received notice of the problem.
Rather, no action was taken until the road itself began to sink and traffic was
not able to traverse the road.
‘“Geotechnical engineering,” also known as “soils and foundations
engineering” is the use of earth materials either for foundation, for
structures, or to construct a structure itself.
W.Va.] REPORTS
STATE COURT OF CLAIMS 145
Respondent attempted to maintain its road in the manner necessary, i.e., by
placing slag in the slip on the road. As a result of the weight on the roadway
from the slag, the slope adjacent to claimant’s barn moved toward and against
the northeast corner of the barn until it actually caused damage to the
foundation blocks and then the barn began to move from its foundation. The
amount of slag placed on the roadway; the later attempt to drain the area with
the plastic pipe; and, the grading done in the area were not sufficient to stop
the slide which had been put in motion as a result of the water in the ditch
and on the road. Respondent did not take permanent, remedial action to protect
the claimant’s property from the effects of this slip until the fall of 1995 when
the piling was installed to stop the slip completely. There have been no
further problems from the slip since the piling was placed by respondent.
It appears to the Court that claimant has the option to move her barn or to
effect the n ecessary r epairs and leave it where it is now 1 ocated. T he
evidence certainly supports the contention that the slope is no longer moving
because County Route 7 is stable. The Court has considered the damage estimates
in evidence. The Court is not satisfied that moving the barn to a new location
is necessary; therefore, the Court has reduced the damages to reflect the
approximate cost to repair the barn at its present location. The amount of
$7,500.00 appears to the Court to be fair and reasonable for claimant to be able
to replace the foundation blocks and place the barn back on its foundation.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to make an award to the claimant in the
amount of
$7,500.00.
Award of $7,500.00.
OPINION ISSUED JANUARY28, 2000
JAMES H. OXLEY
VS.
DIVISION OF HIGHWAYS
(CC-99-330)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when his son was
operating his vehicle and struck a low railroad trestle while traveling on
Route 219/6, Pigeon Creek Road, in Oakvale. Route 219/6 is a road maintained by
146 REPORTS
STATE COURT OF CLAIMS [W.Va.
respondent in Mercer County. The Court is of the opinion to make an award in
this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on July 8, 1999, at
approximately 6:0 Op.m. 0 n the evening in question, c laimant’s son, Richard
G. Oxley, was traveling along Route 219/6 in his father’s 1969 two ton Ford
truck, installed with a cattle rack and water tank, to get water for his cattle
at Pigeon Creek. Claimant’s other son, Danny J. Oxley, followed claimant’s
truck in another vehicle to assist his brother. While claimant’s son frequently
travels this one lane road, the last time he was on the road was about one year
ago. On the way to Pigeon Creek on Route 219/6, there is a railroad trestle
that claimant’s vehicle must pass beneath. Unbeknownst to claimant and his
sons, Route 219/6 had been paved, raising the height of the road as well as
lowering the clearance of the railroad trestle to nine feet, two inches. There
was no clearance limit sign posted on the trestle.
As claimant’s son proceeded along Route 219/6 at a speed of about fifteen to
twenty miles per hour, he came upon the railroad trestle. In the past, the nine
foot, four inch truck had no difficultly passing under the trestle. However, on
this occasion, as claimant’s vehicle passed beneath the trestle, the top of the
cattle rack struck the bottom of the trestle. The impact destroyed the cattle
rack. Claimant’s sustained a loss in the amount of $269.74 for the raw
materials to rebuild the cattle rack. I n addition, claimant soughttorecoverthe
sum of$403.00 forhis son’s, Richard G. Oxley, labor in repairing the vehicle.
Since claimant’s vehicle was insured under a liability policy only there was no
insurance coverage for this incident.
In the present claim, the evidence adduced at the October 28, 1999, hearing
established that respondent was negligent in its maintenance of Route 219/6 at
the railroad trestle. When respondent paved the road and raised the height of
the road at the site of the trestle, it had a duty and obligation to warn
motorists of the lower clearance for the trestle. The failure of respondent to
warn motorists of the lower clearance constituted negligence for which claimant
may recover his loss of $269.74. As for the cost of labor performed by
claimant’s son, the Court presumes that his labor was provided gratuitously.
See Gibson vs. McGraw, 175 W.Va. 256; 3 32 S.E.2d 269 (1985).
In view of the foregoing, the Court is of the opinion to and does make an award
in the amount of $269.74.
Award of $269.74.
OPINiON ISSUED JANUARY28, 2000
MICHAEL EDWARD QUEEN
VS.
W.Va.] REPORTS
STATE COURT OF CLAIMS 147
DIVISION OF HIGHWAYS
(CC-99-279)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURTAM:
Claimant brought this action for vehicle damage when a tree limb that was
hanging over the road surface fell onto his vehicle as he traveled along W. Va. Route
103, in Horsepen, McDowell County. W. Va. Route 103 is a road maintained by
respondent in McDowell County. The Court is of the opinion to make an award in
this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on July 2, 1998, at
approximately 1:00 to 1:30 p.m. On the sunny day in question, claimant and a
friend were traveling on W. Va. Route 103 in Horsepen to visit claimant’s
“homeplace.” W. Va. Route 103 is a first priority feeder road with a road
surface of nineteen to twenty-one feet. On several occasions, claimant has been
concerned about a large tree limb with small branches that had been hanging
over the road surface of W.Va. Route 103 for about three years and he had
personally contacted respondent’s Havaco office regarding the tree limb. On
another occasion claimant had tried pull the branch down, but was unsuccessful.
However, while traveling along the road on the day in question, the tree limb
fell onto claimant’s 1995 Ford Mustang, impacting the windshield where the West
Virginia State Motor Vehicle Inspection Sticker is normally located.1 Following
the 4tI of July holiday, claimant informed respondent of the
incident. The damage sustained to the vehicle was estimated in the amount of
$213.66. Claimant’s motor vehicle insurance policy has a deductible feature of
$250.00 which is the limit of any recovery herein.
The position of respondent was that it did not have notice of the tree limb
hanging over the road surface of W.Va. Route 103 in Horsepen. According to
respondent, a review of its records indicated no complaints regarding this
area. In addition, respondent was unable to articulate why other trees hanging
over the road surface of W.Va. Route 103 have not been removed.
This Court has previously held that when the evidence indicates that respondent
has notice of a hazard, such as a tree limb hanging over a road surface,
1 A view of the vehicle at the October 28, 1999, hearing established that
the
impact of the tree limb caused what could be termed as a single line crack in
the vehicle’s windshield about four inches above the bottom of the windshield
and proceeding in a transverse manner from the right driver’s side almost to
the
passenger side.
148 REPORTS
STATE COURT OF CLAIMS [W.Va.
and a reasonable opportunity to remove it, respondent may be held liable. Jones
v. Division of Highways, 21 Ct. Cl. 445 (1995).
The evidence adduced at the October 28, 1 999, hearing established that
respondent knew or should have known about the tree limb hanging over the road
surface of W.Va. Route 103. Claimant had informed respondent of this hazard on
two prior occasions. Moreover, W.Va. Route 103 is a first priority road and a
reasonable inspection of the road would have made this road hazard known to
respondent. The Court is of the opinion that the actions of respondent
constituted negligence for which claimant may recover the estimated sustained
loss. Consequently, there is sufficient evidence of negligence upon which to
base an award.
In view of the foregoing, the Court is of the opinion to and does make an award
in this claim in the amount of $213.66.
Award of $213.66.
OPINION ISSUED JANUARY 28, 2000
FRED AND NETTlE RATCLIFF & LAWRENCE RATCLIFF,
THE GUARDIAN AND NEXT FRIEND
OF BENJAMIN NICHOLS RATCLIFF, AN INFANT
VS.
DIVISION OF HIGHWAYS
(CC-96-472)
Donald R. Jarrell, Attorney at Law, for claimants.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for respondent.
BAKER, JUDGE:
Claimants Fred and Nettie Ratcliff brought a claim for property damage and
Lawrence Ratcliff brought a claim for personal injury to his son, Benjamin
Ratcliff, both of which claims occurred as a result of hillside slippage on
County Route 29/9 (also known as Webb Road) in Crum, Wayne County. County Route
29/9 is a road owned and maintained by respondent in Wayne County. The Court is
of the opinion to deny the property damage claim and to award the personal
injury claim for the reasons more fully stated below.
The incident giving rise to the property damage claim occurred on September 7
through 12, 1994. County Route 29/9 is an off-shoot road of the Tolsia Highway
in Wayne County. The road is a local service route of secondary priority with a
single twelve foot lane. In 1978, claimants Fred and Nettie Ratcliff moved to
W.Va.j REPORTS
STATE COURT OF CLAIMS 149
property located on County Route 29/9 where they reside1 in a manufactured home
with an addition on the front. There is a porch on the front of the house.
During 1990 the hillside along the road began to slip. The hillside slip ended
up against the side of claimants’ manufactured home. This hillside slip caused
damage to their manufactured home. Then, the road was cleaned and repaired by
respondent and later in 1990 steel pilings were installed in an attempt to
stabilize the hillside. Duringthatyearthere was a rainstorm afterwhichthe
steelpilings fellonto a building owned by claimants, destroying it. The
hillside also fell against the house. Where the road first slipped, it pushed
the house in, nudging it against the floor. Respondent straightened the step of
the road, but did not remove the slip. According to respondent’s DisForce
supervisor, Jim Alford, the steel pilings installed had failed because the
weight from the hillside slide above the road caused the steel to fail and bend
allowing dirt or sloughage to slip into claimants’ yard.2 Claimants were
compensated $700.00 by respondent at that time for the damages to their
property.
Sometime prior to September 7, 1994, the hillside in the area again slipped.
During an investigation by Ben Savilla, an investigator for respondent,
information provided by the Federal Mine Reclamation indicated that the
hillside slippage was caused by mine subsidence from a nearby mine. The
investigator went to the site, took photographs and did sightings of how the
hillside slip had moved off of the State’s right-of-way. Since the expense of
core sampling outweighed its benefits, core s ampling was not utilized. The s
lope o ft he hillside s lip appeared to b e a gradual twenty feet. The bank
appeared to be eight to nine feet high and the hillside was determined to be
twelve to thirteen feet from the bottom of the bank to the top of the bank. The
front porch is approximately twelve to fifteen feet from the hillside.
Asixtoeightfootbytenfootbuildinganda fourroom house arealso onthe property?
From September 7 through 12, 1994, respondent again effected repairs to the
road. After the failure of the piling wall, respondent’s DisForce elected to
relocate the roadway into the hillside which would provide a more stable
environment. The operation conducted by respondent was more of a removal. The
hillside had slipped onto the blacktop. Earth and rock had to be removed.
1 Currently,
claimant Lawrence Ratcliff, his wife, and two sons occupy the property. At the
time of the time of the personal injury to Benjamin Ratcliff, he was living in
another house about forty feet away. Claimant Nettie Ratcliff currently
resides behind the manufactured home.
2DisForce is respondent’s heavy maintenance group.
The house is located in front of the manufactured home, but down over the hill,
unaffected by the hillside slip.
150 REPORTS
STATE COURT OF CLAIMS [W.Va.
Respondent used trucks, a track loader and excavator to complete the job. Both
the hillside slip and the steel pilings were removed. The road itself was moved
back into the h iliside and stabilized in order to allow for the flow o ft
raffic. R espondent removed the wet, unstable material that had slid and
replaced it with dry material. When the blacktop was removed, stone was placed
on the dirt in order to stabilize the road. Eventually, the road was moved
about a lane inside the hill towards the ditch line to reposition the road away
from where it had slipped over the hillside. After the work was completed,
respondent cleaned the area and made sure no sloughage was left on the hillside
above or below the loose material for slide prevention. This work performed by
respondent in September 1994 appeared to have stabilized the road.
Currently, the hillside slip is ten feet at one spot, and about four feet at
another spot. The slip contains dirt, rocks of different sizes, and a few
trees. As a result of respondent’s past road repairs, the slip was pushed
further down the hillside. Even after necessary road repairs, this hillside
slippage continued. Claimants’ manufactured home was once again damaged. The
floor had to be replaced, new sills were installed under the floor, and new
siding was put on the house. The cost to claimants was estimated at $2,000.00.
No appraisals or valuations have been made of the property or the manufactured
home. Claimants had grade work completed on their property by a friend from
Dunlow about three months prior to the June 23, 1999, hearing. A small grader
was used to landscape the front yard and a two to six foot path was cut out of
the slide. Because the hillside slip continues, claimants are unable to use
their property in a normal manner. They are in constant fear of the area around
the slip.
The incident giving rise to the personal injury claim occurred on September 15,
1994. Benjamin Ratcliff is the son of claimant Lawrence Ratcliff, and the
grandchild of claimants Fred and Nettie Ratcliff. On the day in question,
Benjamin Ratcliff, who is now eight years of age, but was about three years old
at that time, was playing in his grandparent s yard on County Route 29/9 about
one and one-half feet from the porch. During the period of September 7-12,
1994, respondent had taken out part of the hillside slip. On this particular
date of the incident an oblong rock, about three to four pounds with sharp
edges, fell about six feet from the top side of the hill striking Benjamin
Ratcliff in the forehead about three inches above his nose. This incident
occurred about four feet from the porch.
Claimant Nettie Ratcliff witnessed the accident. Claimant Lawrence Ratcliff was
not present at the time of the accident, but was informed of the accident by
his mother and came to the scene within five minutes. When claimant Lawrence
Ratcliff saw that his son was cut and bleeding, he immediately took him to
Three Rivers Medical Center in Louisa, Kentucky. At Three Rivers Medical Center
Benjamin Ratcliff received stitches and medication. The medical expenses
incurred were paid by his medical card.
W.Va.J REPORTS
STATE COURT OF CLAIMS 151
Before the incident, Benjamin Ratcliff had no pre-existing injures. He now
appears to suffer from two to three severe headaches per week, which last about
an hour. At the onset of a headache, Benjamin Ratcliff requires Motrin or
Children’s Tylenol to relive his headache pain. He has a knot on his forehead
about the size of a nickel and a scar from the stitches. Also, Benjamin
Ratcliff is nearsighted and requires glasses. The last time he had been seen by
a physician was two months prior to the June 23, 1999, hearing. At the request
of the Court, Benjamin Ratcliff was examined by Dr. Tonimasina Papa-Rugino, a
pediatric and adult neurologist. Dr. Papa-Rugino ordered an MRJ which was
performed upon the infant and a report of the results of the MRI was provided
to her. She then issued a clinical report in which she stated “that the
prognosis of post traumatic headaches is usually excellent and the headaches
only persist for a short period of time. It is unlikely, although not unheard
of, that post traumatic headaches will persist for so long subsequent to an
injury.” The Court concludes from the physical examination and the clinical
record that there is little probability that the headaches which Benjamin
Ratcliff complains of now are a result of the rock having struck him on his
head in 1994.
The position of respondent was that it properly maintained County Route 29/9.
When respondent’s records were checked by the Wayne County Storekeeper,
Geoffrey A dkins, found no complaints on orb efore 1994. R espondent’s design
employee, Jim Messer, found no complaints in the design records which date back
to about twelve to fifteen years. Respondent was not noticed about the hillside
slide problems. Only records for the hillside slip in September 1994 could be
found by respondent. Since 1994, there have been no further complaints received
regarding the hillside slip problem.
When respondent is on notice of instability of a hillside slip, and fails to
talce effective measures to deal with the problem, the failure to do so is
negligence. Bailey & Lucion v. Division of Highways, 20 Ct. Cl. 55
(1994).
In the case at hand, respondent has been on actual notice of the condition of
County Route 29/9 (Webb Road). Evidence adduced at the June 23, 1999, hearing
demonstrated that complaints were made previously to respondent regarding the
condition of the hillside slip. Four separate documents produced by claimants
at the June 23, 1999, hearing demonstrate that respondent was placed on notice
in 1989 regarding the problem. Respondent’s records show that on two prior
occasions in 1990, repair of the hillside slip was necessary.4 Afterwards,
respondent has been on the property several times in order to take corrective
measures and to stabilize the
Wayne County Storekeeper, Geoffrey Adicins, keeps records only for six months
to one year. The last search of the records by the Wayne County Storekeeper regarding
this claim was completed in 1995 or 1996 and the hearing was conducted on June
23, 1999.
152 REPORTS
STATE COURT OF CLAIMS [W.Va.
hillside slip. However, the problem persisted and the damage continued. There
is sufficient evidence of negligence on the part of respondent upon which to
base liability in these claims.
Notwithstanding respondent’s negligence, the Court is of the opinion to deny
the property damage claim. Claimants presented no evidence of the cost of
repairs to their property. This Court will not speculate as to the claimants’
property damages.
In the claim for and on behalf of Benjamin Ratcliff, the Court is of the
opinion to make a total award of $6,000.00 for his personal injuries from the
rock fall. The Court makes an award to Lawrence Ratcliff as the legal guardian
of Benjamin Ratcliff in the amount of $4,000.00 for his pain and suffering as
well as the disfigurement, scar, and the knot on his forehead. In addition, the
Court makes an award in the amount of $2,000.00 to Lawrence Ratcliff as the
legal guardian of Benjamin Nichols Ratcliff for the child’s future medical
needs, if any, necessitated by the injuries which he received as the result of
being struck by the rock.
The claim of Fred and Nettie Ratcliff is disallowed.
Award of $6,000.00 to Lawrence Ratcliff as the guardian and next friend of
Benjamin Nichols Ratcliff, an infant.
OPINION ISSUED JANUARY28, 2000
SHELIA F. SEABOLT
VS
DIVISION OF HIGHWAYS
(CC-97-l 50)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when her vehicle
struck a hole when she was traveling northbound on U. S. Route 19,
approximately one and one-half miles north of Birch River. U. S. Route 19 is a
road maintained by respondent in Nicholas County. The Court is of the opinion
to make an award in this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on March 5, 1997, at
approximately 10:30a.m. On the clear morning in question, claimant was
proceeding northbound from Craigsville toward Grant County in her 1986 Chevy
Cavalier on U. S. Route 19. Claimant travels this portion of highway about once
per week. At the
W.Va.] REPORTS
STATE COURT OF CLAIMS 153
time of the incident, construction
work had restricted the travel portion of highway to one ten foot lane with a
yellow divider line down the middle and no lines on the edges on the pavement.
In addition, there were orange and white barrels on the side of the highway.
Due to the construction on the highway and the vehicles ahead as well as behind
her vehicle, claimant operated her vehicle at a speed of forty-five miles per
hour in a sixty-five miles per hour speed zone. Suddenly, claimant observed a
hole in the road, but she was unable to avoid it because of her situation. The
driver’s side of the vehicle struck a ten to twelve inch hole in the pavement.
The impact damaged two tires, broke the vehicle’s windshield and required the
vehicle to be re-aligned. The loss sustained by claimant was in the amount of $358.15. Claimant’s
liability motor vehicle insurance policy did not provide insurance coverage for
this incident.
Respondent a cknowledged that there w as o ngoing c onstruction on U. S. Route
19. Employees of respondent were familiar with the defective condition of U. S.
Route 19, and kiiew that it was in a bad state of repair. According to
respondent, the contractor for the U. S. Route 19 project, J. F. Allen
Construction Company, Inc., which was under a “save harmless” obligation to
respondent, was responsible for the construction work at the location in
question. During the winter months, respondent was on snow and ice removal and
had difficulty reaching the contractor. However, respondent e stablished that
it p atrolled and repaired holes regularly in order to protect the traveling
public.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent liable
for road defects of this type, claimant must prove that respondent had actual
or constructive notice. Pritt vs. Dept
of Highways, 16 Ct. Cl. 8 (1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
In this present claim, the evidence established that respondent had actual
notice about the hazardous condition of U. S. Route 19 in Nicholas County. As
this Court stated in Bailey vs. Div.
of Highways (CC-98-146, unpublished
opinion issued September 8, 1999), respondent had employees at the construction
site responsible for supervising the actions of the contractor with regard to
the safety of the traveling public. Respondent had an obligation and a duty to
assure that the U. S. Route 19 construction s ite w as m aintained in a proper
m anner s uch t hat it did n otp ose a hazard to the traveling public. The
Court is of the opinion that respondent’s employees are responsible for
supervising the actions of the contractor at the construction site, and, on the
date of the incident herein, did not take reasonable steps to ensure the safety
of travelers upon U. S. Route 19. The failure of respondent’s employees to
supervise the contractor properly constitutes negligence for which claimant may
recover her loss.
154 REPORTS STATE
COURT OF CLAIMS [W.Va.
The “save harmless” clause relied upon by respondent is not applicable in a
claim of this nature as there is no privity between claimant, a third party,
and the parties to the construction contract. See Bailey, id.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $358.15
Award of$358A5
OPINION ISSUED JANUARY28, 2000
CHRISTINA SELMAN
VS.
DIVISION OF HIGHWAYS
(CC-98-191)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for damages sustained to her vehicle as her friend
was driving her vehicle and it went into two holes while they were traveling
together on Route 20. The incident occurred in the vicinity of the Little Glade
Baptist Church at milepost 21/z between
Camden-on-Gauley and Cowen. Route 20 is a road maintained by respondent in
Webster County. The Court is of the opinion to make an award in this claim for
the reasons more fully set forth below.
The incident giving rise to this claim occurred on May 22, 1998, at
approximately 8:00 to 9:00 p.m. On the clear night in question, claimant’s
friend, Kenneth Green, was driving her vehicle on Route 20 near the location of
the Little Glade Baptist Church which was situate on the right side of the
road. The headlights of claimant’s 1990 Dodge Daytona were operating at the
time. Route 20 is a priority one, two-lane, blacktop highway with a double
yellow line as the centerline and white lines indicating the edges of the
pavement. Each lane of Route 20 is about eight to ten feet in width. Claimant
and her friend frequently travel this portion of Route 20 but were not aware of
any holes in the paved surface of the road. Furthermore, neither claimant nor
her friend were aware of any warning devices at the scene.
As Mr. Green drove on the straight stretch of Route 20 at a speed of forty
miles per hour in the fifty-five mile per hour speed zone with no traffic in
front of or behind him, the vehicle suddenly and almost simultaneously struck
two separate holes, two to two and one-half feet wide and eighteen inches deep,
on the right side of the road surface of Route 20. The holes were described as
extending six to eight
W.Va.] REPORTS
STATE COURT OF CLAIMS 155
inches into the berm at the side of the pavement and into the paved portion of
the road some twelve to fifteen inches. The impact burst both of the tires on
the right side of the vehicle with other structural damage as well. Mr. Green
drove the vehicle to the residence of another friend for repairs. The following
day, claimant stated that she contacted respondent and reported the incident.
The damaged sustained to the vehicle was in the amount of $1,288.96. Claimant’s
liability motor vehicle insurance policy did not provide coverage for this
incident.
The position of respondent was that it did not have notice of the hole on Route
20 in Webster County. A review of respondent’s daily records indicates that
there were no complaints regarding any holes near milepost 2-V2 on Route 20
around the date of the incident, but respondent did not deny the possibility
that claimant contacted its local office. Later that summer, respondent
re-paved this portion of Route 20.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent
liable for road defects of this type, claimant must prove that respondent had
actual or constructive notice of the defect and a reasonable time to take
corrective action. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).
The evidence adduced at the November 4, 1999, hearing establish that respondent
had notice of the existence of the holes on Route 20 in Webster County at the
location of claimant’s accident. It is the opinion of the Court that the size
and location of the holes on Route 20 establish that they had been there for
some time; therefore, respondent had constructive notice of the condition of
the road. Additionally, respondent did not have record of claimant’s complaint,
but did not deny that claimant could have complained. If so, there could have
been prior complaints without record. Consequently, there is sufficient
evidence of negligence upon which to base an award.
Notwithstanding respondent’s negligence, the Court is also of the opinion that
the driver was negligent in the operation of claimant’s vehicle. Mr. Green
failed to operate claimant’s vehicle in such a manner as to avoid the holes
which were in their travel lane. Consequently, the Court imputes the negligence
of the driver to claimant, herein. In a comparative negligence jurisdiction,
such as West Virginia, a finding of negligence can reduce or bar recovery of a
claim. Based on the above, the Court finds that the driver was 30% negligent
for the incident that occurred. Since the driver’s negligence is not greater
than or equal to the negligence of respondent, claimant may recover 70% of the
loss sustained.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of 70% of the damages for a total award of $902.27.
Award of $902.27.
156 REPORTS
STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED JANUARY28, 2000
MARGARET ANN SHIELDS
VS.
DIVISION OF HIGHWAYS
(CC-98-O 1)
Claimant appeared pro
se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when her vehicle
struck a hole while she was traveling on Indian Creek Road near its junction
with Route 16. Indian Creek Road is a road maintained by respondent in Wyoming
County. The Court is of the opinion to make an award in this claim for the reasons
more fully set forth below.
The incident giving rise to this claim occurred on November 28, 1997, at
approximately 2:00 to 3:00 p.m. On the clear day in question, claimant was
proceeding along a curvy two-lane section of Indian Creek Road in her 1997 Cadillac
at a speed of twenty-two to twenty-seven miles per hour towards Welch, for a
doctor’s office visit’ Claimant rarely uses this route and was last on the road
about five to six months prior to the incident. Suddenly, the vehicle struck a
fourteen inch diameter hole in the road surface, three inches deep, and about
one foot from the edge of the pavement. The impact burst a tire and bent the
wheel rim. The vehicle sustained damage in the amount of $596.48. Within
claimant’s motor vehicle insurance policy, there is a deductible feature of
$1,000.00.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold
respondent liable for road defects of this type, claimant must prove that
respondent had actual or constructive notice of the defect and a reasonable
time to take corrective action. Chapman vs. Dept. of Highways, 16 Ct.
Cl. 103 (1986).
The evidence adduced at the October 28, 1999, hearing established that the hole
on Indian Creek Road was not one that was a recent occurrence. The Court is
While the vehicle is owned by Automotive Rentals, claimant leased the vehicle
through her employment with Mary Kay Cosmetics and is responsible for its
maintenance.
W.Va.J REPORTS
STATE COURT OF CLAIMS 157
of the opinion that respondent, at the least, had constructive notice that a
hole in that condition was a hazard to the traveling public. Consequently,
there is sufficient evidence of negligence upon which to base an award.
In view of the foregoing, the Court is of the opinion to and does make an award
in this claim in the amount of $596.48.
Award of $596.48.
OPINION ISSUED MARCH 9, 2000
DELBERT E. LOCKHART AND BETTY LOU LOCKHART
VS.
DIVISION OF HIGHWAYS
(CC-97- 106)
Claimants appeared pro Se.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for respondent.
WEBB, JUDGE:
Claimants brought this action for damages sustained to their real property due
to the alleged negligent maintenance of a ditch on the westerly side of County
Route 15, locally known as Berry Hill Drive, off of W.Va. Route 119,
near Davis Creek. County Route 15 is a road maintained by respondent in Kanawha
County. The Court is of the opinion to deny this claim for the reasons more
fully set forth below.
Claimant Delbert Lockhart has resided at this location on County Route 15 for
the past fifty-two years. County Route 15 is a secondary road that traverses in
a north-south direction. The road abuts a hillside on the easterly side above
claimants’ residence and there is a hollow in the westerly side. In 1973,
claimants placed a manufactured home on the property. Beginning in 1982,
claimants remodeled the manufactured home into a two-story residence. Claimants
installed a driveway approximately ninety to one-hundred feet in length which
extends from the north to the south across and down the hillside in front of
the residence to the bottom of the hill on the south side of the residence.
This driveway has a large parking area which leads to a do uble c ar garage. Be
tween the garage and the residence, there is a breeze-way. At the back of the
residence, there is a patio that wraps around the north side of the house to
the front of the house where it extends across the length of the house.
Claimants also built a fifty-six foot canopy six to seven years prior to
November 17, 1999, where they store their motor home. Claimants’ residence is
situated between the bank of Davis Creek to the east behind their home and
County
158 REPORTS
STATE COURT OF CLAIMS [W.Va.
Route 15.’ During the mid 1980’s, claimants began placing fill dirt onto
their property. Over a three-year period of time, claimants raised the level of
their property b ehind their residence from a pproximately four feet a bove the
creek to fifteen to eighteen feet above the creek. They have not experienced
any flood problems from Davis Creek.
Adjacent to c laimants’ property to the north on the h iliside, there is an
abandoned mine. The opening of the mine is at ground level at the rear of
claimants’ residence. T his s tructure h as c aused p roblems o n o ccasion w
hich are e xplained herein below.
Across County Route 15 on the west side of the road, there is a hollow with
certain drainage structures. Above the hollow there are two residences in an
area known as “Garden Heights,” one of which was built on fill material.
Respondent has placed some large rocks on the side of the hill where the house
built on the fill material is located. Below this area, about one-hundred-fifty
to two-hundred feet, there is a drain in the hollow. This hollow is directly
across County Route 15 from claimants’ property. During the 1980’s, claimants
allege that garbage was illegally dumped into the hollow. This occurred on many
occasions. As a result of the illegal dumping, the drainage structure for the
hollow became clogged during periods of excessive rainfall and water flowed
across County Route 15 onto claimants’ property. Claimant Delbert E. Lockhart
was aware of and knew the identity of the individuals responsible for the
illegal dumping. On several occasions, he contacted the West Virginia Division
of Natural Resources regarding the illegal dumping problem, but he asserted
that nothing was done to resolve the problem.
Claimants testified that on three specific occasions July 31, 1996; June 11,
1998; and June 13, 1998, water from the hollow flowed over County Route 15 and
onto their property. Claimant Betty Lou Lockhart compared the flooding on their
property to “Niagara Falls.” In 1996, water about seventeen inches high flowed
onto the back patio and breeze-way between the house and garage. This flooding
caused mud to flow onto the patio, into the breeze-way, into the kitchen area,
and even into the foyer from the front door. This claim is based upon the
damage to claimants property and residence as a result of the these occasions
of flooding.
According to Mr. Lockhart, the original stone culvert under county Route 15 had
fallen into a state of disrepair and had been clogged for about twelve years.
In an attempt to alleviate the drainage problem caused by the illegal dumping,
claimants’ son installed an eighteen-inch elbow pipe into the original stone
culvert about one foot deep. Claimants’ son then cut holes in the top of the
culvert pipe so
‘At the November 17, 1999, hearing, claimant Delbert E. Lockhart stated that
one of his neighbors informed him that his property is in an area that is
considered to be a flood zone by the Federal Emergency Management Association.
W.Va.] REPORTS
STATE COURT OF CLAIMS 159
that Water would flow through it and in the process keep trash and debris out
of the pipe. At the end of the pipe, claimants’ son also placed a screen over
the pipe. Mr. Lockhart acknowledged that the screen trapped trash, but he
asserted that he and his family personally maintained the drain. Later, the
eighteen inch pipe was washed out by flooding and Mr. Lockhart and his son
replaced it with a thirty inch drain pipe.2 Then, a catch basin, also known as
a “clean out,” was constructed by Mr. Lockhart and his son to channel water
into the creek and to alleviate the trash problem. In June or July of 1999, a
stone wall was built on the road side of claimants’ property to divert water
from their property into Davis Creek which is about fifty-five feet from the
garage.
Claimants contacted respondent on approximately ten to twelve occasions in 1990
regarding this drainage problem. While respondent has taken measures to address
the drainage problem, claimants assert that the problem still exists and water
continues to come over the roadway onto their property. Claimants are of the
opinion that the matter could be permanently resolved if respondent would
install a walk- through pipe across their property to channel the water from
the hollow across the road into Davis Creek instead of onto their property.
Due to the flooding on their property, claimants have had to replace marble
tile, carpet, and the entry door. To prevent further flood damage to the garage
area, claimants moved their garage door from the front side of the house to the
end of the house. In addition, claimants anticipate having to install a
retaining wall on the property. At one time, claimants had a fence line, but it
has been washed out by the flooding. Claimants established that they have
sustained damage in the amount of $11,859.62 as a result of the flooding. They
do not have a homeowners insurance policy which would have covered these
damages.
Moreover, in 1998, the main water line burst causing part of the bank on
claimants’ property to slip. Claimants received $8,000 from the water company
to compensate them for their losses at that time. Additionally, respondent
installed piling at the edge of County Route 15 to stabilize its road adjacent
to the hillside above claimants’ property.
On another occasion in March, 1999, the abandoned mine “blowed out” [sic] and
water began seeping out of it. Water went through the soil which was covering
the mine entrance. In an effort to eliminate water seepage from the mine, Mr.
Lockhart got a backhoe and dug a ditch from the opening of the mine to the
creek. The Division of Natural Resources and the Mine Reclamation Department
investigated this incident. Since then, the Mine Reclamation Association
reclaimed
2 While Mr. Lockhart asserted at the hearing that the
pipe was thirty-six inches, respondent’s expert in geotechnical engineering,
Dr. George Alan Hall, testified that he measured the pipe and found it to be
only thirty inches.
160 REPORTS
STATE COURT OF CLAIMS [W.Va.
the land and repaired the damages to claimants’ property caused by the
landslide. At that time, the Abandoned Mine Association installed piling
adjacent to claimants’ driveway to stabilize the hillside adjacent to the
driveway.
The position of respondent is that it took immediate corrective measures as
soon as it received notice regarding the drainage problem on County Route 15.
Highway Administrator Charles E. Smith visited claimant’s property during
the 1980’s to install a driveway drain and to clean debris out of the inlet end
of the pipe. Before Mr. Lockhart and his son installed their drainage system,
Mr. Smith indicated that there were no records of drainage problems.
Additionally, respondent has repaired three slides on County Route 15 during
the three years prior to the November 17, 1999, hearing. According to the then
acting Saint Albans Supervisor David Charles Starcher, pilings were installed
adjacent to the site in question during Christmas of 1996.
In the spring of 1997, respondent’s employees completed a drainage analysis and
determined that it was necessary to install a thirty-six inch by forty feet
smooth interior pipe across the road and on top of the existing culvert to
address the drainage problem on claimants’ property. This pipe is about four
feet deep. In addition, respondent installed an overflow pipe near the top of
the existing culvert and down into the catch basin. The catch basin, located
just below the road, connects the pipes constructed by claimant and additions
by respondent. The additions made by respondent’s employees tied the two pipes
together because claimants’ pipe was so much lower than the one that it added
to the thirty-six inch smooth interior p ipe. Respondent’s employees also added
onto the cinder block basin built by Mr. Lockhart and his son. Currently, the
pipe is one hundred seventy- seven feet from the water-hole to the point where
it discharges into Davis Creek. Further, respondent advised claimants to
contact the Division of Natural Resources regarding the illegal garbage dumping
in the hollow.
Respondent’s employees have c leaned de bris from the c ulverts and a lso
removed the portion of chain link fence placed by claimants’ son which was
covering the drainage pipe. Respondent’s employees believed that the covering
was not necessary. According to respondent’s expert in geotechnical
engineering, Dr. George Alan Hall, the construction of the riser pipe trapped
water and the water ponded, creating a sediment dam off the State’s right of
way. During a visit to the site in 1998, Mr. Smith described the water as
“sitting like a pond.” Water would have to build up in order to flow through
the pipe. Dr. Hall testified that the pipe claimant installed could not carry
the same amount of water the original box culvert carried, and, in fact,
claimants’ drainage project exacerbated the problem. The velocity of the water
drew in trash which was then trapped by the screen, diminishing the pipe’s flow
capacity.
According to Dr. Hall, there were two sources of water; the mine and the
hollow. These sources of water were causing the damage to claimants’ property.
Dr.
W.Va.] REPORTS
STATE COURT OF CLAIMS 161
Hall visited the site in August 1998, September 1998, and November 1999 to
conduct an examination of the property in preparation for testifying before
this Court. Dr. Hall described the drainage system in detail that exists in the
hollow, under County Route 15, and through claimants’ property to Davis Creek.
He explained that the riser structure or pipe placed by the claimant actually
created a sediment area with ponding occurring behind the structure. The
culvert pipe placed by c laimant is a thirty-inch pipe which c annot c arry the
flow o f water from the original box culvert. Thus, water backs up and ponds at
the upper end in order to push water through his system to flow to Davis Creek.
Dr. Hall informed the Court that there had not been any problems with drainage
in the area until the claimant installed his pipe. After that point, sediment became
trapped because the water was being ponded. Then the addition of the riser by
claimant compounded the problem and made it worse. The fencing placed at the
inlet portion of respondent’s thirty-six inch pipe acts as a trash rack so the
flow of water through it is diminished. The length of claimants’ pipe at 177
feet also reduces the capacity of the pipe due to the friction of the water.
The cure in his opinion is for claimant to install a conduit pipe with a larger
capacity than the box culvert originally installed by claimant, which would
resolve the capacity problem.
Dr. Hall also explained that the claimants’ property is subject to the flow of
water from two drainage areas, i.e., the hollow and the mine. The trash
dumped by various people in the area above the hollow for which respondent has
no responsibility has caused a portion of the problem and the actions taken by
the claimants themselves altogether created the flood problems experienced by
the claimants.
The Court has held that respondent has a duty to provide adequate drainage of
surface water, and drainage devices must be maintained in a reasonable state of
repair. Haught vs. Dept. of Highways, 13 Ct. Cl. 237 (1980). In claims
of this nature, the Court will examine whether respondent negligently failed to
protect a claimant’s property from foreseeable damage. Rogers vs. Div. of
Highways, 21 Ct.
Cl. 97 (1996).
In the instant claim, claimants have failed to established that respondent
maintained the drainage structures on the east side of County Route 15, in
Kanawha County, in a negligent manner. The Court is of the opinion that
respondent, once on notice of the situation on County Route 15, took immediate
and reasonable action to prevent any further drainage onto claimants’ property
from e xcess water flowing across the road onto their property. The terrain in
this area of County Route 15 places claimants’ property in a low place which is
the natural drainage area. In addition, the C ourt c oncludes that there are
many factors, other than the a ctions taken by respondent, which have brought
about the drainage problems and the resulting floods causing the damages to
claimants’ property. Consequently, there is
162 REPORTS STATE
COURT OF CLAIMS [W.Va.
insufficient evidence of negligence on the part of respondent upon which to
base an award.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED APRIL 12, 2000
BECKLEY NEWSPAPERS
VS.
PUBLIC SERVICE COMMISSION
(CC-00-83)
Claimant appeared pro Se.
Joy M. Cavallo, 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 $66.64 for advertisement services provided to respondent in
Raleigh County. The documentation for these services was not processed for
payment within the appropriate fiscal year; therefore, claimant has not been
paid. In its Answer, respondent admits the validity of the claim as well as the
amount, and states that there were sufficient funds expired in the appropriate
fiscal year from which the invoice could have been paid.
Accordingly, the Court makes an award to claimant in the amount of
$66.64.
Award of $66.64.
OPINION ISSUED MAY 4, 2000
BELL ATLANTIC-WEST VIRGINIA, INC.
VS.
EDUCATION AND STATE EMPLOYEES GRIEVANCE BOARD
(CC-00- 107)
Joseph J. Seasick, Jr., Attorney at Law, for claimant.
Joy M. Cavallo, Assistant Attorney General, for respondent.
W.Va.j REPORTS
STATE COURT OF CLAIMS 163
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant seeks $224.96 for unpaid telephone charges for the fiscal years 1997
and 1998. The documentation for these services was not processed for payment
within the appropriate fiscal years; therefore, claimant has not been paid. In
its Answer, respondent admits the validity of the claim as well as the amount,
and states that there were sufficient funds expired in the appropriate fiscal
year from which the invoice could have been paid.
Accordingly, the Court makes an award to claimant in the amount of
$224.96.
Award of $224.96.
OPINION ISSUED MAY 4, 2000
MARGARET HILL
VS.
DIVISION OF HIGHWAYS
(CC-94-65 I)
Claimant appeared pro
Se.
Andrew F. Tarr & Xueyan Zhang,
Attorneys at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her vehicle
struck a hole in the pavement of U.S. 60 while she was traveling outside of
Montgomery, near Cedar Grove in Kanawha County. The highway in question is
maintained by respondent in Kanawha County. The Court is of the opinion to deny
this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on April 17, 1994, at
approximately 9:45 p.m. On the night in question, claimant was traveling
from Montgomery, near West Virginia University Institute of Technology, to
Charleston in her 1993 Dodge Daytona. As claimant proceeded at a speed of about
forty miles per hour, he r v ehicle suddenly struck a hole located near the
double-yellow line delineating the center of the road. The impact with the
defect in the road caused the vehicle’s left front tire to burst and damaged
the tire on the other side. After the incident, a policeman arrived at the
scene and infonned claimant of an Exxon station in the vicinity. Claimant then
drove her vehicle to the Exxon station where an attendant replaced the damaged
tire with the spare tire. The resulting damage to
164 REPORTS STATE
COURT OF CLAIMS [W.Va.
claimant’s vehicle was in the amount of $318.74. Claimant has a deductible
feature of $250.00 in her motor vehicle insurance policy coverage which would
limit any recovery to that amount. See Sommerville,
et al. vs. Div. of Highways, 18 Ct.
Cl. 110(1991).
Respondent did not produce any witness or other evidence in this claim, but
agreed to submit the claim upon testimony taken on the 10th day of October, 1997. This claim had been scheduled on
several occasions prior to the 23td day of
March, 2000, when claimant was able to appear. She agreed to submit the claim
to the Court for determination on that date.
The well established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130
W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent liable for road
defects of this type, claimant must prove that respondent had actual or
constructive notice of the defect and a reasonable time to take corrective
action. Chapman vs. Dept. of Highways,
16 Ct. Cl. 103 (1986).
In the instant claim, claimant failed to establish that respondent had
kiiowledge of the hole on the road between Montgomery and Charleston.
Consequently, there is insufficient evidence of negligence on the part of
respondent upon which to base an award.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPiNiON ISSUED JANUARY28, 2000
MUSTAPHA M. NASSER
VS.
REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY
(CC-00- 104)
Claimant appeared pro Se.
Joy M. Cavallo, 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.
W.Va.] REPORTS
STATE COURT OF CLAIMS 165
Claimant, an employee of respondent at
the Southwestern Regional Jail in Logan County, seeks reimbursement of $97.00
for items of personal clothing that were damaged in his work locker by mice. In
its Answer, respondent admits the validity of the claim as well as the a mount,
and states that the claim is fair and reasonable. Respondent does not have a
fiscal method to pay a claim of this nature.
The Court, having reviewed the facts and circumstances in this claim, has
determined that the claimant is entitled to a recovery for his damaged
property. Accordingly, the Court makes an award to claimant in the amount of
$97.00.
Award of $97.00.
ORDERED
ENTERED MAY26, 2000
IN THE COURT OF CLAIMS STATE OF WEST
VIRGINIA
NITRO ELECTRIC COMPANY,
Claimant,
v.
REGIONAL JAIL AND
CORRECTIONAL FACILITY
AUTHORITY,
DOCKET NO. CC-95-109
Respondent and Third-Party
Claimant,
V.
SILLING ASSOCIATES, INC.,
CARLTON, INC., and
INSURANCE COMPANY OF NORTH AMERICA,
Third-Party Respondents.
CONSENT ORDER
-and AWARD
On the 26th day of May, 2000, the parties to this action, Claimant Nitro
Electric Company, Respondent and Third-Party Claimant Regional Jail and
Correctional Facility Authority, and Intervenors Silling Associates, Inc.,
Carlton, Inc., and Insurance Company of North America, came before the Court
and
166 REPORTS STATE
COURT OF CLAIMS [W.Va.
requested that the Court enter this Consent Order and Award in order to effect
a fmal resolution of the claims of the parties asserted in this action.
UPON CONSIDERATION of the following, the agreements of the parties hereto, the
arguments of counsel, and the consent of the Executive Director of the Regional
J au and C orrectional Facility A uthority and the 0 ffice o ft he Attorney
General of the State of West Virginia, it is hereby ORDERED as follows:
1. Prior to June 1, 1990, the RJCFA undertook to plan, design, and construct a
prison facility to be known as the Mount Olive Correctional Complex, located on
Cannelton Hollow Road, County Route 2, Smithers, Fayette County, West Virginia
(‘Project”).
2. On or about June 8, 1990, the RJCFA entered into a contract with Silling
Associates, Inc. (“Silling”) pursuant to which Silling undertook to provide
architectural, construction administration, and project management services
related to the design and construction of the Project (“RJCFA/Silling
Contract”).
3. On or about June 4, 1992, the RJCFA entered into a contract with Carlton,
Inc. (“Carlton”) pursuant to which Carlton was to perform all work designated
by the Contract Documents as that to be performed by the General Construction
Contractor (“RJCFAICarlton Contract”).
4. On or about June 4, 1992, Insurance Company of North America
(“NA”) issued a performance bond wherein Canton was named as principal, and
NA was named as surety, with regard to the RJCFAICarlton Contract (“INA
Performance Bond”).
5.
On or about June 4, 1992, NA, issued a
labor and material payment bond wherein C arlton w as n amed a s p rincipal,
and I NA w as n amed a s surety, with regard to the RJCFAJCarlton Contract (“NA
Payment Bond”).
6. On or about June 3, 1992, the RJCFA entered into a contract with
Claimant Nitro, pursuant to which Nitro was to perform all work designated by
the
Contract Documents as that to be performed by the Electrical Contractor
(“RJCFAi’Nitro Contract”).
7 . During the course of the construction of the Project,
Nitro contended that it was damaged as a result of, among other things, (1)
Carlton’s failure to perform properly its scheduling and coordination
responsibilities and its work pursuant to the RJCFAJCarIton Contract, (2)
Silling’s failure to properly perform its construction administration and
project management services pursuant to the RJCFAISilling Contract, and (-‘I)
the RJCFA’s failure to provide information timely from its security hardware
supplier, failure to require Canton to perform its scheduling and coordination
responsibilities, failure to require Silling to perform its construction
administration and project administration ser vices, and the issuance of
directives to accelerate the completion of the Project in the face of delays
for which Nitro contended extensions of time to the performance of the
RJCFAJNitro Contract were due to be granted (collectively “Nitro Claims”).
W.Va.J REPORTS
STATE COURT OF CLAIMS 167
8. By cover letter dated January 30, 1995, Claimant Nitro forwarded to the RJCFA and Silling, Nitro’s claim
for damages in the sum of $3,039,966, with a supporting Request for Additional
Compensation dated January, 1995, and a Labor Impact Analysis dated January,
1995, prepared by an expert in the field of construction labor productivity
loss and damages assessment, all supporting the claim of Nitro in the amount of
$3,039,966.
9. On or about April 21, 1995, Nitro filed a Verified Notice of Claim
(“Verified Claim”) in the Court of Claims for the State of West Virginia, said
action styled Nitro Electric Company v. West Virginia Regional Jail and
Correctional Facility Authority, State of West Virginia, Claim No.
CC-95-109 (“Court of Claims Action”), seeking damages of $3,039,966, interest,
attorneys’ fees, and other unspecified relief for claims relating to the
RJCFA/Nitro Contract, Nitro Claims, and Project.
10. On or about December 10, 1999, Silling filed its Motion to Intervene in the
Court of Claims Action in response to a demand from the RJCFA that Silling
defend the RJCFA in the Court of Claims Action (“Silling Intervention”).
11. On or about January 20, 2000, Carlton and 1NA filed their Motion to
Intervene in the Court of Claims Action in response to a demand from the RJCFA
that Canton and INA defend the RJCFA in the Court of Claims Action
(“CarltonIINA intervention”).
12. The RJCFA as Respondent, and Canton, INA, and Silling, as Intervenors
herein, conducted extensive document and deposition discovery directed at
Nitro’s claim for damages totaling $3,0-’19,966. The parties reviewed
thoroughly the Project records generated and maintained by the RJCFA, Nitro,
Carlton, Silling, and other contractors and subcontractors not parties to this
action. Nitro’s job cost reports, fmancial information, and claim back-up were
produced and thoroughly reviewed by representatives and counsel for the RJCFA,
Carlton, NA, and Silling, as well as experts retained by the Respondent and
Intervenors to review Nitro’s claims. No fewer than eight (8) depositions of
Nitro Project personnel were conducted, consuming over fifteen (15) days. In
addition, the RJCFA and the Intervenors conducted a twelve hour deposition of
Nitro’s productivity and damages expert.
13. Upon conclusion ol’ the discovery, the parties engaged in protracted
settlement negotiations. As a result of the settlement negotiations, Claimant
Nitro, Respondent RJCFA, and Intervenors Carlton, NA, and Silling reached a
settlement of the Nitro Claims, as well as a resolution of all claims and
disputes relating to the RJCFAfNitno Contract and RJCFA/Canlton Contract.
14. The terms of the settlement which resolved Nitro’s claims totaling
$3,039,966, plus interest, are as follows:
a) Carlton, NA, and Silling will collectively pay to Nitro the sum of
$1,213,000.
168 REPORTS STATE
COURT OF CLAIMS [W.Va.
b) The RJCFA will pay to Nitro from special revenue fund #6676- 2000-0615-099
the unpaid contract amount of $82,917 currently retained under the RJCFAJNitro
Contract.
C) The RJCFA consents to an Award in favor of Nitro in the amount of $204,083,
to settle any and all disputes, including, without limitation, Nitro’s claims
for alleged acceleration efforts it undertook, and the resultant costs it
incurred, to deliver to the RJCFA the Project on a date in advance of the date
the Project would have been delivered to the RJCFA had Nitro been granted time
extensions ‘s accordance with the terms of the RJCFAJNitro Contract.
15. The RJCFA, through its counsel, and in conjunction with non- testifying
experts retained to review the Nitro, Claims, consents to entry of this Order
in that its terms represent fair compensation to Nitro, and eliminate an
exposure of the RJCFA to the Nitro Claims in the principal amount of
$3,039,966, which with interest at the statutory rate of 10% per
annum create a total potential
liability and exposure to the RJCFA in excess of $4,500,000. In addition, the
settlement of this matter will allow the RJCFA and Attorney General to avoid
the attorneys’ fees and experts’ fees and expenses which would attend
conducting the trial during the weeks of May 15-19 and June 12-16, 2000, and
thereafter, if necessary, as well as additional discovery scheduled during the
intervening periods.
16. All claims, counterclaims, cross-claims and third-party claims filed in
this Action by any of the parties will be withdrawn with prejudice upon Nitro’s
receipt of the settlement proceeds set forth in paragraph nos. 1 and 2 of the
Settlement Agreement and Mutual Release entered into by and among the parties.
17. The parties acknowledge that the actual payment of said sum of
$204,083 is contingent upon this Consent Order and Award’s approval by the
Legislature of the State of West Virginia by way of appropriation from the
general
revenue fund, and thatsaid amount shall not be paid from the operating budget
of the
RJCFA.
18. By execution of this Consent Order and Award, the RJCFA represents that it
is in the best interests of the State of West Virginia and the RJCFA to resolve
the disputes referenced herein pursuant to the terms of this Consent Order and
Award.
UPON CONSIDERATION of the foregoing, this Court hereby enters an Award in favor
of Claimant Nitro Electric Company and against the Respondent Regional Jail and
Correctional Facility Authority in the amount of Two Hundred and Four Thousand
Dollars ($204,083.00).
SO ORDERED, this 26th day of May, 2000.
OPINION ISSUED JUNE 8, 2000
W.Va.j REPORTS
STATE COURT OF CLAIMS 169
BILLY ARTHUR AND SHERRY WELLMAN
VS.
DIVISION OF HIGHWAYS
(CC-98-29)
Thomas Zamow, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by counsel for claimant and counsel for respondent wherein certain facts
and circumstances of the claim were set forth as follows:
1. On January 24, 1996, claimants were traveling on W.Va. Route 10 in the town
of Logan, in Logan County in a vehicle owned by Ms. Weliman. As claimants
approached the State Police Bridge, a rock fell from the hillside beside the
road and struck the vehicle. Ms. Weliman’s vehicle sustained damage and Mr.
Arthur sustained personal injuries.
2. On the date of the incident herein, respondent was aware that this portion
of W.Va. Route 10 was known as an area prone to having rockfalls occur
frequently. Respondent failed to maintain warning signs or otherwise protect
the traveling public at the location in question.
3. As a result of the incident, claimants brought this claim to recover damages
in the amount of $10,000.00. However, both claimants agreed to settle this
claim against respondent for the amount of $4,000.00, which will be allocated
as follows:
a. an award in the amount of $3,000.00 to Billy Arthur.
b. an award in the amount of $1,000.00 to Sherry Wellman.
4. Respondent agrees that the amount of damages as put forth by claimants is
fair and reasonable.
The Court has reviewed the facts of this claim as stated in the Stipulation,
and adopts the statement of facts as its own. The Court fmds that respondent
was negligent in its maintenance of W.Va. Route 10 in Logan County on the date
of claimants’ incident; that the negligence of respondent was the proximate
cause of the injuries suffered by claimants; and that the amount of the damages
agreed to by the parties is fair and reasonable.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $4,000.00.
Award of $3,000.00 to claimant Billy Arthur.
Award of $1,000.00 to claimant Sherry Wellman.
170 REPORTS
STATE COURT OF CLAIMS [W.Va.
OPIWION ISSUED JUNE 8, 2000
JO ANN BRADSHAW, INDIVIDUALLY,
AND JO ANN BRADSHAW, AS ADMINISTRATRIX
OF THE ESTATE OF BERNARD BRADSHAW, JR.
VS.
DIVISION OF HIGHWAYS
(CC-99-63)
Katherine L. Dooley, Attorney at Law, for claimant.
Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent.
WEBB, JUDGE:
Claimant J0 Ann Bradshaw brought this action for personal injuries and for the
wrongful death of her husband, Bernard Bradshaw, Jr., when the vehicle in which
she and her husband were traveling was struck by a large boulder on 1-77 one
quarter mile south of the Edens Fork road exit in Kanawha County. 1-77 is a
highway maintained by respondent. The Court is of the opinion to deny this
claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on November 7, 1998, at
approximately 7:51 p.m. On the night in question, claimant and her husband were
proceeding southbound in their 1998 Dodge Intrepid on 1-77. They were returning
from Wheeling to their residence in Huntington. They were traveling at a speed
of about seventy miles per hour. Along the interstate in this vicinity, there
were no signs indicating that this area was a rock fall area. As claimant’s
husband drove their vehicle on the interstate in the right lane of the two
southbound lanes, the vehicle was struck by a large boulder that was in the act
of falling from the high rock face on the west side of the highway above the
interstate. The impact with the boulder crushed the front of the vehicle.
Tragically, claimant’s husband died at the scene and claimant sustained severe
personal injuries.
Claimant asserts the following:
1) that respondent was at fault for this collision as it had actual or, at the
least, constructive notice of the unsafe condition posed by the proximity of
the rock wall adjacent to the highway and its potential to break away from the
hillside and fall onto the highway below;
2) that despite the knowledge it had, respondent negligently and with gross and
wilful, wanton and reckless disregard for the safety of citizens failed to take
measures that would have protected the safety of the public generally from the
dangers of falling rock where the highway passed through a cut-away hillside;
W.Va.J REPORTS
STATE COURT OF CLAIMS 171
3) that the respondent failed to warn the public of the potential of falling
rock; and,
4) that respondent knew or should have known of the dangers of falling rock and
used accepted engineering practices to prevent the same.
Claimant established in the presentation of its claim that a rock fall had
occurred in 1994, to the south of the area in question, which involved a large
rock falling from the hillside above the interstate. It is this occurrence
which claimant contends gave notice to respondent that the whole area had a
potential for hazardous rock falls. In support of its allegations, claimant
provided evidence that, as a general practice, when a rock greater in size than
a person’s hand falls near the road surface, the maintenance supervisor over
the road in question has a duty to notify the district office. However, there
was nothing in respondent’s records to ascertain whether the 1994 incident was
reported to the district office and there was nothing to establish that the
specific hillside area had been inspected after the 1994 rock fall. Claimant
contends that the incident in 1994 provided respondent with sufficient notice
of a hazardous area and the opportunity to make necessary corrections, but it
failed to exercise due diligence in correcting the known rock fall hazard,
which could have prevented this catastrophe. In 1994, claimant asserts that
respondent should have conducted an engineering survey of the hillside for
potential rock fall evidence, and respondent should have installed falling rock
signs at this location. Further, respondent, having had notice of the previous
incident, should have monitored the area and should have taken action to remove
any rocks or areas of rock that potentially could fall from the hillside onto
the interstate.
Additionally, claimant established that respondent’s employees did not receive
specific training in the recognition of hazardous areas on hillsides of this
nature so that they would have the knowledge to advise their superiors of
potential rock fall areas.
Respondent maintains that it had no notice regarding p otential rock fall
problems in this specific area of 1-77 at mile post 106 in Kanawha County. The
location in question is not a known rock fall area. At the hearing, the parties
stipulated that respondent’s employees were on this portion of the interstate
on a daily basis. These employees were performing routine maintenance.’ Once
respondent received information regarding the rock fall in this claim, it
immediately dispatched employees to the site to remove the boulder, to clear
rock debris from the highway, and to secure the scene. Furthermore, David
Charles Fisher, Supervisor of the Sissonville office, testified that the 1994
rock fall incident occurred some one
‘Records maintained by respondent indicated employees were looking for hazards
such as debris on the road surface or on the berm area. They also patrolled for
holes or other vehicular hazards.
172 REPORTS
STATE COURT OF CLAIMS [W.Va.
hundred-fifty feet south of the location in this claim at mile post 111. In
that incident a rock approximately three to four feet high by four feet long
and three to four feet wide had fallen from the mountain and made it onto the
shoulder area of the road. Before this incident, he had not observed any
formations on the rock face that should have caused concern. Although Mr.
Fisher was sure that he reported this incident to his superior, he did not have
any record to establish that the district office was notified about the 1994
rock fall incident.
According to respondent’s expert in geotechnical engineering, Dr. George Alan
Hall, the rock formation at this location on 1-77 consists of a fairly massive
layer o f s andstone approximately twenty feet thick with embedded thin layers
of sandstone and soft shale and more soft shale in the hillside below the rock,
a geological formation prevalent throughout the State. Dr. Hall explained that
there are problems with all rock in this situation because there are joints and
fractures in the rock. This particular formation also had another problem in
that there is soft shale beneath the sandstone which can weather away and
remove some support form the bottom of the sandstone. The fractures leave a
wedge shaped piece of rock between the fractures and when shale weathers out
from underneath these wedge shape fractured pieces of sandstone, frequently
removing the support underneath the sandstone, then a sandstone block can break
off and fall. The piece of the face of the hillside that fell onto the Bradshaw
vehicle was estimated to be approximately eight feet high, seven feet wide
across the face, and about three and a half feet thick. He described this piece
of rock as being nearly one hundred cubic feet of rock. Photographs in evidence
depict the exact area from which the boulder came out of this hillside and
rolled down onto the highway. There is evidence of the path which the boulder
took down the hillside since debris was left on the hillside and there was
evidence that vegetation was disturbed. Dr. Hall opined that a rock fall like
this can break very suddenly and there is no way to prevent it, i.e., the
rock fall event from occurring.
Dr. Hall indicated that employee training regarding this type of formation is
an issue of common sense and that the key to a rock face inspection is
observing movement in the rock face. If there is movement in the rock face as
evidenced by a visual observation of fractures therein, then respondent has a
cause for concern. Before the incident herein, Dr. Hall testified that he
regularly traveled this portion of road, and he did not observe any movement in
the hillside strata. Further, Dr. Hall is of the opinion that the crevice in
the hillside visible after this particular rock fall and the rock fall itself
could have occurred simultaneously. The rock that struck the Bradshaw vehicle
appeared to have “popped out very quickly” from the hillside. This act g ave
the rock the initial velocity to roll rapidly and leap into the road. Usually
there have been cycles of cooling, heating, freezing, thawing, causing the rock
to break loose suddenly and move very quickly. Consequently, Dr. Hall opined
that prior to the rock fall incident herein respondent had no reason to be
W.Va.] REPORTS
STATE COURT OF CLAIMS 173
concerned that there was a potential for a rock fall from this exact hillside
location on 1-77.
In a nswer to questions a bout the use o f b enching on hillsides, Dr. H all
explained that benches can be used as catchnient areas for rocks, but these
areas are generally at the bottom of the hillside. In the instant claim at the
location of the rock fall on 1-77, there is an area at the bottom of the
hillside 12-15 feet wide that serves as both a ditch and catchment area. There
is also a guardrail at this location adjacent to the interstate. However, Dr.
Hall testified that benches placed in horizontal planes on hillsides may be
10-20 feet in width and these are to weather and to help prevent the weathered
zone in the shale. The benches are not intended to catch rocks falling from the
hillside.
This Court has consistently held that the unexplained falling of a boulder or
rock debris on the road surface is insufficient to justify an award. Mitchell
vs. Division of Highways, 21 Ct. Cl. 91(1996); Hammond vs. Dept. of
Highways, 11 Ct. Cl. 234 (1977). In order to establish liability on behalf
of respondent, the evidence must establish that respondent had notice of the
dangerous condition posing the threat of injury to property and a reasonable
time to take suitable action to protect motorists. Alkire vs. Division of
Highways, 21 Ct. Cl. 179 (1997).
The evidence adduced by claimant at the hearing failed to establish that
respondent was negligent in assuring the safety of the traveling public on 1-77
in Kanawha County. As soon as respondent became aware of the rock fall on 1-77,
it took hmnediate corrective action. Based upon the resources available to the
State and the number of rock formations in this State, it is a practical
impossibility to do in-depth statewide inspections of all rock face hillsides
along all of the State- maintained roads in our State. According to the
testimony of Dr. Hall, even if an intensive inspection had been conducted in
this specific area before the incident, there was nothing to indicate a hazard
to the traveling public. As a practical matter, the Court is of the opinion
that the usual and customary inspections of this particular rock face and
hillside performed by respondent could not have prevented this terrible
tragedy. While the Court is sympathetic to the plight of claimant and her
family, and the ensuing tragedy with which they daily live, the fact remains
that there is insufficient e vidence o fn egligence upon which to b ase an
award. T he C ourt is mindful of the fact that the claimant was ably
represented by her attorney who made a thorough and complete presentation of
the evidence available to her.
In accordance with the finding of facts and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JUNE 8, 2000
174 REPORTS STATE
COURT OF CLAIMS [W.Va.
STEVEN L. BRAITHWAITE
VS.
DIVISION OF HIGHWAYS
(CC-99-43 5)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when his wife was
driving his vehicle southbound on Rock Cliff Drive toward Martinsburg and the
vehicle struck a hole in the road surface.1 Rock Cliff Drive is a road
maintained by respondent in Berkeley County. The Court is of the opinion to
make an award in this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on September 23, 1999, at
approximately 9:00 a.m. On the clear morning in question, claimant’s wife,
Brenda L. Br aithwaite, was driving claimant’s 1995 F ord
Windstar s outhbound on Rock Cliff Drive at a speed of thirty to thirty-five
miles per hour toward claimant’s place of employment. Mr. Braithwaite and his
grandson were passengers in the vehicle at the time. Rock Cliff Drive is a
two-lane asphalt road with a speed limit of forty five miles per hour. About a
block after Ms. Braithwaite drove across the 1-8] overpass bridge and entered
into a curve in the road, the vehicle struck a four to six inch hole on the
edge of the pavement that had deteriorated into the white line indicating the
edge of the road surface. The impact burst the vehicle’s passenger side front
tire and bent the wheel rim. Ms. Braithwaite then proceeded to the nearby state
road shed and informed respondent of the incident. According to Ms.
Braithwaite, she was informed by respondent’s employees at the state road shed
that they were aware of the hole, but had not repaired it. Since claimant has a
deductible feature of $500.00, he was personally responsible for the sustained
loss of $409.84, the lower of the estimates provided to the Court.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins VS.
Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold
respondent liable for road defects of this type, claimant must prove that
respondent had actual or constructive notice of the defect and a reasonable
time to take corrective action. Chapman
vs. Dept. of Highways, 16 Ct. Cl. 103
(1986).
1At the April 20, 2000, hearing, the Court amended the style of the claim to
reflect the fact Mr. Braithwaite was the only owner of the vehicle.
W.Va.J REPORTS
STATE COURT OF CLAIMS 175
In this present claim, the evidence
adduced at the April 20, 2000, hearing established that respondent had actual
notice of the ho le on Rock Cliff Drive in Berkeley County and failed to assure
the safety of the traveling public. Consequently, there is sufficient evidence
of negligence upon which to base an award.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to make an award in this claim.
Award of $409.84.
OPINION ISSUED JUNE 8, 2000
RALPH S. COMBS AND NORMA L. COMBS
VS.
DIVISION OF HIGHWAYS
(CC-99-402)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage sustained when their vehicle
struck debris as claimant Norma L. Combs was traveling southbound on 1-79 near
the town of Jane Lew at mile marker 106.1 1-79 is a road maintained by
respondent in Harrison County. The Court is of the opinion to deny this claim
for the reasons more fully set forth below.
The incident giving rise to this claim occurred on September 18, 1999, at
approximately 10:00 a.m. On the morning in question, claimant Norma L. Combs
and a friend, Carolyn Brooke, were proceeding southbound from Clarksburg. They
were in the right lane of 1-79 in claimants’ 1998 Chrysler Concorde LXI
traveling at a speed of about fifty-five miles per hour. As Mrs. Combs
proceeded along the road near mile marker 106 in Jane Lew, she maneuvered the
vehicle into the passing lane to pass another vehicle. After passing the
vehicle, Mrs. Combs observed a binder ratchet tie down and other tractor
trailer debris on the road surface of the passing lane. Mrs. Combs tried to
swerve the vehicle around the debris, but during the process, the vehicle
struck the debris. The impact with the debris caused the
‘At the April 20, 2000, hearing the Court amended the style of the claim to
reflect the fact that both Mr. and Mrs. Combs are owners of the vehicle.
176 REPORTS STATE
COURT OF CLAIMS [WVa.
vehicl&s front tire to burst, punctured portions of the plastic cover
underneath the vehicle, and punctured the gas tank. Afterwards, one of
respondent’s courtesy patrolmen stopped to assist Mrs. Combs in changing the
vehicle’s tire and cleared the debris from the road surface. While claimants
sustained a loss in the amount of $1,295.03, they have a deductible feature of
$500.00 in
their motor vehicle insurance policy and
any recovery would be limited to this amount. Sommerville, et at. vs. Div. of Highways, 18 Ct. Cl. 110 (1991).
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent liable
for road defects of this type, claimant must prove that respondent had actual
or constructive notice of the defect and a reasonable time to take corrective
action. Chapman vs. Dept. of Highways,
16 Ct. Cl. 103 (1986). The unexplained
presence of debris on the road surface, without a positive showing of
negligence on the part of the respondent, is insufficient to justify an award. Salmen vs. Div. of Highways (CC- 97-365), unpublished opinion issued December 1,
1998.
In this present claim, the evidence adduced at the April 20, 2000 hearing
failed to establish that respondent had notice of a hazardous condition on 1-79
in Harrison County. While the Court is of the opinion that claimants’ vehicle
struck debris on the road surface of 1-79, that fact alone is insufficient to establish
negligence on the part of respondent. Consequently, there is insufficient
evidence of negligence upon which to base an award.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JUNE 8, 2000
DEBRA ANN ELSEA
VS.
DIVISION OF HIGHWAYS
(CC-99-33 I)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when her vehicle
struck a tree while traveling on Route 45/8, locally known as Boyd Orchard
Road, in
W.Va.j REPORTS
STATE COURT OF CLAIMS 177
Martinsburg. Route 45/8
is a road maintained by respondent in
Berkeley County. The Court is of the opinion to make an award in this claim for
the reasons more fully set forth below.
The incident giving rise to this claim occurred on July 27, 1999, at
approximately 5:10 a.m. At dawn on the morning in question, claimant was
traveling on Route 45/8 in her 1997 Ford Aerostar van, which had a rack
on the top. She was driving at a speed of about fifteen to twenty miles per
hour with the aid of the vehicle’s headlights. At this location, Route 45/8 is
a secondary gravel road. As Ms. Elsea took her usual route on this road
delivering newspapers, she approached an area with trees on the side of the
road. Suddenly, her vehicle was struck by a limb hanging above the roadway from
a tree on the side of the road, cracking the windshield and breaking the rack on
top of the vehicle. While claimant sustained a loss in the amount of$l,060.80,
she has a deductible feature of $200.00 in her motor vehicle insurance policy
and any recovery would be limited to that amount. Summerville, et a!. vs.
Division of J-Iighways, 18 Ct. Cl. 110 (1991).
The position of respondent was that it did not have notice of the condition of
this particular tree on Route 45/8 in Berkeley County. However, according to
respondent’s daily records, respondent’s employees were at the location in
question on two occasions prior to claimant’s incident. On July 24, 1999,
respondent’s employees were on Route 45/8 regarding tree problems and later on
July 26, 1999, respondent’s employees were mowing brush along the road.
The Court has held in prior claims that when the evidence establishes that
respondent does not have notice of a hazard, such as a leaning tree, and a
reasonable opportunity to remove it, respondent will not be held liable. Jones
v. Division of Highways, 21 Ct. Cl. 445 (1995).
In this present claim, the evidence adduced at the April 20, 2000, hearing
established that respondent had at least constructive notice of the that this
tree posed a hazard to the traveling public. The photographic evidence adduced
by claimant established that the tree in question was in fact dead.
Respondent’s employees were at the location on two prior occasions and should
have been aware of the hazard posed by the tree. Consequently, there is
sufficient evidence of negligence upon which to base an award.
In accordance with the findings of facts and conclusions of law stated herein
above, the Court is of the opinion to make an award in this claim.
Award of $200.00.
OPINION ISSUED JUNE 8, 2000
SARAH FERNANDEZ
178 REPORTS
STATE COURT OF CLAIMS [W.Va.
VS.
DIVISION OF HIGHWAYS
(CC-96-505)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
her vehicle striking a hole while her son and a friend were traveling in the
center westbound lane of 1-64, near the Montrose exit, in South Charleston.
This portion of 1-64 is a road maintained by respondent in Kanawha County. The
Court is of the opinion to deny this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on May 5, 1996, at
approximately 9:00 p.m. On the cloudy night in question, claimant’s son,
Alberto B. Fernandez and a friend, Christina Newman, were proceeding toward
West Virginia State College from a trip to Norfolk, Virginia, in claimant’s
four door 1994 Toyota Corolla. As Mr. Fernandez drove the vehicle at a speed of
about sixty miles per hour along 1-64 with the aid of the vehicle’s headlights,
it suddenly struck a hole that covered a third of the center travel lane, near
the Montrose exit. As the vehicle approached the Dunbar exit, Mr. Fernandez
began to have difficulty driving the vehicle and he stopped to inspect the
vehicle. The encounter with the hole burst the vehicle’s left front tire and broke
the wheel rim. The following day, Mr. Fernandez had the tire and wheel rim
replaced. In addition, the vehicle required realignment. Claimant sustained a
total loss in the amount of $320.41, however, claimant’s motor vehicle
insurance policy has a deductible feature of $200.00 and any recovery would be
limited to that amount. Sommerville, et aL vs. Div. of Highways, 18 Ct.
Cl. 110 (1991).
The position of respondent was that it was not on notice of the hole in the
center westbound travel lane of 1-64 in South Charleston, Kanawha County.
According to the daily log entries of transportation crew supervisor II Stephen
Wayne Knight, once respondent received notice of the hole later in the night,
it went innnediately to the scene to patch the hole with cold mix asphalt until
the following day when the lane could be closed down and the hole repaired with
hot mix asphalt. Respondent had no prior notice of the hole.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold
respondent liable for road defects of this type, claimant must prove that
respondent had actual or constructive notice of the defect and a reasonable
time to take corrective action. Chapman vs. Dept. of Highways, 16 Ct.
Cl. 103 (1986).
W.Va.] REPORTS
STATE COURT OF CLAIMS 179
In the present claim, the evidence adduced at the March 23, 2000, hearing does
not establish that respondent had notice of the condition in the center
westbound travel lane of 1-64, Kanawha County. The evidence presented by
claimant failed to establish that respondent did not take reasonable steps to
ensure the safety of motorists on 1-64. Consequently, there is insufficient
evidence of negligence upon which to base an award.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JUNE 8, 2000
MICHAEL FREYMAN, SR.
VS.
DIVISION OF HIGHWAYS
(CC-99-249)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when his daughter was
driving his vehicle on 1-81 and she drove over debris that had fallen from the
Rock Cliff Drive Bridge.’ The Rock Cliff Drive Bridge over this portion of 1-81
is maintained by respondent in Berkeley County. The Court is of the opinion to
make an award in this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on May 14, 1999, at
approximately 5:45 p.m. On the evening in question, claimant’s daughter,
Michelle Freyman, along with her five-year old son, were traveling in his 1989
full size Chevrolet pick-up truck in the right lane of 1-81 from Hedgesville to
Martinsburg at a speed of about fifty miles per hour. Ms. Freyman took her
usual route to her place of employment and as she approached the Rock Cliff
Drive Bridge she noticed debris from the bridge in her lane of travel. Ms.
Freyman maneuvered the vehicle from the right lane onto the berm area to avoid
debris on the road surface. When she drove back to the left onto the road
surface, the vehicle went over several different
‘At the April 20, 2000, hearing, the Court amended the styling of the claim to
reflect the fact that Mr. Freyman, Sr., was the sole owner of the vehicle.
180 REPORTS
STATE COURT OF CLAIMS [W.Va.
pieces of debris. The debris caused damage to both tires on the passenger side
of the vehicle and damaged the front of the vehicle. After this incident, three
employees of respondent came upon the scene and assisted Ms. Freyman. In a
letter dated June 16, 1999, the employees acknowledged that at the time of the
incident concrete had fallen onto the roadway and that bridge work had been
conducted by respondent. While claimant sustained a loss in the amount of $858.3
1, he has a deductible feature of $100.00 in his motor vehicle insurance
policy and any recovery would be limited to this amount. Sommerville et al.
vs. Div. of Highways, 18 Ct. Cl. 110 (1991).
The position of respondent was that it did not have notice of the disrepair of
the Rock Cliff Drive Bridge in Berkeley County. While respondent acknowledged
that the concrete on the road surface was from a deteriorated lip on the
bridge, its employees r esponded immediately to the s cene when it h ad notice
o ft he bridge debris. Prior to this incident, respondent maintained that it
had no knowledge of the condition of the bridge.
When respondent fails to exercise reasonable care and diligence in the
maintenance of a bridge, a claimant may be entitled to recover for a sustained
loss. Anderson vs. Div. of Highways, 21 Ct. Cl. 131 (1996).
In the present claim, the evidence adduced at the April 20, 2000, hearing
established that respondent was negligent in its maintenance of the Rock Cliff
Drive Bridge in Berkeley County. The Court is of the opinion that respondent
was aware that work had been on-going on the bridge and it should have been
aware of the dangerous road condition posed by the condition of the bridge.
Consequently, there is sufficient evidence upon which to base an award.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award in this claim.
Award of $100.00.
OPINION ISSUED JUNE 8, 2000
MICHAEL JUSTICE
VS.
DIVISION OF HIGHWAYS
(CC-99-9)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
W.Va.] REPORTS
STATE COURT OF CLAIMS 181
Claimant brought this action for vehicle damage which occurred when his vehicle
was struck by a rock while a friend was driving his vehicle on W.Va. Route 10
from Man towards Logan. W.Va. Route 10 at this location is maintained by
respondent in Logan County. The Court is of the opinion to deny this claim for
the reasons more fully set forth below.
The incident giving rise to this claim occurred on December 8, 1998, at
approximately 5:00 p.m. At dusk on the rainy evening in question, claimant’s
friend, Linda Kaye Adkins, proceeded on W.Va. Route 10 at a speed of about
twenty miles per hour in a twenty-five per hour speed zone in claimant’s 1997
Chevrolet Cavalier, from her place of employment in Man to her residence in
Logan. Ms. Adkins travels this portion of road on a regular basis and was aware
that it was a known rock fall area. As Ms. Adkins operated the vehicle on an
uphill portion of the road close to the hillside, and before what she described
as a sharp “S” shaped curve in the road, the vehicle was suddenly struck on the
right side by a rock that had fallen from the right side of the road.
Afterwards, Ms. Adkins stopped along the road at a safe location and inspected
the vehicle. Fortunately, Ms. Adkins did not sustain a personal injury, but the
right front area of the vehicle sustained damage. Claimant’s daughter, Leigh Aim
Justice, then contacted the Man Police Department regarding the incident and an
officer investigated the incident and filed a police report. The damages
sustained to claimant’s vehicle were estimated in the amount of $754.99, however,
claimant’s motor vehicle insurance policy has a deductible feature of $500.00
and any recovery would be limited to that amount. See Sommervile, et al. vs.
Div. of Highways, 18 Ct. Cl. 110 (1991).
The position of respondent was that it had neither actual nor constructive
notice for this rock fall incident on W.Va. Route 10. According to respondent,
this portion of road is a known rock fall area and is clearly marked by
“falling rock” road signs. Before this incident, respondent denied having any
notice of the condition of W. Va. Route 10.
The Court has consistently held that in claims of this nature, without a
positive showing that respondent had actual or constructive notice of a
dangerous condition, such as falling rocks and rock debris, posing a threat of
injury to property is insufficient to justify an award. Mitchell vs.
Division of Highways, 21 Ct. Cl. 91 (1996); Hammond vs. Division of
Highways, 11 Ct. Cl. 234 (1977). In order to establish liability on behalf
of respondent, the evidence must establish that respondent had notice of the
dangerous condition posing the threat of injury to property and a reasonable
time to take suitable action to protect motorists. Alkire vs. Division of
Highways, 21 Ct. Cl. 179 (1997).
The evidence adduced at the March 23, 2000, hearing failed to establish that
respondent had notice of the road condition and did not take measures to help
assure the safety of the traveling public while traveling on W.Va. Route 10 in
Logan County. In addition, Ms. Adkins knew that this area has a propensity for rock
falls.
182 REPORTS
STATE COURT OF CLAIMS [W.Va.
While the Court is sympathetic to claimant’s plight, the fact remains that
there is insufficient evidence of negligence upon which to base an award.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does hereby deny this claim.
Claim disallowed.
OPINION ISSUED JUNE 8, 2000
KENNETH ANDY KENNEDY DIB/A KENNEDY
AUTO SALES
VS.
DIVISION OF HIGHWAYS
(CC-96-3 73)
and
BETTY WILLIAMS STACY
VS.
DIVISION OF HIGHWAYS
(CC-96-38 1)
S. Douglas Adkins, Attorney at Law, for claimants.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for respondent.
BAKER, JUDGE:
The claimants brought these claims being considered herein to recover for damages
to their respective properties as the alleged result of respondent’s negligent
design and maintenance o ft he drainage s ystem on U .S. R oute 52, in D
elbarton, Mingo County. U.S. Route 52 is a road owned and maintained by
respondent. The Court is of the opinion to make awards to the claimants in
these claims for reasons more fully set forth below. These claims were
consolidated for hearing by the Court.
Both of the claimants own property and reside on the west side of U.S. Route 52
approximately two miles south of Delbarton. At this location, U.S. Route 52 is
a straight stretch of road that traverses in a north-south direction. The
hillside on the east side of U.S. Route 52 slopes to the roadway. Claimants’
properties on the west s ide gradually s lope toward P igeon Creek, which is I
ocated a bout one- hundred-fifty feet from the road surface of U.S. Route 52.
In the past, the road surface of U.S. Route 52 was in a state of disrepair due
to standing water on the road. As a result of the water on the road, there were
several automobile accidents. Consequently, in 1987, respondent corrected the
problem of standing water by creating a tilt in the road surface of U.S. Route
52 at this location to channel water to
W.Va.] REPORTS
STATE COURT OF CLAIMS 183
the west side of the road. In 1993, respondent widened the paved surface when
it engaged a contractor to pave the shoulders of the road.
After these measures had been taken by respondent, claimants allege that they
began to experience excessive water drainage from the east side of U.S. Route
52.
Moreover, across the road about eight
to ten feet south of the Kennedy and Stacy property, a neighbor (identified as
Neil Robertson) residing on the east side of U.S. Route 52 placed a paved
driveway which was twelve by seventy-five feet. This driveway was constructed
by the neighbor without a permit from respondent as required by law. The
driveway exacerbated the water problems being experienced by both of the
claimants at that time, because the neighbor covered a bridge placed by
respondent for water to flow through the ditch line. The drain that he placed
beneath his driveway apparently was inadequate to carry all of the water in the
ditch line so it flowed across the road onto claimants’ properties.
In June 1995, claimant Kenneth Andy Kennedy contacted Governor Caperton’s
office about his drainage problem and he was referred to respondent.
Commissioner Fred VanKirk, in a letter dated July 6, 1995, stated “that the
Division of Highways will do whatever we feel is necessary to improve drainage
patterns as related to our roadway. Plans have been made to install a box and
grate under the driveway which enters onto US 52 across from your property.
This should alleviate the problem of water coming down the driveway out onto 52
and eventually crossing the highway onto your property.” The letter further
advised claimant Kennedy that his building sits in a low area which acts a
natural drainage area. The driveway slopes toward the building and there are no
slopes on the sides of the building so the water is channeled toward the
building. With no gutters or downspouts, all the run off from the roofjust
ponds around the building.
While respondent eventually removed the Robertson driveway, the drainage
structure (“box and grate”) was not installed. Both claimants allege that
respondent’s failure to respond promptly to claimants’ complaints caused the
damages from the water run-off to continue, worsening the problems already
being experienced by claimants. It is the position of claimants that the
failure of the respondent to address the drainage problem is the proximate
cause of the damages sustained to their respective properties.
The Kennedy property has been in the family of claimant Kenneth Andy Kennedy
since the 1920’s. The residence in which claimant makes his home with his wife
was built on fill material in 1957. To the southwest of their residence is a
building seventy five feet from U.S. Route 52 which was constructed by the
Mingo County Economic Opportunity Commission in 1970. This structure has a tin
roof, but does not have gutters or downspouts. The rear of the building is
about ten feet from Pigeon Creek. Until 1986, the Mingo County Economic
Opportunity Commission occupied claimant Kennedy’s building. During this time,
Mr. Kennedy asserted that he had no knowledge of any water problems nor had he
received
184 REPORTS
STATE COURT OF CLAIMS [W.Va.
complaints from the Mingo County Economic Opportunity Commission which used the
building for storage of equipment that required a dry place.
At some time in the early 1990’s, claimant began operating an auto body shop in
the building which is known as Kennedy Auto Sales. He also sells used cars that
he has parked in the lot in front of the building adjacent to U.S. Route 52 and with a driveway which abuts U.S. Route 52. This building has experienced water problems since
1987. Claimant’s wife, Patricia Kennedy, stated that she telephoned
respondent’s main office in Charleston in the spring in the early 1990’s to
describe the water problem and she also telephoned the Mingo County office at
least six to eight times during the 1990’s. Claimant alleges that excessive
water flows from U.S. Route 52 bringing
mud and water into the building. Clean up efforts may take about one-and-a-half
days to remove the mud from the floor after the water recedes. The water has
been as high as six to seven inches in the building.
In an attempt to remedy the problems with the water and mud getting into his
building, Mr. Kennedy first installed a four-inch perforated pipe covered with
gravel on two sides of the building. This action did not remedy the situation
because sand and water filled the pipe so he dug a ditch (described as a
“moat”) about two feet deep along the sides of the building allowing the water
to flow into Pigeon Creek, but sand kept filling in the ditch. Since this
effort also failed effectively to eliminate the water problem, he installed an
eight-inch perforated pipe covered with gravel with a drain box at the front
door which connects to a 12-inch pipe from which the water flows to the creek.
This project, completed in July 1999, provided some relief from the water
problems experienced in the building; however, water and sand still flow onto
the gravel driveway in front of the building which requires constant
maintenance efforts on his part. Mr. Kennedy has tried to make improvements to
his property with a backhoe and gravel in an attempt to repair the damages
caused by the water. The cost of these improvements to his property is
estimated in the amount of $4,700.00. He does not have a homeowner’s insurance
policy that provides coverage for the damages to his property.
Claimant Betty Williams Stacy bought her residence on U.S. Route 52 in 1978. On
the north side of the Stacy residence, which is to the south of the Kennedy
property, there is a twenty-four by eighteen foot, one-and-one-half vehicle
garage with a concrete floor. Water that originates across the road flows onto
claimant’s driveway creating gullies and ridges in the partially paved driveway
and then flows into the garage. Although the Stacy property experienced water
problems prior to 1993, Harvey Stacy, claimant’s husband, testified that these
problems “got tremendously worse” in 1993. When the garage floor started cracking
in 1993, he dug a ditch in front of the garage door in an attempt to divert the
water away from their residence. While the Stacy residence has a gutter and
downspout on the north corner and a corresponding drainage system on the south
corner, the gutter on the north corner of the residence empties water directly
onto the ground.
W.Va.] REPORTS
STATE COURT OF CLAIMS 185
Both claimants offered respondent a right of way to perform any necessary
repairs to alleviate the water problems that they are experiencing. The damage
sustained to Mrs. Stacy’s garage was estimated in the amount of $10,000.00 to
$11,000.00. She does not have a homeowner’s insurance policy that provides
coverage for the damages to her property.
Respondent’s position is that it took immediate corrective measures as soon as
it received notice regarding the drainage problem on U.S. Route 52. Respondent
acknowledged that the road is “super elevated” toward claimants’ property and
that it has always been that way. The paving performed in 1993 did not alter
the elevation of the road. The respondent had the berm paved on each side. It
contends that nothing was done during the project to super-elevate the surface
of the road. This road is designed to channel water flow toward the west side
of the road. At the time of the paving project, claimants’ neighbor’s driveway
was not paved and there were no signs of erosion. Thus, a box and grate were
not installed. However, Senior Designer Phillip Van Daniels explained that when
claimants’ neighbor p aved his driveway, the characteristics of the drainage
system changed and a box and grate became necessary. On two occasions,
claimants’ neighbor tore out the ditch without respondent’s permission, in
order to install a pipe and pave over it. When the driveway was fmally removed
and the ditch was reconstructed, an inlet box was no longer necessary.
Likewise, Senior Engineer Technician Jimmie Messer testified that he was
present at the site on an occasion when water was present and he did not
observe water flowing on claimants’ property. Respondent asserts that both
claimants lack proper drainage systems on their respective properties and this
has exacerbated the water problems which they experience.
The Court has held that respondent has a duty to provide adequate drainage of
surface water, and drainage devices must be maintained in a reasonable state of
repair. Haught vs. Dept. of Highways, 13 Ct. Cl. 237 (1980). In claims
of this nature, the Court will examine whether respondent negligently failed to
protect a claimant’s property from foreseeable damage. Rogers vs. Div. of
Highways, 21 Ct.
Cl. 97 (1996).
In the instant claims, the evidence establishes that respondent failed to
maintain the drainage system on U.S. Route 52 at the location of the c laimants’
properties in a reasonable state of repair to protect these properties from
excessive water flowing in the ditch line on the east side and from the water
flowing on the road surface itself. Respondent failed to take remedial action
when it had adequate notice as evidenced by the letter from Commissioner
VanKirk. The road surface is lower on the west side to provide drainage for
surface water which accumulates on the road surface. This is necessary to
protect the traveling public using U.S. Route 52; however, respondent
also has a duty to protect the adjacent property owners from excess water which
flows from the roadway onto their properties. In the instant claims, respondent
is responsible for casting ground water onto claimants’ property.
186 REPORTS STATE
COURT OF CLAIMS [W.Va.
Respondent knew or should have known that damage to claimants real property
would occur. Respondent should have been more diligent in preventing the
claimants’ neighbor from dismantling respondent’s drainage system on U.S. Route
52. Therefore, the Court is of the opinion that respondent, once having
notice of the situation on U.S. Route 52,
negligently failed to take immediate
and reasonable action to prevent any further damage to claimants’ properties
from excessive water flowing across the road.
Notwithstanding respondent’s negligence, the Court is also of the opinion that
both claimants bear some responsibility for the damages to their properties as
they also were negligent. Neither of the claimants maintained adequate drainage
systems o n t heir r espective p roperties t o de al w ith w ater r un-off from
their o vim structures. Moreover, the claimants failed to establish the actual
amounts of monetary damages which they sustained to their properties. In the
Kennedy claim, claimant K ennedy estimated damages in the a mount o f $4,
700.00 for restoration work done on his driveway and car lot. In the Stacy
claim, Mr. Stacy produced an estimate for damages in the amount of $11,000.00.
The Court is of the opinion that this estimate is suspect and that $7,000.00 is
an amount that the Court deems would be fair and reasonable for replacing the
concrete floor in the garage.
In a comparative negligence jurisdiction, such as West Virginia, the negligence
of a claimant can reduce or bar recovery of a claim. The Court fmds that each
claimant was 49% negligent for the resulting damages to his or her property.
Since the negligence of neither claimant is greater than or equal to the
negligence of respondent, each of the claimants may recover 51% of his or
her loss.
In accordance with the fmdings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does make reduced awards to the
claimants in these claims.
Award of $2,397.00 to claimant Kenneth Andy Kennedy d/b/a Kennedy Auto Sales.
Award of $3,570.00 to claimant Betty Williams Stacy.
OPINION ISSUED JUNE 8, 2000
MARK SCOTT KING
VS.
DIVISION OF HIGHWAYS
(CC-99-59)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
W.Va.J REPORTS
STATE COURT OF CLAIMS 187
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
his vehicle striking a hole while traveling eastbound on U.S. Route 33, near
the town of Mason. U.S. Route 33 at this location is a road maintained by
respondent in Mason County. The Court is of the opinion to make an award in
this claim for the reasons more fully set forth below.
The incidentgivingrise to this claim occurred on January 16, 1999, at
approximately 9:30 to 10:00 p.m. On the cold night in question, claimant
proceeded from the Parkersburg Mall toward his residence in his 1997 Honda
Accord Special Edition on U.S. Route 33 at a speed of about fifty-five miles
per hour. This portion of U.S. Route 33 is a twenty two feet, two lane road
with double yellow lines indicating the center of the road surface and white
lines along the edges of the road surface. As Mr. King drove along the first
priority road, he came upon an area of road where he knew there was a two foot
irregularity in the pavement, which he had struck on a prior occasion. Mr. King
noticed four to five vehicles on the right hand side of the road with their
hazard lights flashing and then he slowed the speed of his vehicle to
thirty-five miles per hour. Confronted by oncoming traffic, Mr. King was forced
to strike the hole in the road surface. The impact burst the vehicle’s tire and
bent the wheel rim. After the incident, claimant telephoned the Mason County
Fire Department regarding the hole in the road surface. Claimant sustained a
loss in the amount of $228.28, for a tire and wheel rim. Since claimant has a
deductible feature of $1,000.00 in his motor vehicle insurance policy, he was
responsible for the entire loss.
The position of respondent was that it did not have notice of the hole on U.S.
Route 33 in Mason County. On the days prior to the incident, respondent’s
employees were engaged in snow and ice removal activities. During this time,
respondent’s employees had no notice of the hole. While respondent acknowledged
that this portion of U.S. Route 33 is notorious for holes, its daily records
indicated that almost one ton of cold mix asphalt was used to repair the hole
on the same night it was given notice of claimant’s incident.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46
S.E.2d 81(1947). In order to hold respondent liable for road defects of this
type, claimant must prove that respondent had actual or constructive notice o f
the defect and a reasonable time to take corrective action. Chapman vs.
Dept. of Highways, 16 Ct. Cl. 103 (1986).
The evidence adduced at the March 23, 2000, hearing established that respondent
had actual notice of the condition on U.S. Route 33 in Mason County. Respondent
was well aware that winter weather conditions contribute to the failure of
patching material in this area and failed to take reasonable measures to assure
the safety of motorists on U.S. Route 33 in Mason County. A Mason County 911
188 REPORTS
STATE COURT OF CLAIMS [W.Va.
Center audio tape of the night in question, adduced by claimant, established
that U.S. Route 33 w as in a state o f disrepair and as a result at least nine
other vehicles sustained damage. Notwithstanding the negligence of respondent,
the Court is also of the opinion that claimant was negligent in his operation
of the vehicle. Claimant was aware of the hole in question and had struck it on
a prior occasion. In a comparative negligence jurisdiction, such as West
Virginia, the negligence of a claimant can reduce or bar recovery of a claim.
Based on the above, the Court fmds that the negligence of claimant was
responsible for one-third of his loss. Since the negligence of claimant is not
greater than or equal to the negligence of respondent, claimant may recover
two-thirds of the loss sustained.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make a reduced award in this
claim.
Award of$152.03.
OPINION ISSUED JUNE 8, 2000
RON MACE AND JOAN P. MACE
VS.
DEPARTMENT OF ADMINISTRATION
AND
DEPARTMENT OF AGRICULTURE
(CC-99- 172)
Pathcia L. Kotchek, Attorney at Law, for claimants.
Joy M. Cavallo, Assistant Attorney General, for respondents.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by counsel for claimants and counsel for respondents, wherein certain
facts and circumstances of the claim were set forth as follows:
1. On October 2, 1995, claimants, as lessors, entered into a three year lease
agreement with respondent Department of Agriculture, the lessee, to provide
office space in the town of Moorefield, Hardy County at a monthly rate in the
amount of $637.50 and a provision to terminate the lease with thirty days
written notice. Respondent Department of Administration was also identified in
the lease agreement. Due to some failure of communication between the
Department of Administration and the Department of Agriculture, the premises
were vacated by the Department of Agriculture in February 1998, but claimants
were not notified of the intent to terminate the lease agreement until April 2,
1998, thus, breaching the lease
W.Va.] REPORTS
STATE COURT OF CLAIMS 189
agreement. Claimants tried but were unable to mitigate their damages by renting
to another tenant, effective March 1, 1998.
2. As a result of the breach of the lease agreement, claimants sustained a loss
of $1,912.50 for unpaid rent for the months of February, March and April of
1998. However, claimants agreed to relinquish and settle this claim for the
amount of$l,01250 which will be allocated as follows:
a. against respondent Department of Administration in the amount of $375.00
representing the loss of rental income for the months of March and April
1998.
b. against respondent Department of Agriculture in the amount of $637.50
representing the unpaid rental income for the month of February 1998.
3. Both Respondents agree that the amount of the damages as put forth by
claimants is fair and reasonable.
The Court has reviewed the facts of this claim as stated in the Stipulation,
and adopts the statement of facts as its own. The Court finds that respondents
breached the lease agreement; that claimants were damaged by this breach; and
that the amount of the damages agreed to by the parities is fair and
reasonable.
Accordingly, the Court is of the opinion to and does make an award in the
amount ofSl,012.50 to claimants.
Award of $375.00 against the Department of Administration.
Award of $637.50 against the Department of Agriculture.
OPINION ISSUED JUNE 8, 2000
MARY ALICE PAYNE
VS.
DIVISION OF HIGHWAYS
(CC-98-3 14)
Claimant appeared pro
se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for personal injuries and property damage
sustained when her vehicle was struck by a mudslide when she traveling
eastbound on Route 83 in Yukon. Route 83 is a road maintained by respondent in
McDowell County. The Court is of the opinion to deny this claim for the reasons
more fully set forth below.
190 REPORTS
STATE COURT OF CLAIMS [W.Va.
The incident giving rise to this claim occurred on May 13, 1998. On the day in
question, claimant was making a return trip from the grocery store in her 1987
vehicle while traveling eastbound on Route 83 in Yukon. Route 83 is two-lane
road, with a road surface width of sixteen to eighteen feet and with guardrail
protecting travelers from the forty-five to fifty foot cliffs on one side of
the road. Earlier in the day, claimant had traveled along the road, and she
noticed people working on the road. As claimant made her return trip from the
store, she was driving uphill and around a curve in the road when suddenly her
vehicle was caught in a mudslide. The impact of the mudslide pushed her vehicle
against the opposite side of the road. Claimant was trapped inside the vehicle.
Another vehicle pulled claimant’s vehicle out of the slide, and claimant’s
cousin contacted the McDowell Ambulance Authority. Claimant sustained personal
injuries, but refused medical assistance and remained on the scene for about
one-half hour. Eventually claimant’s husband drove her to Bluefield Regional
Hospital for treatment.’ According to claimant, after the incident, the
mudslide “just went away.” During claimant’s frequent trips on this road in the
past, she could not recall observing any mudslide incidents in this particular
area. Photographic evidence of the vehicle and of claimant’s personal injuries
were taken the following day. Once the vehicle was brought back to claimant’s
residence, it was considered “totaled” and sold for salvage.
The position of respondent was that it did not have notice of the mudslide on
Route 83 in Yukon. Respondent acknowledged that road work had been done
approximately one to one-and-a- half miles from the scene of claimant’s
incident. According to respondent, there are no records of a mudslide having
occurred occurring in this particular area on the day in question.
The evidence adduced at the October 28, 1999, hearing failed to establish that
respondent had notice that a mudslide was imminent on Route 83 in Yukon. While
the Court is of the opinion that claimant was involved in an incident caused by
a mudslide, that fact alone is insufficient to establish negligence on behalf
of respondent. Consequently, there is insufficient evidence of negligence upon
which to base an award.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
OPINIOW ISSUED JUNE 8, 2000
‘Claimant’s medical bills were paid by Medicaid and a $1,000.00 payment by
her motor vehicle insurance carrier.
W.Va.] REPORTS
STATE COURT OF CLAIMS 191
EUGENE SAVILLE
VS.
DIVISION OF HIGHWAYS
(CC-99-2)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his vehicle
struck a hole when he was traveling in the right eastbound lane of U.S. Route
50, near Romney. U.S. Route 50 at this location is a road maintained by
respondent in Hampshire County. The Court is of the opinion to make an award in
this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on March 30, 1998, at
approximately 11:15 a.m. On the morning in question, claimant was proceeding in
the right eastbound lane of U.S. Route 50 in his 1985 F-250 Ford pick-up three-
quarter ton truck at a speed of about fifty miles per hour. At this location,
U.S. Route 50 has three lanes each of which is twelve feet in width. Two of the
lanes are eastbound and these lanes proceed straight up a mountainous slope.
The posted speed limit is forty-five miles per hour. As Mr. Saville drove his
truck in the right lane up the mountain, he came upon a six to seven inch hole
about the width of a truck tire, with which he was familiar. Since there was a
vehicle in the passing lane beside him, he was forced to drive into the hole
which was near the white edge line indicating the edge of the paved surface of
the road. The impact with the hole damaged the truck’s transfer case. The truck
became inoperable and Mr. Saville drifted his vehicle to the side of the road.
Afterwards, Mr. Saville went to a salvage yard and purchased a transfer case
for $450.00, which he later installed. Since claimant’s truck is insured under
a liability motor vehicle insurance policy only, he was responsible for the
sustained loss.
The position of respondent was that it did not have notice of the hole on U.S.
Route 50 in Hampshire County. According to Highway Administrator III, Olin
Teter, respondent had not received any information regarding an irregularity in
the road surface until December 23, 1998. While Mr. Teter produced photographs
of the road near the location in question that did not show the existence of
the hole, claimant’s photographs established the existence of the hole and that
it had been patched. Respondent did not have any record of the hole being patched.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent
liable for road defects of this type, claimant must prove that respondent had
actual or
192 REPORTS
STATE COURT OF CLAIMS [W.Va.
constructive notice of the defect and a reasonable time to take corrective
action. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).
In the present claim, the evidence adduced at the April 20, 2000, hearing
established that respondent at least had constructive notice of the condition
of the right eastbound lane of U.S. Route 50 in Hampshire County. The Court is
of the opinion that the position and size of the hole in the road surface
establishes that respondent should have known about the defect and should have
repaired it or placed warning signs prior to claimant’s incident. Consequently,
there is sufficient evidence of negligence upon which to base an award.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award in this claim.
Award of $450.00.
OPINION ISSUED JUNE 8, 2000
MICHAEL L. SMITH
VS.
DIVISION OF HIGHWAYS
(CC-99-74)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this a ction for damages to h is vehicle which occurred when
his daughter was driving his vehicle and it struck a hole on Route 622, locally
known as Goff Mountain Road, near Cross Lanes. Route 622 is a road maintained
by respondent in Kanawha County. The Court is of the opinion to deny this claim
for the reasons more fully set forth below.
The incident giving rise to this claim occurred on January 8, 1999, at
approximately 3:00p.m. On the cloudy day in question, claimant’s daughter,
Jessica Michelle Smith, drove his 1998 Z-28 Chevrolet Camaro from Institute
toward Cross Lanes on Route 622. She was proceeding at a speed of about
twenty-five to thirty miles per hour. Route 622 is a two-lane, high priority
road about twenty-two feet wide with a double yellow line indicating the center
of the road surface and white edge lines. Ms. Smith was driving the vehicle on
an uphill slope, and she had traffic in front of and behind the vehicle.
Suddenly, oncoming traffic forced Ms. Smith to maneuver the vehicle toward the
edge of the paved road surface, where she noticed an irregularity in the
pavement. Ms. Smith slowed the speed of the vehicle, but she
W.Va.j REPORTS
STATE COURT OF CLAIMS 193
was unable to prevent the vehicle from striking the irregularity in the
pavement. The incident caused damage to the vehicle’s passenger side rear tire.
Since claimant had a deductible feature of $500.00 in his motor vehicle
insurance policy, he was responsible for the loss estimated by Ms. Smith to be
around $250.00.
The position of respondent was that it did not have notice of an irregularity
in the pavement of Route 622 in Kanawha County on the date of this incident. A
review of respondent’s records substantiated its position. In addition, Highway
Administrator Charles Earl Smith testified that he traveled the road about one
year after Ms. Smith’s incident and he did not observe any irregularity in the
pavement or evidence of patching on the road in the area described as the
accident scene.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent
liable for road defects of this type, claimant must prove that respondent had
actual or constructive notice of the defect and a reasonable time to take
corrective action. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).
In the present claim, the evidence adduced at the May 4, 2000, hearing failed
to establish that respondent had notice of a defective condition on Route 622
or that it failed to assure the safety of motorists on Route 622 in Kanawha
County. While the Court is of the opinion that Ms. Smith was involved in an
incident, that fact alone is insufficient to establish negligence on the part
of respondent. Consequently, there is insufficient evidence of negligence upon
which to base an award.
In accordance with the finding of facts and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JUNE
8, 2000
RICHARD LEON THORNTON
VS.
DIVISION OF HIGHWAYS
(CC-98-347)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
194 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claimant brought this action for vehicle trailer damage which occurred when his
trailer struck a tree when he was traveling on Route 34 in Hurricane, Putnam
County. Route 34 is a road maintained by respondent in Putnam County. The Court
i s of the opinion to deny this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on July 17, 1998, at about 5:00
to 6:00 p .m. 0 n the afternoon in question, claimant wash auling a loaded
twenty-four foot Pace American enclosed car trailer with his 1990 Ford F-250
truck on Sunnybrook Road to drive to a specific location to apply for a new
State inspection sticker. His vehicle trailer is about forty to forty-two feet
long, eight feet high and eight feet wide. As claimant traveled on Sunnybrook
Road to the point where he was within approximately six hundred feet to the
entrance of Route 34, he encountered oncoming traffic and slowed the speed of
his vehicle to less than twenty-five miles per hour. At this location, the road
has a slight downward grade and is nineteen feet wide. Claimant observed a tree
leaning into the roadway about one hundred feet away. As claimant approached
the tree leaning into the road, his trailer was struck by the tree
approximately one foot from the top of the eight foot trailer. Claimant travels
this road regularly, but he had never had any trouble driving by the leaning
tree on previous occasions. The property owner where the tree was located
informed claimant that the tree was in respondent’s right of way. The resulting
damage to claimant’s vehicle trailer was in the amount of $1,565.15. However,
claimant had a deductible feature of $250.00 in his insurance coverage policy
which would limit any recovery to that amount.
The position of respondent was that it did not have actual or constructive
notice of the condition of the tree leaning into the traveled portion of Route
34. Respondent’s right of way in this location is thirty feet, being fifteen
feet on either side of the centerline of the traveled highway. According to
testimony from respondent’s District 1 Crew Leader Gary E. Stanley who
conducted an investigation on Friday, July 7, 1998, after receiving claimant s
complaint, he determined that the tree itself was not in respondent’s right of
way. From the edge of the road to the tree trunk was twelve feet which meant
the tree was about seven to eight feet from the State’s right-of-way. The Crew
Leader also observed that the tree was leaning, and he made plans to remove the
tree the following week. By the following week, however, the tree had been
removed, but not by respondent. According to respondent’s Crew Leader, the
property owner where the tree was located informed him that he had removed the
tree. Respondent had no prior information regarding the condition of the tree
or that it may have posed a danger to the traveling public before receiving
claimant’s complaint.
The Court has held in prior claims that when the evidence establishes that
respondent does not have notice of a hazard, such as a leaning tree, and a
reasonable
W.Va.J REPORTS
STATE COURT OF CLAIMS 195
opportunity to remove it, respondent will not be held liable. Jones v.
Division of Highways, 21 Ct. Cl. 445 (1995).
The evidence adduced at the September 3, 1999, hearing establishes that
respondent had no notice that the tree posed a hazard to the traveling public.
Consequently, there is insufficient evidence of negligence upon which to base
an award.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
OPINION ISSUED JUNE 8, 2000
SEBRINA L. WILSON
VS.
DIVISION OF HIGHWAYS
(CC-97-213)
David G. Hanlon, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by counsel for claimant and counsel for respondent wherein certain facts
and circumstances of the claim were set forth as follows:
1. On May 25, 1995, at approximately 10:00 p.m., as claimant traveled
northbound on 1-77 toward the town of St. Marys in Pleasants County, her
vehicle was struck by a large piece of concrete falling from the underside of
an 1-77 overpass bridge in the town of Mineral Wells in Wood County. The
falling concrete struck the top of claimant’s vehicle, shattering the sun roof
and injuring claimant.
2. For several years prior to the incident, respondent was aware of the
deteriorating condition of this 1-77 overpass bridge in Mineral Wells, Wood
County. Respondent failed to assure the safety of the traveling public by
maintaining the area in question in a reasonable state of repair.
3. As a result of the incident, claimant brought this action to recover damages
in the amount of $100,000.00. However, claimant agreed to settle and relinquish
this claim against respondent for the amount of $25,000.00.
4. Respondent agrees that the amount of damages as put forth by claimant is
fair and reasonable.
196 REPORTS STATE
COURT OF CLAIMS [W.Va.
The Court has reviewed the facts of this claim as stated in the Stipulation,
and adopts the statement of facts as its own. The Court fmds that respondent
was negligent in its maintenance of the 1-77 overpass bridge in Mineral Wells,
Wood County, on the date of claimant’s incident; that the negligence of
respondent was the proximate cause of the injuries s uffered by claimant; and
that the amount of the damages agreed to by the parties is fair and reasonabie.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $25,000.00.
Award of $25,000.00.
OPINION ISSUED JULY19, 2000
TIMOTHY COPLEY
VS.
DIVISION OF HIGHWAYS
(CC-99- 164)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when his vehicle
struck a hole while he was traveling northbound on Route 65, near Naugatuck in
Mingo County. Route 65 at this location is maintained by respondent. The Court
is of the opinion to make an award in this claim for the reasons more fully set
forth below.
The incident giving rise to this claim occurred on March 18, 1999, at
approximately 7:30 p.m. At dusk on the evening in question, Mr. Copley was
traveling northbound on Route 65 toward Kermit in his 1989 Nissan Sentra at a
speed o f a bout forty to forty-five miles p er h our. A t this 1 ocation,
Route 65 is eighteen to twenty feet in width. It is a two-lane, asphalt road
with double yellow lines indicating the center of the road with white lines on
each edge of the pavement. Route 65 is described as being a priority road
subject to heavy coal truck traffic. As Mr. Copley drove the on the wet road,
he was confronted by three oncoming trucks in an area where he was aware of a
hole in the road surface. Mr. Copley tried to maneuver his vehicle to the side
of the road when the vehicle’s right front tire struck a hole one foot in width
by one foot in length in the road on the right side of his lane of travel. The
subsequent impact burst the tire, broke the wheel, and damaged the CV joint.
Afterwards, Mr. Copley contacted respondent’s office regarding the hole
W.Va.j REPORTS
STATE COURT OF CLAIMS 197
and it was patched sometime thereafter. Since Mr. Copley’s vehicle was insured
only under a liability policy, he was responsible for the damage in the amount of
$398.77.’
The position of respondent is that it did not have notice of the hole on Route
65 in Mingo County. According to respondent, once it received notice of the
hole it dispatched employees immediately to repair the hole. Employees patched
the hole and then were involved in snow and ice removal activities in the area.
During this time of the year, snow and ice removal activities are a top
priority and road repair activities are conducted when the time becomes
available. Prior to March 18, 1999, respondent asserts that it did not have
notice of this hole.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold
respondent liable for road defects of this type, claimant must prove that
respondent had actual or constructive notice of the defect and a reasonable
time to take corrective action. Chapman vs. Dept. of Highways, 16 Ct.
Cl. 103 (1986).
In the claim, the evidence established that respondent had at least
constructive if not actual knowledge of the hole on Route 65 in Mingo County.
The Court is of the opinion that the hole in the road surface of Route 65
constituted a hazardous condition and that respondent should have been more
observant of problems on the road since it is a priority road subject to heavy
coal truck traffic. Consequently, there is sufficient evidence of negligence on
the part of respondent by which claimant may recover his sustained loss.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award in this claim.
Award of $398.77.
OPINION iSSUED JULY19, 2000
HIGHLAND CELLULAR, INC.
VS.
DIVISION OF CORRECTIONS
(CC-00-206)
‘After a review of the evidence adduced by Mr. Copley at the June 1, 2000,
hearing, the Court has determined that the amount of damages set forth should
be
reduced by $40.00 because that amount was incurred as a return-core deposit for
the CV joint purchased by Mr. Copley.
198 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claimant appeared pro se.
Joy M. Cavallo, 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 in the amount of $358.03 for providing cellular
telephone service to the Mount Olive Correctional Complex, Fayette County.
Respondent, in its Answer, admits the validity of the claim, but states that
there were insufficient funds in its appropriation for the fiscal year in
question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airicem Sales and Service, et at. vs.
Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED JULY19, 2000
KIMBERLY JONES AND GARY JONES
VS.
DIVISION OF HIGHWAYS
(CC-97-323)
Michael J. Aloi, Attorney at Law, for claimants.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimants and respondent wherein certain facts and circumstances of the
claim were agreed to as follows:
1. On August 22,
1995, claimant Kimberly Jones was walking
down the steps at the residence of Kenneth Cuihane which is located on Church
Street, Grant Town, Marion County. While she was crossing the last step, Ms.
Jones’ foot landed on the upper side of the ditch adjacent to the road. She
fell backwards onto the steps and sustained personal injuries to her ankle and
hip in the fall.
2. At the time of the incident, respondent was at all times responsible for the
maintenance of Church Street. At or about the time of this incident, respondent
W.Va.J REPORTS
STATE COURT OF CLAIMS 199
was in the process of conducting a repaving project on Church Street, which
included digging a ditch below the last step to the road at the Culhane
residence.
3. Respondent failed safely and properly to complete the paving project as well
as having failed to provide warning devices at the location of the ditch for
the public. Thus, respondent bears some of the responsibility for claimant
Kimberly Jones’ injury.
3. A s a result o fthis incident, claimants filed a notice o fclaim in the
amount of $150,000.00. However, claimants agree to settle and relinquish this
claim against respondent for the amount of $2,200.00.
4. Respondent agrees that the amount of damages stipulated to by the
parties is fair and reasonable.
The Court has reviewed the facts of the claim as stated in the Stipulation, and
adopts the statement of facts as its own. The Court finds that respondent was
negligent in its maintenance of Church Street in Grant Town, Marion County, on
the date of claimant’s incident; that the negligence of respondent was a
proximate cause of the personal damages sustained by Ms. Jones; and that the
amount of the damages agreed to by the parties is fair and reasonable.
Accordingly, the Court is of the opinion to and d oes make an award to
claimants in the amount of $2,200.00.
Award of $2,200.00.
OPINION ISSUED JULY 19, 2000
ERVIN LEE PHILLIPS
VS.
REGIONAL JAIL AND CORRECTIONAL
ACILITY AUTHORITY
(CC-00- 179)
Claimant appeared pro Se.
Joy M. Cavallo, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondents Answer.
Claimant, an inmate at the Southwestern Regional Jail, in Holden, Logan County,
seeks $130.00 for a watch that was entrusted to respondent. When claimant
inspected his inventoried and stored personal property items, he discovered
that his
200 REPORTS
STATE COURT OF CLAIMS [W.Va.
watch was missing. Thus far, respondent’s employees have been unable to produce
claimant’s personal property.
In its Answer, respondent admits the validity of the claim and that the amount
is fair and reasonable. The Court is aware that respondent does not have a
fiscal method for paying claims of this nature; therefore, the claim has been
submitted to this Court for determination.
This Court has taken the position in prior claims that if a bailment situation
has been created, respondent is responsible for property of an inmate which is
taken from that inmate and is not produced for return to the inmate.
Accordingly, the Court makes an award to the claimant herein in the amount
of$130.00.
Award of$130.00.
OPINION ISSUED JULY19, 2000
CHARLES SCHRADER AND HAZEL SCHRADER
VS.
DIVISION OF HIGHWAYS
(CC-97-58)
Phillip C. Monroe, Attorney at Law, for claimants.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for respondent.
BAKER, JUDGE:
Claimants brought this action for damage sustained to their real property from
a landslide allegedly
caused by the negligent maintenance of the drainage system on U. S. Route 19. U.
S. Route 19 is a road maintained by respondent in Marion County. The Court is
of the opinion to deny this claim for the reasons more fully set forth below.
In 1964 claimants purchased their residence which is situated approximately
thirty feet below the road surface of U. S. Route 19, near Fairmont. U. S.
Route 19 is a priority road that generally traverses in a north-south
direction, but at this location the road traverses east-west. The West Fork
River, which flows from the west to the east, is located about forty-five feet
below claimants’ residence. The residence was originally built during the
1950’s. In 1971, a bedroom was added to the residence. In 1991, claimants
installed a septic tank behind their residence between the residence and the
West Fork River. A garage, which was built about twenty to twenty-two years
ago, is located on the east side of their residence. After a set of steps in
front of the residence was washed away by water, claimants built a set
W.Va.J REPORTS
STATE COURT OF CLAIMS 201
of concrete steps in front of the house on the east side of the residence. The
steps start at road level and proceed to the bottom corner of the garage. On
the west side of the property, there is an eight by ten foot building that was
constructed about fifteen to eighteen years ago. Also, claimants installed
guardrail in front of their residence after a vehicle being driven by an
intoxicated driver crashed into their residence.
According to claimants’ son, Jeffrey Schrader, a flood occurred in 1985.1 The
West Fork River flooded above its bank to the extent that water was above the
twelve feet difference in elevation from the river level to the foundation of
the residence and flooded the basement of the Schrader’s residence. The flood
did not cause any structural damage to the residence, but flood waters in the
basement caused minor damage.
During the late 1980’s, claimants began to experience considerable water
run-off from U. S. Route 19, Jeffrey Schrader testified that the water appeared
to resemble a “river coming down our front steps,” causing an accumulation of
three to four inches of water in their front yard. After this water run-off
began, claimants began to notice that the road surface was cracking and then it
began sinking in one particular spot to a depth of about six to eight inches.
In 1993, claimants began to notice problems in the basement of their home. The
basement wall on the north side of the house which faces U.S. Route 19 began to
bulge toward the inside of the basement and cracks began to develop across the
whole wall. The residence, which does not have guttering or down spouts, has
had to have major repairs on two separate occasions.
In 1994, claimants determined that the wall on the north side of the residence
facing the road was in a such a state of disrepair that they were required to
rebuild the wall. This repair project took about two months to complete and
cost approximately $10,000.00. T hen in 1996, claimants were forced to
undertake a second major construction project in an attempt to save their home
from being pushed completely off its foundation. To accomplish this project,
claimants’ residence was placed on stilts and all four walls a long with the
foundation were rebuilt. Claimants also had a foundation constructed for the
storage building located to the west of the residence. This project took about
three months to complete at cost of approximately $33,000.00.
Claimants contend that during the time beginning in 1989 or 1990 when the
damage to their residence was occurring, they made telephone calls to
respondent, wrote letters, and personally contacted respondent on several
occasions, but respondent did not take corrective measures until 1996. Jeffrey
Schrader testified
‘The Court takes official notice of the fact that in 1985 heavy rainfall
produced tremendous flooding in the area in question.
202 REPORTS STATE
COURT OF CLAIMS [WVa.
that the drainage system on the opposite side of U. S. Route 19 does not
function properly and he personally noticed water ponding on both sides of the
road in the summer of 1998. After the retaining wall was constructed by
respondent in 1996, Mr. Schrader dug a small drainage ditch on his property.
This drainage ditch, about thirty feet from the residence, provides a path for
the water to flow from the road into t he W est Fork River. Claimants are
continuing to experience cracks in the basement on the west wall of their
residence.
Along U. S. Route 19, across the road from the Schrader residence on the north
side, there is a ditch from which the water flows into a culvert beneath the
surface of the road. This culvert continues beneath claimants’ driveway for
one- hundred fifty to two hundred feet. Then the culvert and drain proceed down
to the river bank. The ditch and culverts were installed by a contractor at the
direction of respondent. In accordance with the terms of a 1996 contract with
respondent, the contractor on the projects was required to clean the culverts
on the road to alleviate a standing water problem. Claimants contend that this
drain has been the source of the problems which have occurred to their
residence.
The position of respondent is that it has not been negligent in the maintenance
of the ditch line on U. S. Route 19. In 1991, the road was determined to be in
a state of disrepair. When respondent discovered the condition of its roadway,
it placed hot patch on the road surface. In! 996, the road was repaved and
respondent installed a retaining wall. The retaining wall consists of a whaler
across the top of the frame with lagging between vertical piles which are
anchored into the rock beneath the ground level about twenty-five feet.2
According to Marion County Crew Chief, Howard Swidler, the culverts are checked
when necessary and these culverts were checked after 1996 and appeared to be
“wide open, clean as a whistle.” However, Mr. Swidler admitted that he did not
personally check the culverts because he did n ot b elieve there was a problem.
Bo th Mr. Swidler and M anon C ounty Foreman, Bill Ray Lane, testified that they
were aware of flooding problems in the area that were caused by the river about
one mile farther along the road. Bo th testified that the river, on occasion,
flooded and required the road to be closed to the west of claimants’ property.
Dr. Lyle K. Moulton, claimant’s geotechnical expert in soils and foundations,
examined claimants’ property on four occasions from November 1997 - February 1999. It is his opinion that respondent has
not responded properly to the cause of the landslide which affects not only
claimants’ property but also U.S. Route 19. Dr. Moulton testified that the
particular slide involved in this claim probably has existed since the late
1980’s, but he was unable to identifS’ what
2 “Lagging”
is material, usually timber or steel, that is placed between or behind the
flanges of the piles in order to hold material that is secured.
W.Va.J REPORTS
STATE COURT OF CLAIMS 203
originally caused the landslide. He is of the opinion that this slide is
progressive in nature, meaning that it begins at the top above the road and is
progressing down the slope toward the West Fork River with claimants’ property
between the road and the river. When respondent c onstructed the r etaining
wall in 1996, it a ddressed the landslide only as far as U.S. Route 19 is
concerned. There is now a crack in the ground in front of the retaining wall
which is approximately one and a half inches wide and twelve feet long. This
crack proceeds through the property to the south of the retaining wall. In his
opinion this is evidence of the slip plane where the residual sliding is taking
place all the way to the river. Dr. Moulton suspects that water is flowing
horizontally under the roadway, from the side farthest away from claimants
residence from an undetermined s ource t oward t heir p roperty, r emoving g
ranular material beneath the surface of the road thus causing the road to fall
and collapse. He noted that the road is giving way and must be patched with
asphalt where it is sinking. The timber lagging does not go all the way down,
so rock used behind the wall on one side works its way out from under the
lagging on the top. The fill material between the road and the retaining wall
is falling down the slope at the top of claimants’ property. Dr. Moulton is of
the opinion that respondent should have anticipated that this landslide would
continue to cause problems farther down the slope affecting the stability of
claimants’ property.
Further, Dr. Moulton testified that the landslide area was aggravated by
respondent’s road work. The continued resurfacing of the pavement added a
substantial thickness of material, which has a substantially higher unit weight
than the soil itself. The existing limiting equilibrium system was aggravated
by respondent’s maintenance of the road when it added more weight to the top of
the slope by resurfacing the roadway, which caused further movement in the
slope. A stability analysis performed by Dr. Moulton indicates that this
situation took place over such a long period of time that there was sufficient
movement in the slope so that the residual strength of the soil was mobilized.3
Since the weight of the road probably exceeded the peak strength, Dr. Moulton
believes that the analysis shifted
A “stability analysis,” also known as a “Bishop analysis,” is a computer
program that tries to determine the critical center circle that would produce
the
lowest factor of safety, which would be indicated by a value of “1 .“ This process is done by repeating the analysis many
times, moving the center around and calculating the factor of safety for any
circle through a particular point. The computer program keeps resolving the
problem until it finds the lowest factor of safety, which is the
minimum factor of safety for the particular analysis. Eventually ths program
establishes where a landslide is occurring.
204 REPORTS STATE
COURT OF CLAIMS [W.Va.
to residual strength.’ Dr. Moulton believed that data from 1998 to February
1999 establish that the slide begins in the middle of U. S. Route 19 and
proceeds to below the toe of the slip which is in the West Fork River.
Additionally, Dr. Moulton was of the opinion that traffic proceeding over the
road was another significant factor affecting the landslide.
Dr. Moulton rejected Dr. George A. Hall’s , a
geotechnical engineer employed by respondent, expert opinion that the landslide
is a retrogressive slide and began at the toe of the slope. Dr. Moulton asserts
that his observations of the river did not indicate that the landslide starts
from the bottom of the slope, rather it began at the top of the slope above the
road. During his on site visits to the Schraders’ property, Dr. Moulton
observed cracks in claimants’ residence proceeding down the slope. The basement
wall has moved outward, but there is not much movement in the vertical face of
the south wall. While the cracks on the residence appeared before the tension
cracks, Dr. Moulton believed that the residence’s foundation, during
construction, may have been the cause. Except for the tension cracks at the top
of the road, there were no other scarps or clear signs of a step-wise failure.
If the I andslide is a retrogressive slide, Dr. Moulton is of the opinion that
it would have affected claimants’ residence before affecting the road. However,
Dr. Moulton indicated that the road, not the Schrader residence, was affected.
Further, Dr. Moulton asserts that Dr. Halls failure to depict the river level
explained the destabilizing effect obtained by Dr. Hall’s stability analysis.
All of the factors considered by Dr. Moulton led him to the conclusion that
there was a progressive slide beginning at the road and moving toward the river
bank. As this slide moves, it is causing the damages to claimants’ property and
residence.
Dr. Hall is of the opinion that the landslide which is causing the damage to
claimants’ property and to respondent’s road (U.S. Route 19) begins at the
bottom of the slope. According to Dr. Hall, this slide apparently started in
the mid- 1980’s and moved its way up the slope through claimants’ property to
U.S Route 19. This particular slide is thus retrogressive in nature rather than
progressive, i.e., the slide is moving up the slope rather than down the
slope as is the usual scenario for slides. Dr. Hall asserts that Dr. Moulton
admits that the peak strength of the soil would have existed before there was a
landslide at that location. According to Dr. Hall, this admission supports his
theory that the only place for a failure to occur was at the bottom of the
slope. Using a stability analysis utilizing residual strength, Dr. Hall
observed that there was no failure once the slip plane formed all the way to
the road.
“Peak strength” is when the soil is loaded up, there is a stress strain
response where the shear stress develops to a certain peak level. As the
deformation continues it levels out, which leave the “residual strength,” which
can be
substantially below the peak strength.
W.Va.] REPORTS
STATE COURT OF CLAIMS 205
There was a lot of water pressure from the 1985 flood which would have saturated
that slope. Dr. Hall calculated the water level of the river to be twenty feet
higher than the water level was prior to the flood. Dr. Hall opined that the
water pressure and velocity from the higher water level would have been
sufficient to cause ground erosion in the river bank. With the erosion and
saturation of the soil in the lower part of the slope, when the river went back
down a failure in the lower part of the slope was initiated. This condition,
which eventually created a scarp, was not a total failure but it reached peak
strength and probably exceeded it slightly, which allowed that material to move
and remove support from the above material. At the time the piling was
installed for the retaining wall, the water table was almost at the ground
surface. Dr. Hall explained that additional water is coming from a previous
mine, a coal seam or some typical stratum that puts water into the ground,
which is a natural condition. The septic tank, added by claimants to their
property in 1991, further saturated the soil with approximately
one-hundred-fifty gallons of water per day. At this point, the slippery
clay-silt soil at the toe of the slope became lubricated which led to the
retrogressive failure and the slide which eventually moved up toward the road.
Likewise, Dr. Hall observed a current residual failure in the slope, which he
believes substantiates his opinion that this is a retrogressive slide with the
failure starting at the bottom of the slope. Dr. Hall further testified that he
did not include the river in the stability analysis because that is where the
water level was at the time of the investigation.
Dr. Hall testified that an important difference between his and Dr. Moulton’s
expert opinions regards a scarp on the Schrader property. Dr. Moulton believes
a scarp is a necessary sign of a retrogressive slide, while Dr. Hall believes
that a scarp is not a necessary sign for a retrogressive slide. According to
Dr. Hall, when the soil b elow pulls a way, there is some tension and the soil
c an expand. Cracks and deformations can develop in the soil. In the bottom
portion of the slip, the material is being pushed and compressed. If material
at the bottom moves and the support is removed at the bottom, then the slip can
move further up the slope. Then, when there is a crack above, this moves
slightly down the slope, removing support from material further up the slope
and the landslide continues to progress further up slope with each step,
creating what Dr. Hall described as a “domino effect.” If pressure is reduced,
resistance is reduced for the next block of material, and the effect continues.
Thus, a scarp is not necessary and is a matter of pressure between the
different pieces of the eventual slide. He provided evidence of this opinion in
photographs of the ground surface on the south side of claimant’s property near
the West Fork River which revealed small cracks in the soil.
Additionally, Dr. Hall disagrees with Dr. Moulton that the patching placed by
respondent on U.S. Route 19 aggravated the landslide. Dr. Hall is of the
opinion that the pavement irregularities developed after the cracks formed
south of the retaining wall creating a material void and c ausing the material
from behind the
206 REPORTS
STATE COURT OF CLAIMS [W.Va.
piling to fall through the timber, thus pulling soil from beneath the road
surface and causing the pavement to sink. Accordingly, it is his opinion that a
retrogressive slide beginning below claimants’ residence at the West Fork River
is the proximate cause of the damage that has occurred and it is the cause of
the continuing damage to claimants’ residence and property.
The Court has held that respondent has a duty to provide adequate drainage of
surface water, and drainage devices must be maintained in a reasonable state of
repair. Haught vs. Dept. of Highways, 13 Ct. Cl. 237 (1980). In claims
of this nature, the Court will examine whether respondent negligently failed to
protect a claimant’s property from foreseeable damage. Rogers vs. Div. of
Highways, 21 Ct. Cl. 97 (1996). In the claim of Mount v. DOH, Opinion
issued January 28, 2000, this Court held that respondent was responsible for a
slide occurring on claimant’s property when it continually placed asphalt on
the road above claimant’s property without regard to the effect of the
additional weight on the soil beneath the road surface. Although the slide was
progressing from above the road, the weight of the road caused the slide to
progress further below the road, causing damage to claimant’s property.
Maintenance of the drainage ditch adjacent to the road allowed water to
saturate the soil thus providing a slip plane for the slide. The claim herein
presents a case of first impression for this Court as one oft he experts is of
the opinion that the proximate cause of the damage to claimants’ property is
the result of a retrogressive slide. This Court has not had a claim of that
nature prior to the instant claim. However, after due consideration of the
testimony of both experts, the Court has reached the conclusion that the
evidence herein does make a case for a retrogressive slide rather than a
progressive slide. The fact that there is evidence of cracking in the soil at
and near the West Fork River; that the south basement wall of the house is
beginning to fail again; the slope is elongating as the toe of the landslide is
moving faster than the head of the landslide; and that there is evidence of the
soil cracking at the south edge of the retaining wall all seem to the Court to
substantiate the theory put forth by Dr. George Hall that this is in fact a
retrogressive slide. It is an unusual phenomenon but the Court is of the
opinion that Dr. Hall is correct in his analysis of the situation herein.
Further, the Court is of the opinion that respondent, once on notice of the
situation on U. S. Route 19, took immediate and reasonable action to prevent
any further drainage onto claimants’ property from the landslide and excess
water flowing across the road onto their property. The Court fmds that the
terrain in this area of U. S. Route 19 is typical of many areas in West
Virginia which are subject to landslides. In the instant claim, claimants have
failed to established that respondent maintained U. S. Route 19, in Marion
County, in a negligent manner. While the Court is sympathetic to the situation
of claimants, the fact remains that there are many factors which have brought
about this particular landslide problem affecting their property, including the
unusually high water in 1985, the natural drainage area
W.Va.J REPORTS
STATE COURT OF CLAIMS 207
and the location of the residence. Consequently, there is insufficient evidence
of negligence on the part of respondent upon which to base an award.
In accordance with the fmding of facts and conclusions of law stated herein above,
the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JULY19, 2000
WILLIAM A. SCHREYER
VS.
DIVISION OF MOTOR VEHICLES
(CC-00- 165)
Claimant appeared pro Se.
Joy M. Cavallo, Assistant Attorney
General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondents Answer.
On December 4, 1999, Mr. Schreyer was traveling in his vehicle on Route 88,
near West Liberty, Ohio County, when his vehicle was pulled over by a member of
the Ohio County Sheriff’s Department. Upon learning that Mr. Schreyer’s
driver’s licence had been revoked by respondent, the Deputy Sheriff arrested
him and had his vehicle towed. Apparently, respondent had failed to mail a
letter of notification of revocation of driver’s licence with sufficient
postage to Mr. Schreyer, and it was returned subsequently to respondent’s
office. Claimant seeks reimbursement for the towing bill of $75.00 which he
incurred as a result of the incident.
In its Answer, respondent admits the validity of the claim and that the amount
is fair and reasonable. The Court is aware that respondent does not have a
fiscal method to reimburse claimant for a loss such as that experienced by
claimant; therefore, the claim has been submitted to this Court for
determination.
The Court, having reviewed the facts and circumstances in this claim, has
determined that claimant is entitled to a recovery for his sustained loss.
Accordingly, the Court makes an award to claimant in the amount of
$75.00.
Award of $75.00.
208 REPORTS
STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED JULY19, 2000
TIMOTHY J. TAUCHER
VS.
DEPARTMENT OF PUBLIC SAFETY
(CC-00-5 1)
Claimant appeared pro Se.
Joy M. Cavallo, Assistant Attorney
General, for respondent.
PER CURIAM:
Claimant, a member of the West Virginia State Police assigned to the Bureau of
Criminal Investigation in Berkeley County, brought this claim for reimbursement
of fmancial contributions which were deducted in error from his salary for
deposit into the Department of Public Safety Retirement Voluntary Pledge Fund.
The Department of Public Safety Retirement Voluntary Pledge Fund is not a
statutory fund established by the West Virginia Legislature. The Court is of
the opinion to deny this claim for the reasons more fully set forth below.
On September 12, 1994, claimant enlisted in the West Virginia State Police as a
cadet. The following day, claimant was presented by respondent with a contract
for the Department of Public Safety Retirement Voluntary Pledge Fund
(hereinafter referred to as “the Fund”).1 Claimant made an election in
anticipation of his retirement to decline the opportunity to make contributions
to the Fund. However, claimant signed the contract, naming his father as
beneficiary, but he wrote the word
1. The Department of Public Safety Retirement Voluntary Pledge Fund is a fund
established by the West Virginia State Police in about 1963 Members of the
State Police who join the Fund voluntarily sign a contract to pay the sum of
$10.00 to each participant of the Fund at retirement. The Fund does not have a
tax identification or any other such number. According to paragraph 7 of the
Fund contract, “The Accounting Office under the supervision of the Superintendent
shall keep a proper and accurate account to all receipts and expenditures.”
Pursuant to paragraph 4 of the contract, “[C]ommanding Officers are authorized
to make collections from the contributing member or civilian employees and
forward them to the Department Accounting Office. Commanding Officers will be
furnished the names of all contributing members or civilian employees.”
Paragraph 8 of the contract states:
“Arrangements will be made with the management of the depository whereby the
signature of any two (2) of Department Headquarters Senior Staff, the
Superintendent, Lieutenant Colonel or Major(s) shall be honored on checks for
withdrawal of said Retirement Voluntary Pledge Fund;”
W.Va.] REPORTS
STATE COURT OF CLAIMS 209
“NO” by his signature. The contract was then returned to respondent.
Thereafter, claimant did not make any contributions to the Fund) In 1996, while
assigned to the detachment in Charles Town, claimant was presented with an
itemized form of the insurance and expenditures which he elected as a cadet.
Listed on the form was the Fund deduction in the amount of $10.00 per month and
his father as beneficiary. Claimant signed that form without realizing the
error on the form. In September 1998, respondent began making deductions from claimant’s
salary of $10.00 for deposit in the Fund, which deductions were printed on his
pay stub each pay period. Claimant discovered this oversight in January of
1999, filed a grievance through his department, and contacted the accounting
office. In a letter dated January 3, 2000, from the Chief of Administrative
Services, Lieutenant Colonel J. S. Powers, the erroneous entry was acknowledged
and the fact that contributions had been deducted inadvertently from claimant’s
salary, and that such deductions had ceased. Specifically, the letter stated:
[II am familiar with the time period during which this transpired, and have no
hesitation in telling you that it originated with an employee whose performance
was less than acceptable.
I have discussed this issue with the Department Comptroller and the
Superintendent, and our first inclination was, of course, to reflmd these
erroneous deductions to you. Unfortunately, the Pledge Fund is not a ‘State’ account. Funds flowing into the fund immediately flow
right back out as they are paid to members of the fund who have retired. Since
there is never any surplus of funds in this account, we have no means of making
a refund, and to make a refund from any other account which the Department has
access to would be illegal per Se.
Respondent asserts that the Fund is not a statutorily recognized fund
authorized by the Legislature; therefore it is not a “state agency” within the
meaning of West Virginia Code § 14-2-3.
Accordingly, this Court does not have jurisdiction
2. According to paragraph 5 of the
fund contract, “in the event any member fails to contribute, such member
automatically eliminates himself from participating in the Retirement Voluntary
Pledge Fund.”
210 REPORTS
STATE COURT OF CLAIMS [W.Va.
over this claim.1 Respondent also asserts that when the Auditor’s office
mistakenly approved the financial contribution deductions from claimant’s
salary, it acted outside the scope of its authority. Moreover, the claimant may
have been negligent when he affixed his signature to the document referred to
as the Fund contract as well as the 1996 written itemization form and then
failed to observe the deduction printed clearly on his pay stub each pay
period. Respondent further takes the position that the Fund would be unjustly
enriched if revenue from the State Treasury is used to reimburse claimant.
In respondent’s Motion to Substitute Respondent, filed May 26, 2000, respondent
argues in the alternative that this Court may have jurisdiction over the Fund
because the Fund has been given all of the indicia of being a State
agency by its existence and operation, even though the Fund does not meet the
defmition of “State Agency” as outlined in W.Va. Code § 14-2-3. Respondent urges the Court to find the Fund to be a State
Agency based upon the analysis articulated by the West Virginia Supreme Court
in Blower vs. W Va. Educ. Broadcasting Auth.4 See Id., 182 W.Va.
528; 389 S.E.2d 739 (1990). The Court does not agree with this interpretation
of the West Virginia Code and case law.
In the present claim, the Court is of the opinion that the Fund is not a “State
Agency” as defined by the West Virginia Code. The Fund, which was established
by respondent as a separate entity, does not have a legislative framework and
it does not receive State funds for any purpose. Therefore, although the
fmancial contributions from claimant’s salary were deposited with the Fund,
this Court is without jurisdiction in this matter. Further, the Court is of the
opinion that it i s w ithout jurisdiction to make an award against the Fund or
to issue any order requiring reimbursement from the Fund itself.
3. In part, the West Virginia Court of Claims has jurisdiction over claims
against the State or any of its agencies, which in equity and good conscience
should be paid. See W.Va Code §
14-2-13(1). Specifically, W.Va. Code § 14-2-3 defmes “State Agency” as “a state department, board, commission,
institution, or other administrative agency of state government: Provided, that
a ‘state agency’ shall not be considered to include county courts, county
boards of education, municipalities, or any other political or local
subdivision of this State regardless of any state aid that might be provided.”
In syllabus point 1 of Blower, the West Virginia Supreme Court
stated: “In determining whether a particular organization is a state agency, we
will examine its legislative framework. In particular, we look to see if its
powers are substantially created by the legislature and whether its governing
board’s composition is prescribed by the legislature. Other significant factors
are whether the organization can operate on a statewide basis, whether it is
fmancially dependent on public funds, and whether it is required to deposit its
funds in the state treasury.”
W.Va.] REPORTS STATE
COURT OF CLAIMS 211
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JULY19, 2000
TEAYS RIVER CONSTRUCTION COMPANY
VS.
DIVISION OF LABOR
(CC-00- 177)
Claimant appeared pro Se.
Joy M. Cavallo, Assistant Attorney General, for respondent.
PER CURIAM:
This c laim w as s ubmitted for decision based upon the allegations in the
Notice of Claim and respondent’s Answer.
Claimant seeks payment in the amount of $6,205.04 for electrical services
rendered at the scalehouse building of respondent’s weights and measures
section in St. Albans, Kanawha County. Respondent, in its Answer, admits the
validity of the claim, but states that there were insufficient funds in its
appropriation for the fiscal year in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem
Sales and Service, et at. vs.
Dept. of Mental Health, 8 Ct. Cl. 180
(1971).
Claim disallowed.
OPINION ISSUED JULY19, 2000
UNIVERSITY OF GEORGIA RESEARCH
FOUNDATION, INC.
VS.
DIVISION OF NATURAL RESOURCES
(CC-00- 109)
Claimant appeared pro Se.
212
REPORTS STATE COURT OF CLAIMS [W.Va.
Daynus Jividen, Senior Assistant Attorney General, for respondent.
PER CURIAM:
This c laim was s ubmitted for de cision b ased upon the a llegations in the
Notice of Claim and respondent’s Answer.
Claimant seeks $3,030.00 for an annual contractual obligation to study and
examine wildlife for health conditions and/or causes of mortality for
respondent. The invoice for the third quarter of the 1999-2000 fiscal year was
not received by the Wildlife Resources Section; therefore, the documentation
for these services was not processed for payment within the appropriate fiscal
year; and claimant has not been paid. In its Answer, respondent admits the
validity of the claim as well as the amount, and states that there were
sufficient finds expired in the appropriate fiscal year from which the invoice
could have been paid.
Accordingly, the Court makes an award to claimant in the amount of
$3,030.00.
Award of $3,030.00.
OPINION ISSUED AUGUST24, 2000
KENNETH L. BAKER
VS.
DIVISION OF HIGHWAYS
(CC-99-346)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the
claim were agreed to as follows:
1. On July 19, 1999, claimant was traveling in his vehicle on Waterloo Road
near Leon, Mason County, when his vehicle struck a washed out portion of the
benn, causing damage to his vehicle.
2. Respondent is responsible for the maintenance of Waterloo Road in Mason
County.
3. Respondent was aware that the berm was in a state of disrepair and failed to
provide warning devices at the location of the hole for the traveling public.
W.Va.] REPORTS
STATE COURT OF CLAIMS 213
4. As a result of this incident, claimant’s vehicle sustained damage in the
amount of $3 54.30.
5. Respondent agrees that the amount of damages as put forth by the
claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Waterloo Road in Mason County on the date of
claimant’s incident; that the negligence of respondent was the proximate cause
of the damages sustained to claimant’s vehicle; and that the amount of the
damages agreed to by the parties is fair and reasonable. Thus, claimant may
make a recovery for his sustained loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $354.30.
Award of $354.30.
OPINiON ISSUED AUGUST24, 2000
DON K. BALL
VS.
DIVISION OF HIGHWAYS
(CC-99-320)
Bradley H. Layne, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the
claim were agreed to as follows:
1. On April 6, 1999, claimant was traveling eastbound on U.S. Route 33, near Letart
in Mason County, when a rock fell from the hillside beside the road, striking
claimant’s vehicle, causing claimant to lose control whereupon he drove into
the ditch line.
2. Respondent is responsible for the maintenance of U.S. Route 33 in Mason County.
3. Respondent was aware that the area in question was in a known rock fall area
and failed to provide warning devices at this location for the traveling
public.
4. As a result of this incident, claimant’s vehicle sustained damage in the
amount of $7,513.24. However, claimant has agreed to settle and relinquish this
claim for the amount of $5,000.00.
214 REPORTS STATE
COURT OF CLAIMS [W.Va.
5. Respondent agrees that the amount of damages as put forth by the
claimant is fair and reasonable.
The Court has reviewed the facts of the claim as stated in the Stipulation, and
adopts the statement of facts as its own. The Court finds that respondent was
negligent in its maintenance of U.S. Route 33 in Mason County on the date of
claimant’s incident; that the negligence of respondent was the proximate cause
of the damages sustained to claimant’s vehicle; and that the amount of the
damages agreed to by the parties is fair and reasonable. Thus, claimant may
make a recovery for his sustained loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $5,000.00.
Award of $5,000.00.
OPINION ISSUED AUGUST24, 2000
PATRICIA A.
HUGHART AND DAVID SAMUEL HUGHART
VS.
HIGHER EDUCATION POLICY COMMISSION
CC-00- 137)
Claimant appeared pro Se.
Joy M. Cavallo, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was s ubmitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimants seeks $2,327.00 for personal property damage as a result of a hot
water valve bursting in claimant, David Samuel Hughart’s, dormitory room at
Arnold Hall on the West Virginia University, Morgantown campus. In its Answer,
respondent admits the validity of the claim and that the amount is fair and
reasonable. The Court is aware that respondent does not have a fiscal method
for paying claims of this nature; therefore, the claim has been submitted to
this Court for determination.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $2,327.00.
Award of $2,327.00.
W.Va.J REPORTS
STATE COURT OF CLAIMS 215
OPINION ISSUED AUGUST24, 2000
HOWARD L. KEYSER
VS.
DIVISION OF HIGHWAYS
(CC-99-233)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when his vehicle’s
windshield was struck by loose gravel when he was traveling on W.Va. Route 62
at Clifton between Point Pleasant and New Haven. W.Va. Route 62 at this location
is a road maintained by respondent in Mason County. The Court is of the opinion
to deny this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on May 24, 1999, at
approximately 9:30 p.m. On the night in question, claimant was traveling on
W.Va. Route 62 in his 1998 Mazda 626 at a speed of about fifty to sixty miles
per hour with the aid of the vehicle’s headlights. Mr. Keyser frequently
travels this portion of W.Va. Route 62. At this location, WVa. Route 62 is
two-lane, black top road with double yellow lines indicating the center of the
road surface and white lines indicating the edges of the road surface. Crushed
class 1 limestone gravel, about one-half to one and one-half inches in size, is
placed along the berm of the road surface. As Mr. Keyser drove the vehicle
along the road, a vehicle about four to five car lengths away propelled a piece
of limestone gravel on the road surface into the air which struck his vehicle’s
windshield, impacting near the State inspection sticker. The subsequent impact
cracked the windshield and the crack eventually split to the other side of the
windshield by the following morning. According to Mr. Keyser, respondent is
negligent in its placement of limestone gravel on the berms of State roadways b
ecause g ravel w ill g et o nto the r oad s urface a nd is t hen p ropelled b y
vehicles. As a result of this incident, his vehicle sustained damage in the
amount of $274.58. Mr. Keyser asserts that his comprehensive motor vehicle
insurance policy did not cover this incident. The Court requested an abstract
of Mr. Keyser’s motor vehicle insurance policy in effect at the time of the
incident. As of the date of this opinion, Mr. Keyser has failed to provide the
Court with his insurance abstract.’
‘In past claims, failure to tender an insurance abstract requested buy the
Court has been grounds for dismissal of a claim. See Phillips vs. Division
of
Highways, (CC-97-87) opinion issued April 15, 1998.
216 REPORTS STATE
COURT OF CLAIMS [W.Va.
The position of respondent was that it did not have notice that the limestone
gravel caused any hazard to the traveling public on W.Va. Route 62. According
to H. Ross Roush, Crew Supervisor for respondent in Mason County, fifty percent of roads in West Virginia have limestone gravel
along the berms. At this location, the road surface of W.Va. was last paved in
1996 or 1997. Mr. Roush asserts that he seldom receives complaints that gravel
creates any problems for the traveling public. While Mr. Roush acknowledged
that limestone gravel can and does get onto the road surface, he was unaware of
any complaints that any broken windshields may have resulted from such loose
gravel being thrown onto vehicles.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent liable
for road defects of this type, claimant must prove that respondent had actual
or constructive notice oft he de fect and a reasonable time to t ake c
orrective action. Chapman vs. Dept. of
Highways, 16 Ct. Cl. 103 (1986).
In the present claim, the evidence failed to establish that respondent had
notice of a hazardous condition on W.Va. Route 62. While the Court is
sympathetic to claimant’s plight, the fact that loose gravel does get onto the
road surface is insufficient to constitute negligence on the part of
respondent. Respondent cannot be expected to construct every berm in this State
in such a manner as to prevent loose gravel from getting onto a road surface.
Consequently, there is insufficient evidence of negligence on which to base an
award.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINiON ISS UED AUGUST24, 2000
MICKEY D. MAHONE, SR.
VS.
DIVISION OF HIGHWAYS
(CC-98-63)
Claimant appeared pro Se.
Andrew F. Tarr & Xueyan Zhang,
Attorneys at Law, for respondent.
PER CURIAM:
Claimant brought this action for damages sustained to his personal property due
to the alleged negligent installation of the Brent Belcher Bridge on County
Route
W.Va.} REPORTS
STATE COURT OF CLAIMS 217
3/23, locally known as Stowers Road, which caused the Middle Fork of the Mud
River to flood in Griffithsville.’ At this location, County Route 3/23 is
maintained by respondent in Lincoin County. The Court is of the opinion to make
an award in this claim for the reasons more fully set forth below.
In 1995, respondent constructed the Brent Belcher Bridge and embankment on
County Route 3/23 in order to replace a bridge about fifteen-hundred feet
upstream from the location in question. A separate five foot wide foot-bridge,
which was forty to fifty feet long, and just upstream from the location of the
Brent Beicher Bridge, was removed in order to construct the Brent Beicher
Bridge. At this location, County Route 3/23 traverses in an east-west direction
and crosses the Middle Fork of the Mud River which flows in a southerly
direction. Respondent chose this valley location because it had a better
roadway approach than the site fifteen hundred feet upstream. The beams of the
seventy foot precast concrete box bridge were implanted thirty-three inches
into the ground. The road surface portion of the bridge has an asphalt overlay
and guardrail installed along each side of the bridge. Wing walls were not
present for the foot-bridge, but were constructed for the Brent Belcher Bridge.
The bottom of the bridge is approximately twelve feet above the river level,
which is the same height as the previous foot-bridge.
Before construction, respondent completed a hydraulic analysis and studied the
river as well as rainfall in the area. According to respondent’s bridge design
engineer Gregory Lee Surber, the bridge was designed and constructed with a low
elevation in the approach road, so if water flowed to the bridge, it would flow
through the low place in the road and subsequent damage from water flow would
be reduced. Mr. Surber was not prepared to testifS’ in detail about
specifications and hydraulic studies.
At the hearing, Mr. Mahone testified that the embankment of W.Va. Route 3, p
roceeding n orth, is two and o ne-half feet h igher in e levation than h is
former property. In addition, Mr. Mahone asserts that the guardrail on the
bridge collects debris and adds an extra two and one-half feet to this
elevation. Mr. Mahone asserts that the bridge construction, excavation and fill
created a dam and “flood zone” in the valley area, which is the proximate cause
for the flood damage to his personal property. Mr. Mahone stated that since
March of 1997, following construction of the Brent Beicher Bridge, the area in
question has flooded four times.
According to Stanley Lee Rose, a resident of the community for about twenty
years, during periods of heavy rain the water from Middle Fork flows onto the
1At a pre-trial conference on January 20, 2000, Mr. Mahone reduced the
amount of his claim from $67,000.00 to $7,000.00, for damage only to his
personal property after he sold the residence in question as the Administrator
of the Estate of Lola F. Mahone.
218 REPORTS
STATE COURT OF CLAIMS [W.Va.
new bridge carrying debris. The debris blocks further water which then backs up
and flows onto the properties upstream which includes that of the claimant and
Mr. Rose. The bridge is sufficient to handle water except when water flows to
the outer banks of the river. Mr. Rose asserted that before construction of the
bridge, about an inch of water would accumulate in his basement, now about four
feet of water accumulates in his basement. Mr. Rose further testified that he
has had to renovate his basement.
On March 2, 1997, the area in question began to flood in isolated pockets after
extensive rain during the previous day. By March 3, 1997, the flood waters had
receded. Emergency Services Director Allen Holder, who is the county’s link to
the State and Federal governments in times of disaster, testified that he
observed extensive damage on March 4, 1997, and requested National Guard
troops. About forty National Guard troops were sent to various locations in
Lincoln County to assist in clean-up efforts. Extensive debris remained in the
area, creating extensive county wide disposal cost, including tipping fees of
about $9,000.00. Mr. Holder further testified that the Federal Emergency
Management Agency (hereinafter referred to as “F.E.M.A.”) provided monetary
assistance to residents who were damaged by the flood. Mr. Holder was unable to
determine the cause of the flooding.
The flood damaged Mr. Mahone’s personal property which he stored in the
basement of his parents’ residence after he moved to the residence in 1991 in
order to care for his p arents. M r. M ahone did n ot have flood insurance and
h e was not eligible for fmancial assistance from F.E.M.A. According to Mr.
Mahone, his personal property items such as a television, VCR, Honda Moped,
Onan generator, table with chairs, couch, lamps, pots, pans, table and end
table could not be salvaged from the residence’s basement and were discarded. M
r. M ahone calculated the sustained loss to be in the amount of $11,000.00, but
he depreciated value of the items to the sum of $7,000.00 which amount
represents his damages.
The position of respondent is that it was not responsible for the flooding that
occurred to claimant’s property. Respondent asserted that the Brent Belcher
Bridge was constructed properly and that the damage experienced by claimant was
the result of extensive flooding throughout Lincoln County. According to
Highway Administrator Larry Paul Pauley, not since 1962 had the area
experienced such flooding. Mr. Pauley further testified that as a result of the
flood, the county sustained four to five million dollars in road damage.
On prior occasions, this Court has held that respondent may be liable for the
condition posed by a bridge. Burgess vs. Dept. of Highways, 18 Ct. Cl. 2
(1989). Respondent has an obligation to construct bridges in such a manner as
not to create subsequent flood problems for nearby property owners. Daniels
vs. Dept. of Highways, 16 Ct. Cl. 43 (1986). In claims regarding water
damage, the Court will examine whether respondent negligently failed to protect
a claimant’s property from foreseeable damage. Rogers vs. Div. of Highways, 21
Ct. Cl. 97 (1996).
W.Va.J REPORTS
STATE COURT OF CLAIMS 219
It appears to the Court that the construction of the bridge approaches and wing
walls, the increased size of the Brent Beicher Bridge over that of the previous
foot-bridge, and the propensity of the bridge guard rails to collect debris,
collaborated to create a damming effect at the site, resulting in the damage
complained of, constituting sufficient negligence on the part of respondent on
which to base an award.
Notwithstanding the negligence of respondent, the Court is of the opinion that claimant
was also culpable in the loss sustained. Claimant’s personal property was
discarded indiscriminately. No effort was made to salvage those items of
personally which could have been saved, e.g., moped, generator, pots and pans. Accordingly, the Court determines that
a fair and reasonable amount for claimant’s loss to be the amount of $3,900.00.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to claimant in the
amount of $3,900.00.
Award of $3,900.00.
OPINION ISS UED AUGUST24, 2000
ROBIN MURPHY
VS.
DIVISION OF HIGHWAYS
(CC-99-1 74)
Claimant’s husband, Duane Murphy, appeared on her behalf.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when her vehicle
struck a hole while she and her husband were traveling westbound on Route
101/1, locally known as 8th
Avenue, between 1S Street and 2” Street in Huntington. Route 101/I at this
location is maintained by respondent in Cabell County. The Court is of the
opinion to deny this claim for the reasons more fully set forth below.
Claimant’s husband appeared and testified as to the incident giving rise to
this claim which occurred on March 18, 1999, at approximately 9:00 p.m. On the
night in question, Ms. Murphy was operating her vehicle with her husband as her
passenger. They were traveling westbound on Route 101/1 from their residence to
the local Wal-Mart in her 1988 Chevrolet Beretta. Ms. Murphy and her husband
frequently travel this portion of Route 101/1 which is a narrow, two-lane,
second
220 REPORTS STATE
COURT OF CLAIMS [W.Va.
priority road at the location of the incident. Ivfr. Murphy testified that the
respondent had patched holes in the area in question, but the repairs did not
last and the area was in a state of disrepair. As Ms. Murphy was driving her
vehicle at a speed of about twenty-five to thirty miles per hour and she was
about half a block from the traffic light at First Street, when her vehicle’s
right front passenger tire suddenly struck a hole. Mr. Murphy described the
hole as being about one foot in diameter and six to eight inches deep. After
the sudden impact with the hole, Ms. Murphy maneuvered the vehicle to a safe location
where she and her husband inspected the vehicle. The impact broke the aluminum
rim and necessitated realignment of the vehicle. Since Ms. Murphy’s motor
vehicle was insured only under a liability policy, she was responsible for the
sustained loss estimated in the amount of $238.40. Eventually, Ms. Murphy sold
the vehicle.
The position of respondent is that it did not have notice of the hole on Route
101/1 in Cabell County. According to respondent, Route 101 / 1 was taken into
the State Road System on June 24, 1998. Since that time, respondent had
conducted temporary hole repair activities with cold patch on four separate
occasions prior to Ms. Murphy’s incident. Prior to March 18, 1999, respondent
asserts that it did not have notice of the hole in question.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent liable
for road defects of this type, claimant must prove that respondent had actual
or constructive n otice o ft he de fect a nd a r easonable time to t ake c
orrective a ction. Chapman vs. Dept.
of I-Iighways, 16 Ct. Cl. 103 (1986).
In the present claim, the evidence establishes that respondent had at least
constructive notice of a hazardous condition on Route 101 / 1, and further,
that it was negligent in its maintenance of Route 101/1. When respondent took
Route 101/1 into the State Road System, it had sufficient time in which to
inspect and make more permanent repairs to the road. Notwithstanding this
fmding of negligence on the part of respondent, the Court is also of the
opinion that claimant also was culpable in the operation of her vehicle. She
was in an area well known to her and she should have been aware of the hole in
the road surface. Claimant should have been driving in a manner that took into
consideration the then and there existing road conditions. In a comparative
negligence jurisdiction such as West Virginia the negligence of a claimant can
reduce or bar recovery in a claim. Based on the above, the Court finds that the
negligence of claimant was equal to or greater than that of respondent.
Consequently, the negligence of claimant is a complete bar to recovery in this
claim.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
W.Va.] REPORTS
STATE COURT OF CLAIMS 221
OPINION ISSUED OCTOBER 13, 2000
JOHN A. EDENS
VS.
DIVISION OF CORRECTIONS
(CC-00-204)
Claimant appeared pro Se.
Joy M. Boiling, Assistant Attorney General, for respondent.
PER CURIAM:
This c laim was s ubmitted for de cision b ased upon the a ilegations in the
Notice of Claim and respondent’s Answer.
Claimant, formerly an inmate at the Mount Olive Correctional Center, in Fayette
County, seeks $863.00 for personal property that was entrusted to respondent.
When claimant entered respondent’s facility, he was informed that certain items
of his personal property were considered contraband. Employees of respondent
confiscated claimant’s personal property and agreed to mail the personal
property to an address specified by claimant. When the personal property did
not arrive at the specified address within a reasonable amount of time,
claimant discovered that his property was missing. Thus far, respondent’s
employees have been unable to produce claimant’s personal property.
In its Answer, respondent admits the validity of the claim in the amount of
$733.00, rather than the amount of $863.00. Claimant is in agreement with
respondent’s assessment of this claim. The Court is aware that respondent does
not have a fiscal method for paying claims of this nature; therefore, the claim
has been submitted to the Court for determination.
This Court has taken the position in prior claims that if a bailment situation
has been created, respondent is responsible for property of an inmate which is
taken from that inmate, remains in its custody, and is not produced for return
to the inmate.
Accordingly, the Court makes an award to the claimant herein in the amount of
$733.00.
Award of $733.00.
OPINION ISSUED OCTOBER 13, 2000
LEONARD BRENT NEWSOME
222 REPORTS STATE
COURT OF CLAIMS [W.Va.
VS.
DIVISION OF HIGHWAYS
(CC-99-298)
Claimant appeared pro Se.
Xueyan Thang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle, boat and boat-trailer damage
sustained when the axle of his boat-trailer was struck by a loose board when he
was driving across a wooden bridge on State Secondary Route 3/5 in
Breeden. State Secondary Route 3/5, at this location, is a road maintained by respondent in
Mingo County. The Court is of the opinion to make an award in this claim for
the reasons more fully set forth below.
The incident giving rise to this claim occurred on July 8, 1999, at
approximately 8:30 p.m. At dusk on the evening in question, Mr. Newsome, his
wife Crystal Newsome, and his son were traveling from the lake at East Lynn to
their residence in Lenore. They were proceeding across a wooden bridge on State
Secondary Route 3/5 in Breeden, about two miles from the Wayne County line. The
wooden overlay of the bridge consists of two-inch thick by six-inch wide boards
that are sixteen feet long and these are anchored to the structure by four and
one-half inch nails. Mr. Newsome was aware that the wooden bridge was often in
a state of disrepair. A resident of the area and Mr. Newsome’s mother-in-law,
Geraldine Marcum, testified that the bridge is usually in a state of disrepair
because of coal truck traffic.
As Mr. Newsome slowly drove his 1989 Toyota Pick-up truck across the bridge,
one of the truck’s back tires went over a loose board and raised it up causing
it to strike the axle of the boat-trailer which he was hauling. Both the truck
and the boat-trailer were stopped suddenly. The impact broke the back axle,
damaged the boat, damaged the motor attachments, bent the propeller on the
motor of the boat, and damaged the truck’s bumper. The boat-trailer was
determined to be non- repairable. Since Mr. Newsome was insured under a
liability only motor vehicle insurance policy, he was responsible for the
sustained loss estimated in the amount of $1,114.43. The position o fr
espondent is that it did fl 0th ave
notice o fthe condition of the wooden bridge on State Secondary Rout 3/5 in Mingo
County. According to Transportation Worker II Cecil Collins, all of the
remaining wooden bridges in Mingo County are being replaced by pre-fabricated
bridges. Respondent’s standard operating procedure for maintenance of these
remaining wooden bridges is to make a response immediately after a complaint is
filed. After each winter, these wooden bridges are inspected. Mr. Collins
acknowledged that the remaining wooden bridges are a constant problem because
of climate conditions and the structures
W.Va.} REPORTS
STATE COURT OF CLAIMS 223
themselves. Also, Mr. Collins acknowledged that he has received legitimate
complaints about the boards on the wooden bridges. Further, Mr. Collins
asserted that respondent had spent many hours over a six month period on State
Secondary Route 3/5, but he was unable to determine if the wooden bridge in
question had been repaired during that time.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81 (1947). In order to hold respondent liable
for road defects of this type, claimant must prove that respondent had actual
or constructive n otice o ft he de fect a nd a r easonable time t o t
ake corrective a ction. Chapman
vs. Dept. of Highways, 16 Ct. Cl. 103
(1986).
In the present claim, the evidence established that respondent had actual
notice of the condition of the wooden bridge on State Secondary Route 3/5 in Mingo
County. The Court is of the opinion that the condition of the wooden bridge in
question constituted a hazardous condition and that respondent was negligent in
its maintenance of the bridge.
As for the loss sustained by the claimant, the Court has determined the fair
and reasonable value of the boat, boat-trailer and truck bumper to be in the
amount of $1,000.00, disregarding any salvage. Consequently, there is
sufficient evidence on the part of respondent by which claimant may recover his
sustained loss.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in
the amount of$l,000.00.
Award of $1,000.00.
OPINION ISSUED NOVEMBER 1, 2000
BILL LEWIS MOTORS, iNC.
VS.
DIVISION OF LABOR
(CC-00- 197)
Claimant appeared pro Se.
Joy M. Bolling, Assistant Attorney
General, for respondent.
PER CURIAM:
This c laim was s ubmitted for decision based upon the a ilegations in the
Notice of Claim and respondents Answer.
224 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claimant seeks $179.10 for automotive repair services rendered to respondent in
Gr eenbrier C ounty. T he do cumentation for these s ervices was not processed
for payment within the appropriate fiscal year; therefore, claimant has not
been paid. In its Answer, respondent admits the validity of the claim as well
as the amount, and states that there were sufficient funds expired in the
appropriate fiscal year from which the invoice could have been paid.
Accordingly, the Court makes an award to claimant in the amount of
$179.10.
Award of $179.10.
OPINION ISSUED NOVEMBER 1, 20001
CABELL COUNTY COMMISSION
VS.
DIVISION OF CORRECTIONS
(CC-00-335)
William T. Watson, Attorney at Law, for claimant.
Joy M. Bolling, Assistant Attorney General, for respondent.
PER CURIAM:
This c laim was submitted for de cision b ased upon the allegations in the
Notice of Claim and respondent’s Answer.
Claimant, Cabell County Commission, is responsible for the incarceration of
prisoners who have committed crimes in Cabell County, but have been sentenced
to facilities owned and maintained by respndent, Division of Corrections.
Claimant brought this action to recover $66,550.00 in costs for providing
housing and/or medical care to prisoners who have been sentenced to a State
penal institution, but due to circmnstances beyond the control of the county,
these prisoners have had to remain in the custody of the county for periods of
time beyond the date of the commitment order.
The Court previously determined in County Comm ‘n. of Mineral County vs. Div. of Corrections, 18 Ct. Cl. 88 (1990), that respondent is liable to
claimant for the cost of housing and providing medical care to inmates
sentenced to a State penal institution.
Pursuant to the holding in Mineral County, respondent reviewed this
claim to determine the invoices for the services for which it may be liable.
Respondent then filed an Answer admitting the validity of the claim in the
amount of $66,550.00.
In view of the foregoing, the Court is of the opinion to and does make an
award to claimant in the amount of $66,550.00.
W.Va.J REPORTS
STATE COURT OF CLAIMS 225
Award of $66,550.00.
OPINION ISSUED NOVEMBER 1, 2000
ERIC CORY
VS.
DIVISION OF IGH WAYS
CC-98-62)
Vincent S. Gurrera, Attorney at Law, for climant.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court or decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the
claim were agreed to as follows:
1. On the 2gth
day of February, 1995, claimant Eric
Cory was traveling on County Route 20 in New Cumberland, Hancock County, when
he lost control of his vehicle and it struck a tree.
2. On the date in question, respondent was responsible for the maintenance of
County Route 20, Hancock County, and was aware that the road was in a state of
disrepair.
4. As a result of this incident, claimant sustained personal injuries and
property damage. Claimant agreed to settle and relinquish this claim for the
amount of $6,500.00.
5. Respondent agrees that the amount of damages as put forth by the claimant is
fair and reasonable.
The Court has reviewed the facts of this claim and finds that respondent was
negligent in its maintenance of County Route 20 in Hancock County on the date
of claimant’s incident; that the negligence of respondent was a proximate cause
of the damages sustained to claimant’s vehicle and claimant’s physical
injuries; and that the amount of the damages agreed to by the parties is fair
and reasonable. Thus, claimant may make a recovery for his sustained loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $6,500.00.
Award of $6,500.00.
226 REPORTS
STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED NOVEMBER 1, 2000
BARBARA LINKOUS
VS.
DIVISION OF IGHWAYS
CC-00-269)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when her vehicle
struck a low manhole when she was traveling north on Routes 15 and 20, locally
known as Main Street, in Webster Springs. Routes 15 and 20 are maintained by
respondent in Webster County. The Court is of the opinion to make an award in
this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on June 9, 2000, at
approximately 10:00 to 10:30 p.m. On the night in question, Ms. Linkous, her
daughter, grand-daughter, and two friends were returning from playing bingo at
the local firehouse. She was driving north on Routes 15 and 20 in her 1992
Dodge Dynasty at a speed of less than twenty-five miles per hour as she had
just passed through a traffic light at an intersection. Ms. Linkous testified
that she frequently travels this portion of road and was aware of a low manhole
in the road. At this location, Routes 15 and 20 are a straight, narrow, two
lane asphalt road with double yellow lines indicating the center o fthe roads
urface. T he width o fthe road is twenty-four feet, which includes parallel
parking spaces on the west side of the road. A four inch curb is located on the
east side of the road. A traffic light is located directly south of the
location in question, where Routes 15 and 20 combine into one road. In the
travel portion of the north lane, a round manhole is located about five feet
five inches from the second yellow line and two feet from the curb on the north
side of the road. Ms. Linkous testified that the depth of the manhole from the
road surface was about eight inches. As Ms. Linkous drove her vehicle through
the traffic light, an oncoming flatbed truck came into her lane of travel
forcing her to veer her vehicle to the right whereupon it went into the
manhole. Both passenger side tires struck the hole. The impact burst the
passenger side tires, bent the rims and damaged the transmission. The damage
exceeded the $100.00 deductible feature in her motor vehicle insurance policy.
In accordance with the Court’s decision in Summerville et al. vs. Division
of Highways, any recovery would be limited to the amount of her deductible
feature. See Id., 18 Ct. Cl. 110 (1991).
W.Va.] REPORTS
STATE COURT OF CLAIMS 227
The position of respondent is that it did not have notice of the low manhole on
Route 15 and 20 in Webster County. According to Highway Administrator Jirnniy
Collins, respondent had conducted a paving project on this portion of road and
that manholes in the area had not been raised to pavement level. Mr. Collins
further testified that he was unaware of the manhole that claimant’s vehicle struck.’
Prior to this time, respondent asserts that it did not have notice of any
problems with the level of manholes on the road surface.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims,
130 W.Va. 645; 46 S.E.2d 81(1947). In
order to hold respondent liable for road defects of this type, claimant must
prove that respondent had actual or constructive notice of the defect and a
reasonable time to take corrective action. Chapman vs. Dept. of Highways, 16
Ct. Cl. 103 (1986).
In the present claim, the evidence established that respondent had
constructive notice, if not actual notice, of the low manhole on Routes 15 and
20 in Webster County. After completing its paving project, respondent was aware
that
structures in the road surface needed to be raised to pavement level. The Court
is of the opinion that respondent should have been more diligent in its duties
especially
since the road is narrow and vehicles can be forced into the structures.
Consequently, there is sufficient evidence of negligence on the part of
respondent upon which
claimant may recover her sustained loss.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award in this claim.
Award of$100.00.
OPINION ISSUED NOVEMBER 1, 2000
McDOWELL COUNTY COMMISSION
VS.
DIVISION OF CORRECTIONS
(CC-00-31 1)
Sidney H. Bell, Prosecuting Attorney, for claimant.
Joy M. Boiling, Assistant Attorney General, for respondent.
1Respondent adduced eight photographs on September 26, 2000, as post hearing
exhibits, which establish the existence and location of the manhole in
question.
228 REPORTS
STATE COURT OF CLAIMS [W.Va.
PER CURIAM:
This c laim was s ubmitted for de cision b ased upon the allegations in the
Notice of Claim and respondents Answer.
Claimant, McDowell County Commission, is responsible for the incarceration of
prisoners whohave committed crimes in McDowell County, but have been sentenced
to facilities owned and maintaine by respondent, Division of Corrections.
Claimant brought this action to recover $237,039.89 in costs for providing
housing and/or medical care to prisoners who have been sentenced to a State
penal institution, but due to circumstances beyond the control of the county,
these prisoners have had to remain in the custody of the county for periods of
time beyond the date of the commitment order.
The Court previously determined in County Comm’n. of Mineral County vs. Div.
of Corrections, 18 Ct. Cl. 88 (1990), that respondent is liable to claimant
for the cost of housing and providing medical care to inmates sentenced to a
State penal institution.
Pursuant to the holding in Mineral County, respondent reviewed this
claim to determine the invoices for the services for which it may be liable.
Respondent then filed an Answer admitting the validity of the claim in the
amount of
$237,039.89.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $237,039.89.
Award of $23 7,039.89.
OPINION ISSUED NO VEMBER 1, 2000
MONONGALIA COUNTY COMMISSION
VS.
DIVISION OF CORRECTIONS
CC-00-347)
Claimant appeared pro se.
Joy M. Boiling, Assistant Attorney General, for respondent.
PER CURIAM:
This claim w as s ubmitted for de cision b ased upon the allegations in the
Notice of Claim and respondents Answer.
Claimant, Monongalia County Commission, is responsible for the incarceration of
prisoners who have committed crimes in Monongalia County, but have been
sentenced to facilities owned and maintained by respondent, Division of
W.Va.J REPORTS
STATE COURT OF CLAIMS 229
Corrections. Claimant brought this action to recover $55,248.09 in costs for
providing housing andior medical care to prisoners who have been sentenced to a
State penal institution, but due to circumstances beyond the control of the
county, these prisoners have had to remain in the custody of the county for
periods of time beyond the date of the commitment order.
The Coui-t previously determined in County
Comm ‘n. of Mineral County vs. Div. of Corrections, 18 Ct. Cl. 88 (1990), that respondent is liable to
claimant for the cost of housing and providing medical care to inmates sentenced
to a State penal institution.
Pursuant to the holding in Mineral
County, respondent reviewed this claim
to determine the invoices for the services for which it may be liable.
Respondent then filed an Answer admitting the validity of the claim in the
amount of $55,248.09.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $55,248.09.
Award of $55,248.09.
OPINION ISSUED NOVEMBER 1, 2000
WEST VIRGINIA UNIVERSITY HOSPITALS,
INC.
VS.
DIVISION OF CORRECTIONS
(CC-00-3 12)
Claimant appeared pro Se.
Joy M. Boiling, Assistant Attorney
General, for respondent.
PER CURIAM:
This c laim was s ubmitted for de cision b ased upon the allegations in the
Notice of Claim and respondents Answer.
Claimant seeks payment in the amount of $117,927.64 for medical services
rendered t o a n in mate in t he c ustody o f r espondent at M ount 0 live C
orrectional Complex, Fayette C ounty. R espondent, in its A nswer, admits the
validity oft he claim, but states that there were insufficient funds in its
appropriation for the fiscal year in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem
Sales and Service, et aL vs. Dept. of Mental Health, 8 Ct. Ci. 180 (1971).
Claim disallowed.
230 REPORTS
STATE COURT OF CLAIMS [W.Va.
ORDER ENTERED NOVEMBER 30, 2000
IN THE COURT OF CLAIMS STATE OF WEST VIRGINIA
CAMERON GAS COMPANY
Claimant,
V. CLAIMS NO.: CC-99-363 & CC-99-377
WEST VIRGINIA DEPARTMENT
OF ADMINISTRATION, PURCHASING DIVISION,
Respondent.
CONSENT ORDER AND AWARD
On the 30th day of November, 2000, the parties to this action, Claimant
Cameron Gas Company and Respondent West Virginia Department of
Administration, Purchasing Division reached an agreement regarding the above
two
(2) styled claims currently before this Court. The parties hereby request the
Court
enter this final resolution of the claims of the parties asserted in these
actions. Upon consideration of the following the agreements of the parties
hereto, the
arguments of counsel, and the consent of the Secretary of the Department of
Administration, it is hereby ADJUDGED, ORDERED, AND DECREED;
I. The Respondent hereby agrees to pay the Claimant the sum of one hundred
thousand dollars ($100,000.00) as full and complete satisfaction of both of the
above styled claims filed with this Court.
2. All claims filed in these actions by Claimant will be released according to
law upon Claimants’s receipt of the settlement proceeds set forth herein.
3. The parties acknowledge the actual payment of one hundred thousand dollars
($100,000.00) is contingent upon this Consent Order and Award being approved by
the Legislature of the State of West Virginia. The award shall be paid from
special revenue funds.
4. The parties hereby state that this Consent Order and Award is a compromised
settlement for disputed claims within this Court. Claimant
W.Va.] REPORTS
STATE COURT OF CLAIMS 231
agrees that payment of settlement amount constitutes full and complete
satisfaction of both claims, i.e., CC-99-363
and CC-99-377.
5. By execution of this Consent Order and Award the Department of Administration
represents that it is in the best interest of the State of West Virginia to
resolve the above claims referenced herein pursuant to the terms of this
Consent Order and Award,
Upon consideration of the foregoing this court hereby enters an award in favor
of the Claimant and against the West Virginia Department of Administration,
Purchasing Division, in the amount of one hundred thousand dollars ($1
00,000-00).
So ORDERED this 30th day of November, 2000.
OPINION ISSUED DECEMBER 4, 2000
WENDELL K. ASH
VS.
DIVISION OF CORRECTIONS
(CC-00-199 & CC-00-238)
Claimant appeared pro Se.
Joy M. Boiling, Assistant Attorney General, for respondent.
PER CURIAM:
Claimant, an inmate at Mount Olive Correctional Complex, brought this claim to
recover the value of colored paper taken from his cell, funds deducted from his
prison trustee account for items he did not receive, overcharges on postage
paid on outgoing mail, and a rug that was lost in the prison laundry) Mount
Olive Correctional Complex is a facility or respondent in Fayette County. Each
claim will be addressed separately by the Court. The Court is of the opinion to
make an award in part II of this claim and deny the rest of the claims for the
reasons more fully set forth below.
I
‘Claimant originally filed this claim
as CC-O0- 199. However, claimant later filed the claim CC-00-238, which
revised, incorporated and added to CC-00-199.
Afterwards, claimant dismissed CC-00- 199.
232 REPORTS STATE
COURT OF CLAIMS [W.Va.
On the 8th
day of August, 2000, Mount Olive
Correctional Complex was under a state of emergency. All items, except for
clothing were removed from each inmates cell. Eventually, the property was
returned to the inmates. When claimant received his property, he discovered
that his colored paper was missing. Respondent informed claimant that the paper
had been confiscated because it was considered contraband in the administrative
segregation unit, pursuant to Revised Operational Procedure Number 3.10, which
was established on the 23nl
day of August, 1996. According to Unit
Manager for the Segregation Unit Lieutenant Robert Daniel, any item not
specifically mentioned in the policy is considered contraband. Respondent gave
claimant the option of either returning the paper or having it destroyed.
Claimant testified that the paper was necessary for his legal work, pursuant to
Rules of the United States Supreme Court Rule 33. Claimant filed a grievance in
order to be allowed to have the colored paper. Before claimant’s grievance was
heard, the colored paper was destroyed. The value of the paper was estimated to
be the amount of $5. 19.
II
Claimant testified that he placed an
order at the prison exchange, but did not receive any of the items that he
ordered, nor were any items returned by him. According to claimant, receipts
before and after the week of the 2 day of November, 1999, establish that his
account was charged $13.13 for items he did not receive. According to Exchange
Supervisor Angela Carpenter, an order was placed, but she did not know what
happened to it. Ms. Carpenter testified that items are placed in bags and then
placed in carts. Afterwards, the carts are placed in the multipurpose room
where inmates sign for packages. Respondent did not have any receipts accounting
for the $13.13 difference in the aforementioned receipts. Claimant’s requests
for his account to be credited the $13.13 difference have thus far been denied
by personnel at the Complex.
III
In early December of 1999, claimant
signed a blank money voucher in order to have a package mailed. The voucher
cleared his prison trustee account on the 7th day
of December, 1999. When claimant received a printout of his mail transactions,
he discovered that the voucher had been made for the amount of $4.18. Claimant
testified that he had been notified that the package cost only $1.60 to mail.
According to Account Technician Rita Dunlap, money vouchers are not to be
completed unless completely filled out. Ms. Dunlap testified that the Post
Office checks vouchers and that her responsibility is to clear the amount of
the vouchers for the Post Office. Moreover, Post Office Supervisor Patricia
Hanshaw testified that only legal letters are logged. Personal letters by
inmates are not logged. Thus, if an inmate has more that one personal letter,
then these are totaled together and placed on one voucher. Ms. Hanshaw further
testified that vouchers are not always filled out.
W.Va.] REPORTS
STATE COURT OF CLAIMS 233
In addition, Ms. Hanshaw testified that if an inmate was overcharged, then the
Post Office reimburses that inmate.
Iv
In June of 2000, claimant sent two bags of
laundry to the prison laundry. One bag contained a three feet wide by five feet
long rug. Claimant had purchased the rug from the prison exchange for the
amount of $17.00. Upon receiving his returned laundry items, claimant inspected
his laundry and discovered that the rug was missing. Claimant filed a
grievance, but the rug was not found.
The position of respondent is that it was not responsible for personal items
lost in the laundry. Pursuant to Mount Olive Correctional Complex Operational
Procedure Number 3.49, the facility is not responsible for personal property
items lost in the prison laundry. According to Supervisor I Benton Petry, the
facility’s policy was in place at the time of the incident and made known to
inmates. Mr. Petry stated that when a mix-up occurs in the laundry, efforts are
made to determine ownership and to return the laundry items. Further,
Correctional Magistrate Joseph B. Coy testified that efforts have been made to
reduce the loss of laundry items due to extortion.
CONCLUSION
With regard to laundry items in part I of this claim, respondent allows inmates
to have personal property items. If an inmate chooses to have such personal
property items, then that inmate has a duty to secure and document such items.
On prior occasions, this Court has held that inmates assume the risk for
personal property items that are sent to the prison laundry. Skaggs vs.
Division of Corrections, 21 Ct.
Cl. 181 (1997).
In the present claim, claimant chose to have a rug in his cell. He assumed the
risk of loss when the rug was sent to the prison laundry. Consequently, there
is insufficient evidence of negligence on the part of respondent upon which to
base an award for the missing rug.
With regard to part II of this claim, the amount of $13.13 appears to the Court
to be an amount due and owing to the claimant. The respondent maintains these
accounts at the prison exchange for and on behalf of each inmate and it is
responsible for these accounts. Respondent could not establish that claimant’s
account was maintained accurately; therefore, the Court is of the opinion that
claimant may recover the $13.13 which is missing from this particular account.
As to the other claims as described herein above, the Court is of the opinion
that c laimant may have sustained a loss as a result o ft he a ctions o fr
espondent. However, the Court is further of the opinion that the maxim de
minimis non curat lex is applicable to this claim. This venerable principle
of the common law stands for the proposition that the law does not care for, or
take notice of, very small or trifling matters. B lack’s Law Dictionary, 297 ( 6h e d. 1990).
Under this principle, mere
234 REPORTS
STATE COURT OF CLAIMS [W.Va.
nominal damages proved as a matter of set-off or recoupment are disregarded in
the ascertainment of the amount due a claimant. Harper vs. Coal & Land
Co., 80 W.Va. 246; 92 S.E. 565 (1917). The Court has determined that
the controversy in these claims involves damages which are inconsequential in
regards to the sustained loss. Consequently, the rest of the claims should be
disallowed.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to make an award in the amount of $13.13 and
to deny the remainder of the claim.
Award of$13.13.
OPINION ISSUED DECEMBER 4, 2000
JANET J. BOROWSKI
VS.
WV SOLID WASTE MAAGEMENT BOARD
(CC-00-300)
Claimant appeared pro Se.
Joy M. Bolling, Assistant Attorney General, for respondent.
PER CURIAM:
This c laim was s ubmitted for de cision b ased upon the allegations in the
Notice of Claim and respondents Answer.
Claimant, an employee of the respondent State agency, seeks reimbursement in
the amount of $487.29 for travel expenses incurred in her capacity as an
employee for respondent. The documentation for the travel expenses was not
processed for payment within the appropriate fiscal year; therefore, claimant
has not been paid. In its Answer, respondent admits the validity of the claim
as well as the amount, and states that there were sufficient funds e xpired in
the appropriate fiscal year from which the invoice could have been paid.
Accordingly, the Court makes an award to claimant in the amount of
$487.29.
Award of $487.29.
OPINION ISSUED DECEMBER 4, 2000
ROBERT BOWERS, III
W.Va.] REPORTS
STATE COURT OF CLAIMS 235
VS.
DIVISION OF CORRECTIONS
(CC-00-270)
Claimant appeared pro Se.
Joy M. Boiling, Assistant Attorney
General, for respondent.
PER CURIAM:
Claimant, an inmate at Mount Olive Correctional Complex, brought this claim to
recover the value of items which he had ordered and which he was not allowed to
possess. These items were destroyed by personnel at the Complex. Mount Olive
Correctional Complex is a facility of respondent in Fayette County. The Court
is of the opinion to deny this claim for the reasons more fully set forth
below.
Claimant ordered a clip-on-light and a four-quart food storage container from a
specialized catalog approved for use by inmates. The four-quart food storage
container was not approved by the facility. Pursuant to Mount Olive
Correctional Complex Operational Procedure Number 3.10, the clip-on-light was
allowed by the facility. Unbeknownst to claimant, the Deputy Warden had given a
verbal directive that new clip-on-lights were to be restricted and no longer
approved for use by the inmates. The value of the clip-on-light and the food
storage container were $6.25 and $1.75, respectively. When the items arrived at the facility on
or about the 20th
day of March, 2000, these were
confiscated by the State Shop. Respondent, in a memorandum dated the 4t1 day of April, 2000, informed claimant that he was not
allowed to possess the clip-on-light and that it had been confiscated. The
memorandum further stated that claimant had seven days to inform the State Shop
whether to return the items or allow them to be destroyed. Claimant asserts
that this time frame did not allow him sufficient time to appeal the decision.
Thus, the items were destroyed.
The position of respondent is that it was not responsible for the demise of the
ordered items. According to Assistant Warden of Operations Tim Whittington, he
was given a verbal directive from the Deputy Warden to disallow new clip-on-
lights from the facility. Moreover, the Deputy Warden is the individual
responsible for issuing such a memorandum to inmates regarding a change in the
operating policy. Mr. Whittington further testified that claimant was given an option
as to how the property was to be disposed. Claimant chose to allow the property
to be destroyed and in the process, suffered a loss.
In the present claim, the Court is of the opinion that claimant sustained a
loss as a result of the actions of respondent. However, the Court is further of
the opinion that the maxim de minimis
non cura lex is applicable to this
claim. This venerable principle of the common law stands for the proposition
that the law does
236 REPORTS
STATE COURT OF CLAIMS [W.Va.
not care for, or take notice of, very small or trifling matters. Black’s Law
Dictionary, 297 (6tl ed. 1990). According to this principle, mere nominal
damages proved as a matter of set-off or recoupment are disregarded in the
ascertainment of the amount due a claimant. Harper vs. Coal & Land Co., 80
W.Va. 246; 92 S.E. 565 (1917). The Court has determined that the
controversy in this claim involves damages which are inconsequential.
Consequently, this claim should be disallowed.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to deny this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 4, 2000
ROGER L. DAFF
VS.
DIVISION OF MOTR VEHICLES
(CC-00-20 1)
George F. Fordham, Attorney at Law, for caimant.
Joy M. Bolling, Assistant Attorney General, for respondent.
PER CURIAM:
This c laim was s ubmitted for de cision b ased upon the allegations in the
Notice of Claim and respondent’s Answer.
Claimant seeks $320.00 for expenses incurred when he was arrested and his
vehicle impounded in Grafton, Taylor County. Respondent had revoked wrongfully
his motor vehicle driver’s license. In its Answer, respondent admits the
validity of the claim and that the amount is fair and reasonable. The Court is
aware that respondent does not have a fiscal method to reimburse claimant for
his sustained loss; therefore, the claim has been submitted to this Court for
determination.
Accordingly, the Court makes an award to claimant in the amount of
$320.00.
Award of $320.00.
OPINION ISSUED DECEMBER 4, 2000
DANNY GARRISON
VS.
W.Va.] REPORTS
STATE COURT OF CLAIMS 237
DIVISION OF CORRECTIONS
(CC-0O- 148)
Claimant appeared pro se.
Joy M. Boiling, Assistant Attorney
General, for respondent.
PER CURIAM:
Claimant, an inmate at Mount Olive Correctional Complex, brought this claim to
recover the value of his personal bed sheets that he alleges were lost when he
placed the sheets in the prison laundry. Mount Olive Correctional Complex is a
facility of respondent in Fayette County. The Court is of the opinion to deny
this claim for the reasons more fully set forth below.
Pursuant to Mount Olive Correctional Complex Operational Procedure Number 3.49,
the facility is not responsible for personal property clothing items lost in
the prison laundry. During claimant’s time of incarceration, this policy was in
effect. Claimant purchased personal bed sheets on the 16th day of
December, 1998. During the week of the 12t1 of January, 2000, claimant had sent
his property to the prison laundry. When it was returned to him, the bed sheets
were missing. Claimant had made no effort to document his personal property
clothing items, including his personal sheets, that were sent to the prison
laundry on this particular occasion. The bed sheets had a value of $26.75.’ Claimant immediately notified the on-duty supervisor
and filed a grievance. Since then, the personal bed sheets have not been found.
The position of respondent is that it was not responsible for personal items
lost in the laundry. According to Supervisor I Benton Petry, the facility’s
policy was in place at the time of the incident and made known to the inmates.
Any personal clothing may be stamped if an inmate so desires in order that
ownership may be determined. Mr. Petry further stated that when a mix-up occurs
in the laundry, efforts are made to determine ownership and to return the
laundry items.
Respondent allows inmates to have personal property clothing items, even though
it provides such items. On prior occasions, this Court has held that inmates
assume the risk for personal property items that are sent to the prison
laundry. Skaggs
vs. Division of Corrections, 21 Ct.
Cl. 181 (1997).
In the present claim, claimant chose to have personal bed sheets rather than
those provided by the facility. He assumed the risk of loss when the sheets
were sent to the prison laundry. Consequently, there is insufficient evidence of
negligence on the part of respondent upon which to base an award.
‘On the 23rd
day of October, 2000, claimant adduced
a receipt from his trustee account that established the date of purchase and
value of the sheets.
238 REPORTS
STATE COURT OF CLAIMS [W.Va.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to deny this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 4, 2000
CHRIS PAGE
VS.
DIVISION OF CORRECTIONS
(CC-00-4 14)
Claimant appeared pro se.
Charles Houdyschell, Jr., Assistant
Attorney General, for respondent.
PER CURIAM:
Claimant, an inmate at Mount Olive Correctional Complex, brought this claim to
recover the value of his Aiwa Wallcman, Tx-591 radio-cassette player with headphones
and an AC Adapter that were not returned to him after these items had been
appropriated, documented for storage, and placed in storage by respondent when
claimant was in lock-up. Mount Olive Correctional Complex is a facility of
respondent in Fayette County. The Court is of the opinion to make an award in
this claim for the reasons more fully set forth below.
During the months of May and June, 2000, claimant was sent to lock-up. At this
time, the personal property in his cell, including an Aiwa Walkman, Tx-59 I
radio-cassette player with headphones and an AC Adapter, were appropriated,
documented and stored by employees of respondent. In June 2000, claimant was
released from lock-up. Claimant was given back some of his personal property,
except for the items indicated above. His Resident’s Personal Property Form
made note of the fact that he did not receive these items. The lost property
was valued at $84.20. Since being released from lock-up, claimant has made
inquiries to respondent regarding these items of personal property, but the
items have not been found or returned to him.
Respondent, in its Answer, admits that this claim is valid and the amount of
the claim is admitted. The Court has held in claims of this nature that a
bailment situation has been created and the reasoning for that holding is
stated hereinbelow.
When personal property of an inmate is recorded for the inmate and then taken
for storage purposes, this Court has previously viewed such situations as a
bailment. According to Black’s Law Dictionary, a bailment is:
W.Va.j REPORTS
STATE COURT OF CLAIMS 239
“A delivery of goods or personal property, by one person (bailor) to another
(bailee), in trust for the execution of a special object upon or in relation to
such goods, beneficial either to the bailor or bailee or both, and upon a
contract, express or implied, to perform the trust and carry out such object,
and thereupon either to redeliver the goods to the bailor or otherwise dispose
of the same in conformity with the purpose to the trust. The bailee is
responsible for exercising due care toward the goods.” Id 95 (6t11 ed. 1990).
Consequently, respondent, the bailee, must have satisfactory documentation for
return of the property to the inmate, the bailor. Heard vs. Division of Corrections, 21 Ct. Cl. 151 (1997). Claimant has the burden of proof
to demonstrate by a preponderance of the evidence that there was a delivery of
claimant’s property to respondent before a prima facie case is established for
the failure to return items claim accrues. Nolan vs. Division of Corrections, 19 Ct. Cl. 89 (1992).
In the instant claim, claimant has established a prima facie case of bailment
for the items which were not returned to him. The evidence established that
there was a delivery of claimant’s property to respondent. The Court has
determined that respondent failed adequately to care for claimant’s personal
property since it was not returned to him.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award in this claim.
Award of $84.20.
OPINION ISSUED DECEMBER 4, 2000
DAVID LEE WELCH
VS.
DIVISION OF CORRECTIONS
(CC-00-24)
Claimant appeared pro se.
Joy M. Bolling, Assistant Attorney
General, for respondent.
PER CURIAM:
Claimant, currently an inmate at the Huttonsville Correctional Center, brought
this action for reimbursement for a computer correspondence course that he was
not allowed to complete while in the custody of respondent at the Mount Olive
240 REPORTS
STATE COURT OF CLAIMS [W.Va.
Correctional Complex. Mount Olive Correctional Complex is a facility operated
by respondent in Fayette County. The Court is of the opinion to deny this claim
for the reasons more fully set forth below.
On January 2, 1997, Mr. Welch enrolled in a computer correspondence course
taught by NRI Schools. Clearance for Mr. Welch’s participation in the
correspondence course was given by Director of Education at the Complex,
Frances
F. Warsing, on January 8, 1997. The cost of the correspondence course was
$3,446.00. All of the course materials were to be received through Ms. Warsing.
The course materials were stored in the Industries Building and Mr. Welch was
required to complete his course work at that location. In order to further his
studies, Mr. Welch enrolled in a computer book club, but respondent denied him
access to the ordered books as they were not necessary for his course work. Mr.
Welch filed a grievance for the value of the ordered books. Respondent denied the
grievance pursuant to policy directive 670.00, by which Mr. Welch did not have
authorization to enter into a contract with the computer book club. Ms. Warsing
had determined that the computer correspondence course would meet Mr. Welch’s
educational needs. An employee of respondent, Dale Howe, testified that he
informed claimant of the policy that the computer was to be used for
educational purposes only.
On June 4, 1999, Mr. Welch’s computer and course related material were seized
in the automotive classroom by Correctional Officer II, Kenny Bowles. The
computer and materials were placed in the communications office storage area.
On August 2, 1999, Mr. Welch was required to mail the computer and materials to
his mother’s residence. I n a m emorandum dated A ugust 17, 1999, Warden Howard
Painter informed Mr. Welch that by Order of the Commissioner no computers were
allowed in inmate cells, which included his computer. Policy Directive 639.01.
effective August 18, 1997, established the policy for dealing with inmate
ownership of personal computers. This directive superceded all other
directives. Subsequently, Warden George Trent informed the Mount Olive
Correctional Complex inmate population by memorandum that each inmate had until
November 30, 1997, to remove their personal computers from the facility. Warden
Trent’s memorandum further stated that any information on the computer which
involved an active legal case in which an inmate is a named party, that
information would be printed out for that inmate. Mr. Welch filed a grievance
on August 20, 1999, requesting that the policy be waived for his computer since
it was located in the education department, but the grievance was denied.
On August 23, 1999, Mr. Welch was charged with violating Disciplinary Rule Number
2.11 regarding contraband. Officer Bowles found one roll of solder, six sheets
of sticker paper, and eight sheets of laminating paper while inspecting
claimant’s seized property. Mr. Welch was able to produce a receipt from his
inmate trustee account that established an inmate order for solder from Radio
Shack. In a memorandum dated August 24, 1999, Warden Howard Painter informed
Mr. Welch
W.Va.} REPORTS
STATE COURT OF CLAIMS 241
that he had been informed by Magistrate Joseph B. Coy that Mr. Welch had been
using the computer for personal matters and that the aforementioned Order
prohibited use of the computer for personal matters. A written statement by Mr.
Welch acknowledges that he used his computer for such matters. Mr. Welch was
found guilty on August 25, 1999, and received a forty-five day loss of contact
visitation privilege effective August 25,
1999, to October 9, 1999. Mr. Welch
appealed this decision, but the decision was affirmed by Warden Painter.
Officer Bowles, in a memorandum dated October 11, 1999, informed Mr. Welch that
he had until October 31, 1999, to submit to him an address and mail voucher for
the items stored in the industrial tool room. Mr. Welch complied on October 15, 1999. In
a letter dated October 18, 1999, Warden Painter informed NRI Schools that Mr.
Welch was no longer allowed to participate in the correspondence course because
of the establishment of new policies and Mr. Welch’s failure to comply with
those policies. Warden Painter also requested that Mr. Welch be released from
his contractual obligation to continue to pay for the course. Mr. Welch
appealed the ultimatum to mail out the seized contraband property, but it was
denied by Commissioner Paul Kirby on October 22, 1999. Currently, Mr. Welch’s
mother is in possession of all of the seized property
The cost of the computer correspondence course was $3,446.00, but there was a
balance of $980.00 after the computer and course materials were confiscated.
The P233MMX computer, which was purchased through the course, had a value of
$1,100.00. After the confiscation of the computer and course materials, three
of the course lessons did not require the use of the computer. Mr. Welch also
asserts damages in the amount of $1,108.39 for course related items that were
used as part of the course. Thereafter, Mr. Welch’s mother paid the contract
balance of $980.00.
The Court, having reviewed all of the facts and circumstances in this claim,
has determined that the respondent has established that the claimant used his
computer for personal letters which was a violation of respondent’s
regulations. Therefore, respondent was within its rights to require that the
claimant dispose of the computer as he desired. He, in fact, had the computer
mailed to his mother who still has t he c omputer in s afe k eeping for him w
hen h e is r eleased from H uttonsville Correctional Center. Further, the Court
is of the opinion that claimant is not entitled to recover any or all of the
tuition which he paid for his computer course. This loss should have been
anticipated when he used the computer in violation of respondent’s regulations.
Accordingly, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 20, 2000
242
REPORTS STATE COURT OF CLAIMS [W.Va.
LiNDA D. BEAN
VS.
DIVISION OF HIGHWAYS
(CC-00-15 1)
Claimant appeared pro Se.
Xueyan Thang, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by the parties wherein certain facts and circumstances of the claim were
agreed to as follows:
1. On February 23, 2000, at approximately 6:30 a.m. claimant was traveling in
her vehicle on Riggins Run Road in Doddridge County when her vehicle struck
rocks on the road surface. The rocks came from a culvert that had washed out
during flooding which had occurred a few days prior to the incident.
2. On the date in question, respondent was responsible for the maintenance of
Riggins Run Road in Doddridge County and was aware of the condition of the road
surface.
4. As a result of this incident, the front driver’s side tire burst. The
sustained damage was in the amount of $38.16.
5. Respondent agrees that the amount of damages as put forth by the claimant is
fair and reasonable.
The Court has reviewed the facts of the claim and fmds that respondent was
negligent in its maintenance of Riggins Run Road in Doddridge County on the
date of claimant’s incident; that the negligence of respondent was the
proximate cause of the damages sustained to claimant’s vehicle; and that the
amount of the damages agreed to by the parties is fair and reasonable. Thus,
claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $38.16.
Award of $38.16.
OPINION ISSUED DECEMBER 20, 2000
DONALD L. BENNINGER AND CAROL M.
BENNINGER
VS.
DIVISION OF HIGHWAYS
W.Va.} REPORTS
STATE COURT OF CLAIMS 243
(CC-99-400)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimants and respondent wherein certain facts and circumstances of the
claim were agreed to as follows:
1. On March 11, 1998, at approximately 4:00 p.m. claimant Carol M. Benninger
was traveling in her vehicle on Route 19 in Clarksburg, Harrison County. As she
proceeded along the road, her vehicle struck a line of holes in the road
surface.
2. On the date in question, respondent was responsible for the maintenance of Route
19 in Clarksburg, Harrison County and its employees were aware of the condition
of the road.
4. As a result of this incident, the front passenger tire burst and
necessitated alignment of the vehicle. The sustained damage was in the amount
of $150.52.
5. Respondent agrees that the amount of damages as put forth by claimants
is fair and reasonable.
The Court has reviewed the facts of the claim and fmds that respondent was
negligent in its maintenance of Route 19 in Harrison County on the date of claimant’s
incident; that the negligence of respondent was the proximate cause of the
damages sustained to claimants’ vehicle; and that the amount of the damages
agreed to by the parties is fair and reasonable. Thus, claimants may make a
recovery for their sustained loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $150.52.
Award of$l50.52.
OPINION ISSUED DECEMBER 20, 2000
DAVID W. BOTT
VS.
DIVISION OF HIGHWAYS
(CC-99-47 1)
Claimant appeared pro Se.
244 REPORTS STATE
COURT OF CLAIMS [W.Va.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by the parties wherein certain facts and circumstances of the claim were
agreed to as follows:
1. On September 17, 1999, claimant was traveling northbound in his 1998 Nissan
Frontier on Rt. 28 in Pocahontas County when he decided to maneuver his vehicle
to the berm of the road. As he drove onto the berm, his vehicle struck a
broken-off sign post.
2. On the date in question, respondent was responsible for the maintenance of
Route 28 in Pocahontas County and was aware of the condition of the berm.
4. As a result of this incident, the undercarriage of the vehicle was damaged.
The sustained damage was in the amount of $527.06.
5. Respondent agrees that the amount
of damages as put forth by the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Route 28 in Pocahontas County on the date of
claimant’s incident; that the negligence of respondent was the proximate cause
of the damages sustained to claimant’s vehicle; and that the amount of the
damages agreed to by the parties is fair and reasonable. Thus, claimant may
make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $527.06.
Award of $527.06.
OPINION ISSUED DECEMBER 20, 2000
THOMAS J. CARR
VS.
DIVISION OF HIGHWAYS
(CC-O0- 167)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when his vehicle
struck a hole while he was traveling in the right lane of the eastbound lanes
on 1-70 at
W.Va.] REPORTS
STATE COURT OF CLAIMS 245
the Exit 5 bridge in Triadeiphia. At this location, 1-70 is
maintained by respondent in Ohio County. The Court is of the opinion to make an
award in this claim for the
reasons more fully set forth below.
The incident giving rise to this claim occurred on March 23, 2000, at approximately 7:30 a.m. Claimant was
proceeding in the right lane of the two
eastbound lanes of 1-70 at the east end of the Exit Three bridge. He was
driving a leased 1999 Mazda Millennium and his wife was a passenger. Claimant
was
traveling from his residence in Columbus, Ohio, to Orange, Connecticut, a trip
he makes about three times per year. He was driving at a speed of about fifty-five to
sixty miles per hour. As he proceeded on 1-70, he noticed a gaping hole in the
middle of the right lane of the Exit Three bridge as his vehicle was leaving
the metal expansion joint. The hole was approximately two to three feet in
diameter and was about six to seven inches deep. Claimant was unable to avoid
having his vehicle
strike the hole. The impact burst the front tire on the driver’s side and bent
the rim. Afterwards, claimant maneuvered the vehicle to the edge of the
interstate. He then flagged down one of respondent’s employees who had driven
to the scene and he
informed him of the hole and the incident. As a result of this incident,
claimant’s vehicle sustained damage in excess of the $250.00 deductible feature
in his motor
vehicle insurance policy. In accordance with the Court’s decision in Summervile et al. vs. Division of Highways, any recovery would be limited to the amount of his
deductible feature. See Id., 18 Ct. Cl. 110 (1991).
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent liable
for road defects of this type, claimant must prove that respondent had actual
or constructive n otice o f the de fect a nd a r easonable time t o t ake c
orrective a ction. Chapman vs. Dept.
of Highways, 16 Ct. Cl. 103 (1986).
In this claim, the evidence established that respondent had at least
constructive, if not actual, knowledge of the defective condition on 1-70. The
Court is of the opinion that the hole in the interstate constituted a hazardous
condition and that respondent should have been more observant of problems on
the interstate because of its high priority status. Consequently, there is
sufficient evidence of negligence on the part of respondent by which claimant
may recover his sustained loss.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award in this claim.
Award of $250.00.
OPINION ISSUED DECEMBER 20, 2000
246 REPORTS
STATE COURT OF CLAIMS [W.Va.
ROBERT DEAN
VS.
DIVISION OF HIGHWAYS
(CC-00-21 1)
Larry 0. Ford, Attorney at Law, for claimant.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for respondent.
PER CURTAM:
This claim was submitted to the Cour for decision upon a Stipulation entered
into by counsel on behalf of the parties wherein certain facts and
circumstances of the claim were agreed to as follows:
1. On December 14, 1998, claimant Robert Dean was a pedestrian crossing a
bridge over the Coal River near St. Albans in Kanawha County. While crossing
the bridge, Mr. Dean stepped into a hole in the walkway and was injured.
2. On the date in question, respondent was responsible for the maintenance of
the bridge on U. S. Route 60 that crosses the Coal River near St. Albans,
Kanawha County, and was aware of the condition of the bridge.
4. As a result of this incident, claimant sustained personal injuries. The
damages exceeded the amount of $15,000.00. However, claimant agreed to settle
and relinquish this claim for the amount of $5,000.00.
5. Respondent agrees that the amount of damages as put forth by the claimant is
fair and reasonable.
The Court has reviewed the facts of the claim and fmds that respondent was negligent
in its maintenance of the bridge on U. S. Route 60 in Kanawha County on the
date of claimant’s incident; that the negligence of respondent was the
proximate cause of the personal injuries sustained by claimant; and that the
amount of the damages agreed to by the parties is fair and reasonable. Thus,
claimant may make a recovery for his sustained loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $5,000.00.
Award of $5,000.00.
OPINION ISSUED DECEMBER 20, 2000
JOANN FORESTER AND RICHARD C. FORESTER
VS.
DIVISION OF HIGHWAYS
(CC-00-287)
W.Va.J REPORTS
STATE COURT OF CLAIMS 247
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimants brought this action for vehicle damage sustained when their son was
driving their vehicle and he drove onto a deteriorated berm on County Route 38,
locally k nown as C ampbell H ill Road, in M oundsville. A t this location,
County Route 38 is maintained by respondent in Marshall County. The Court is of
the opinion to make an award in this claim for the reasons more fully set forth
below.
The incident giving rise to this claim occurred on July 4, 2000, at
approximately 3:00 to 5:00 p.m. Claimants’ son, Joshua Daniel Forester, was
traveling on County Route 38 in claimants’ 1989 Jeep Cherokee at a speed of
about twenty to twenty-five miles per hour. Mr. Forester was proceeding from
his residence to John Marshall High School. Mr. Forester frequently travels
this road. Claimants were following behind their son in another vehicle. At
this location, County Route 38 is a narrow, two-lane, asphalt road of secondary
priority with a steep grade. It is approximately sixteen to eighteen feet wide
and it does not have any centerline or edge lines. Moreover, there is no berm
area. Guardrail is located on one side of the road whereas on the other side of
the road there is a sloping embankment that is covered by vegetation. As Mr.
Forester proceeded downhill, he was confronted by an oncoming pickup truck proceeding
uphill. Mr. Forester maneuvered the vehicle toward the edge of the road in
order to safely pass the truck. Suddenly, the vehicle began to skid and sank
about twenty inches into the vegetation in the berm area. The vehicle then
bottomed out after traveling a short distance in the berm area. The impact
burst the two passenger side tires and damaged the underneath of the vehicle.
Since the vehicle was insured only under a liability motor vehicle insurance
policy, claimants were responsible for the sustained damage in the amount of $510.61.
The position of respondent is that it
did not have notice of the defective condition of the berm on County Route 38
in Marshall County. According to County Administrator Ronald William Faulk, the
area in question is a known landslide area. During the 1980’s, a piling project
was conducted in order to stabilize the area. Respondent paved the road several
years ago, but Mr. Faulk stated that the berm had not been built up to the edge
of the pavement. After the incident, respondent placed almost one-half ton of
gabion stone on the berm. Mr. Faulk further testified that respondent did not
have any records of complaints regarding this area within the past twelve
years.
This Court has been very consistent in regard to berm claims. In Sweda VS.
Department of Highways, this Court held:
248 REPORTS
STATE COURT OF CLAIMS [W.Va.
“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
that berm of the highway.” Id., 13 Ct. Cl. 249 (1980) (citing 39 Am.
Jur. 2d Highways, Streets, and Bridges § 488).
When a motorist uses the berm of the road in an emergency situation, that
motorist may be entitled to recover damages if the berm is not properly
maintained by respondent. Meisenhelder vs. Department of Highways, 18
Ct. Cl. 80 (1990).
In this claim, the evidence established that respondent had at least constructive
if not actual knowledge of the berm area of County Route 38. The Court is of
the opinion that the berm of the road constituted a hazardous condition.
Claimants’ son should have been able to rely on a safe berm when confronted by
oncoming traffic. Consequently, there is sufficient evidence of negligence on
the part of respondent by which claimants may recover their loss.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award in this claim.
Award of $510.61.
OPIWION ISSUED DECEMBER 20, 2000
JOSEPH S. FOSTER
VS.
DIVISION OF HIGHWAYS
(CC-99- 194)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for the value of his vehicle when his vehicle
struck a boulder while he was traveling northbound on W .Va. Route 2, south of
Moundsville. At this location, W.Va. Route 2 is maintained by respondent in
Marshall County. The Court is of the opinion to make an award in this claim for
the reasons more fully set forth below.
The incident giving rise to this claim occurred on February 28, 1999, at
approximately 10:30 p.m. Claimant was traveling northbound on W.Va. Route 2 in
W.Va.] REPORTS
STATE COURT OF CLAIMS 249
his 1991 Chevrolet S-i pick-up truck from his place of employment. At this
location, W.Va. Route 2 is a four-lane highway with a concrete median. While
this area is not part o fthe area commonly referred to as “the Narrows” b
etween Glen Dale and McMechen, it is a known rock fall area. A warning sign is
posted in the northbound lane about three-quarters of a mile from the location
in question. Claimant drove his vehicle through an outside turn in the road,
then an inside turn in the road. Suddenly, he came upon a boulder on the travel
portion of the road. He attempted to maneuver his truck around the boulder, but
the right side of the truck struck the boulder. The damage sustained was
determined to be greater than the value of the vehicle so the vehicle was
“totaled.” Claimant has a deductible feature of $1,000.00 in his motor vehicle
insurance policy. In accordance with the Court’s decision in Sommerville et a!. vs. Div. of Highways, any recovery would be limited to this amount. See Id., 18 Ct.
CI. 110 (1991). Afterwards, claimant informed the West Virginia State Police of
the incident.
The position of respondent is that it did not have notice of the boulder on
W.Va. Route 2 in M arshall C ounty. A ccording t o ounty A dministrator Ronald
William Faulk, this area is a known rockfall area and is regularly patrolled
because of the freeze-thaw cycles that occur during the month of February. Mr.
Faulk testified that he drives this road daily and that respondent has had
numerous reports of rock removal from this portion of road. Respondent further
asserts that this area is well marked as a rockfall area.
In this claim, the evidence established that respondent had actual knowledge of
a hazardous condition on W.Va. Route 2 in Marshall County. Last
year, the Court heard two separate rockfall claims regarding this area. See Hundagen vs. Div. of Highways (unpublished
opinion issued December 6, 1999);
Williams vs. Div.
of Highways, (unpublished opinion issued December 6, 1999). In those
claims, the Court held that the actions of respondent were insufficient because
it had notice of a hazardous condition posing a threat to the traveling public.
Since then, respondent has failed to take any permanent remedial measures in
order to assure motorists may travel safely in this area. There was no showing
that respondent did anything beyond routine patrolling of W.Va. Route 2.
Consequently, there is sufficient evidence of negligence on the part of
respondent upon which to base an award.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award in this claim.
Award of $1,000.00.
OPINION ISSUED DECEMBER 20, 2000
250 REPORTS STATE
COURT OF CLAIMS [W.Va.
RUSSELL S. GARRETT
VS.
DIVISION OF HIGHWAYS
(CC-99-226)
Claimant appearedpro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
This claim was submitted to the Courtfor decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the
claim were agreed to as follows:
1. On May 25,
1999, at approximately 5:00 p.m.
claimant and his wife were traveling in his vehicle on Route 19, near
Shinnston, Harrison County. Claimant had driven his vehicle to a gravel lot on
the side of the road in order to make a telephone call. As claimant drove the
vehicle back onto the road, it struck I-beams that were hidden in nearby
vegetation on the side of the road.
2. On the date in question, respondent was responsible for the maintenance of
Route 19 in Harrison County and was aware of I-beams on the edge of the road
surface.
4. As a result of this incident, claimant’s vehicle sustained damage. The
sustained damage was in the amount of $372.12.
5. Respondent agrees that the amount of damages as put forth by the claimant is
fair and reasonable.
The Court has reviewed the facts of the claim and fmds that respondent was
negligent in its maintenance of Route 19 in Harrison County on the date of
claimant’s incident; that the negligence of respondent was the proximate cause
of the damages sustained to claimant’s vehicle; and that the amount of the
damages agreed to by the parties is fair and reasonable. Thus, claimant may
make a recovery for his sustained loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $372.12.
Award of $372.12.
OPINION ISSUED DECEMBER 20, 2000
AUSTIN T. GETZ AND IRENE M. GETZ
VS.
DIVISION OF HIGHWAYS
W.Va.] REPORTS
STATE COURT OF CLAIMS 251
(CC-99-353)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURJAM:
Claimants brought this action for vehicle damage sustained when their vehicle
struck a hole when they were traveling northbound on U.S. Route 250 between
Philippi and Belington. At this location, U.S. Route 250 is maintained by
respondent in Barbour County. The Court is of the opinion to make an award in
this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on June 9, 1999, at
approximately 7:00 p.m. Claimants were traveling northbound on U.S. Route 250,
near the southeastern corner of the Barbour County fairgrounds, in their 1999
Buick Park Avenue at a speed of about fifty to fifty-five miles per hour. They
were proceeding to their residence from the Elkins Hospital. Claimants travel
this portion of road about once a month. They had traveled on the same stretch
of road earlier in the day. Vehicle traffic was present in both directions on
the road. At this location, U.S. Route 250 is a priority two lane road with
double yellow lines indicating the center of the road surface and white lines
indicating the edges of the pavement. The road is twenty-two feet wide. As Mr.
Getz drove the vehicle in a turn in the road, he was confronted suddenly by a
hole in the road surface. The hole was about fifteen inches into the travel
portion of the road from the white line on the edge of the pavement. Mr. Getz
testified that when he saw the hole, he did not have time to maneuver the
vehicle around the hole and the passenger side of the vehicle struck the hole.
Ms. Getz testified that after the incident, she walked back to the hole, placed
her foot into the hole and observed the hole’s depth up to her ankle. The
impact burst the front passenger side tire, bent the passenger side rims, burst
the hydraulic brake hose and necessitated alignment of the vehicle. The
sustained damage exceeded the deductible feature in the amount of $1,000.00 in
claimants’ motor vehicle insurance policy. In accordance with the Court’s
decision in Summerville, et aL vs. Division of Highways, any recovery
would be limited to the amount of their deductible feature. Seeld., 18
Ct. Cl. 110 (1991).
The position of respondent is that it did not have notice of the hole on U.S.
Route 250 in Barbour County. According to Transportation Crew Supervisor II,
George Michael Erwin, he inspected the scene a few days after the incident, but
he was unable to locate the hole in question. Mr. Erwin testified that he was
aware that heavy truck traffic caused problems along the berm of the road.
These problems are patched and repaired continually.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs.
252 REPORTS
STATE COURT OF CLAIMS [W.Va.
Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold
respondent liable for road defects of this type, a claimant must prove that
respondent had actual or constructive n otice of the de fect a nd a r easonable
time t o t ake c orrective a ction. Chapman vs. Dept. of Highways, 16
Ct. Cl. 103 (1986).
In this claim, the evidence established that respondent had at least
constructive if not actual knowledge of the hole on Route 250 in Barbour
County. The Court is of the opinion that the condition of Route 250 constituted
a hazardous condition and that respondent should have been more observant of
problems on the road since this is a priority road subject to heavy truck
traffic. Consequently, there is evidence of negligence on the part of
respondent by which claimants may recover their loss.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award in this claim.
Award of $1,000.00.
OPINION ISSUED DECEMBER 20, 2000
JAMES FRANKLiN HART
AND PATRICIA ANN HART
VS.
DIViSION OF HIGHWAYS
(CC-99-56)
Larry G. Kopelman, Attorney at Law, for caimants.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for respondent.
STEPTOE, JUDGE:
Claimants brought this action for damage sustained to their real property
allegedly caused by the negligent m aintenance of the drainage system on County
Route 60/14, locally known as West Main Street, in St. Albans. This portion of
County Route 60/14 is maintained by respondent in Kanawha County. The Court is
of the opinion to make an award in this claim for the reasons more fully set
forth below.
W.Va.J REPORTS
STATE COURT OF CLAIMS 253
This claim came on for hearing on the
2 day of August, 2000, at which time the parties, counsel, and the Court met at
the property which is the subject matter of the claim for a view of the
property and the surrounding terrain. The Court observed the following:
1. The property owned by the claimants is located on the north side of County
Route 60/14 (a road commonly known as West Main Street).
2. The residence is a two-story structure with a flat front yard; a driveway on
the east side of the house extends to the front of the garage located
approximately four feet from the residence; the side yard on the west side of
the residence slopes northerly; and there is a terraced back yard with a creek
some thirty to forty feet to the rear of the back yard.
3. County Route 60/14 abuts the property at the front. There is a ditch line
across the road to the south. It had a growth of grass and weeds.
4. There is a steep drop behind the house and the garage. From the area between
the house and garage, one could look over the back yard, but it was not
possible to walk down to the back yard due to the steep drop. There was dirt
visible beneath the garage structure and the ground from the garage sloped
steeply toward the back yard.
5.
Where the driveway abuts onto County
Route 60/14, there is a culvert under the driveway with slots at the top and a
ditch from that culvert extends across the front of claimants’ property to a
hollow at the west side of their property.
6. The Court also viewed a box culvert to the west side of claimants’ property
which appeared to empty into a hollow-like area which was grown over with trees
and other vegetation.
7. The Court then drove some one hundred yards east on County Route
60/14 stopping on the south side of the road in a parking area adjacent to a
residence where the Court observed a box culvert some four feet square and at
least six feet in depth. It had dirt and logs built up around it. The outlet
pipe was described as being beneath the roadway crossing to the north side of
the road and proceeding beneath a structure across the road. The flow of water
is directed by the box culvert to the creek at the rear of the properties on
the north side of the road.
8. There is a gently sloping hillside to the south of the box culvert and this
hillside forms the main watershed to the box culvert.
9. The Court also observed the ditch line on the south side of the road which
is the beginning of the ditch line that is located on the south side of the
road and across from claimants’ property.
‘Two Judges of the Court were present for this view. On a subsequent date, the
Honorable David M. Baker, Judge, viewed the property out of the presence of
counsel and the parties.
254 REPORTS
STATE COURT OF CLAIMS [W.Va.
10. The super-elevation of the road to the south side of the road was evident
when looking west toward claimants’ property from the area of the box culvert
area.
FACTS OF THE CLAIM
In October 1990, claimants purchased their residence for the amount of $60,000.00,
less $7,000.00 for a manufactured home that was used as a trade-in. As
described a bove, claimants’ residence is s ituated on the n ortherly side o fC
ounty Route 60/14. Behind the residence, there is a drop off and the property
slopes thirty to forty feet toward a nearby creek. On the east side of the
residence is a garage with a wooden floor. Between the residence and the
garage, there had been an eight to ten feet high retaining wall, with a wire
fence on top. This retaining wall was built on two footers from the base of the
back yard. A second retaining wall is located behind the residence which wall
supports part of the terraced back yard. At the time claimants’ purchased their
home, an inspection was not conducted. However, several years later when
claimants mortgaged their home, an appraisal was performed by a bank for
fmancing purposes. No problems relating to stability of the residence or
drainage were raised by the financing institution.
At this location, County Route 60/14 is a second priority road that traverses
in a east-west direction. It is a two-lane road with double yellow lines
indicating the center of the road surface and white lines indicating the edges
of the pavement. On the south side of County Route 60/14 directly across from
the claimant’s residence is a two acre hillside. The ditch line on the south
side of the road has a three and one- half percent grade. A culvert is located
on the southwest side of the road, across from the claimant’s residence and
this culvert directs the flow of water from the ditch line beneath the roadway
into a watershed area to the west of claimants’ property. This water eventually
flows into the creek behind claimants’ property. The section of the road (about
five-hundred feet or so) to the east of the claimant’s residence is
super-elevated to the south, then curves and is super-elevated to the north.
Approximately seven hundred to eight hundred feet east of the claimant’s
residence and on the south side of the road, there is an eight acre hollow that
is approximately one-hundred-forty feet higher in elevation than the claimant’s
residence. At the bottom of this hollow area on the south side of the road,
respondent, as the former State Road Commission, installed a box culvert four
feet square and seven to eight feet deep. About one foot of sediment has
collected in the bottom of this culvert.
At the time claimants purchased the property, they were aware that the
residence was situated in a low lying area, but they did not observe any water
damage to the structure or evidence of water drainage problems on the property.
According to claimant Patricia Ann Hart, the first signs of water problems
occurred in February of 1991. Respondent was contacted about these problems and
it conducted an investigation of the complaint. Since that time, Ms. Hart
testified that respondent has been contactedtwice eachyear to cleanthe ditch
onthe south side ofthe road.
W.Va.} REPORTS
STATE COURT OF CLAIMS 255
Claimant James Franklin Hart testified
that since 1990, respondent has cleaned the ditch three times. However, the
claimants continued to experience drainage problems.
The problems with water flowing onto claimants’ property continued to increase
in nature until one occasion when the force of the water flowing across their
driveway knocked down the retaining wall between the garage and the residence.
Afterwards, the claimants began to video tape2 their drainage problems. On two
occasions, July 28, 1997 and June 12, 1998, the claimants video taped
significant water flowing across the road from the ditch line on the south side
onto their property. The video depicted water flowing in a southeast direction
from the ditch on the south side of the road. On another occasion, the force of
the water flowing across the road from the ditch line actually broke a basement
window at the front of the house and flooded the basement. Mr. Hart described
the water flow as “a waterfall where it swept under our porch.” A video tape
from July 12, 2000, depicted vegetation and debris in the ditch line, which
debris included such items as a log and a road sign.
As a result of this water drainage, the foundations of the residence and garage
are deteriorating. According to the testimony of the claimants, prior to the
drainage problems, the garage was supported adequately by its piers with the
ground being level beneath the garage. The force of the water flowing across
the driveway and beneath the garage has washed away about one-third of the dirt
base. Approximately two-thirds of the garage floor now has dirt supporting it.
The piers are the only support for the garage walls. Currently, the garage
cannot be used to park vehicles, but is only safe enough for storage purposes.
According to Bob Bamett. a contractor hired by claimants to provide an estimate
for repair. the property has sustained damage in the amount of $23,500.00. He
determined that the retaining wall between the residence and the garage should
be replaced; that the foundations of the two structures should be repaired; and
that there should be a retaining wall in the back yard to provide support for
the slope. While the claimants had a homeowner’s insurance policy in effect at
the time of the sustained damage, it did not provide coverage for the flood
damage that has occurred.
The position of respondent is that it was not negligent in the maintenance of
the drainage system on County Route 60/14. In late 1998 or early 1999,
Maintenance Assistance David Charles Starcher and Highway Assistant
Administrator James C. Markie went to the claimant’s residence to discuss the
drainage problem with them. Mr. Starcher testified that he observed the ditch
on the south side of the road to be seventy to eighty percent functional. The
County Supervisor was contacted to removed the debris from the drain. About two
weeks
2 These
video tapes were produced for viewing by the Court at the hearing.
256 REPORTS
STATE COURT OF CLAIMS [W.Va.
after this meeting, respondent, on January 25, 1999, installed a twenty foot pipe, with a three inch
slot across the top, in the claimant’s driveway. Several days later, an
additional ten foot section of pipe was added to the outlet end of the pipe in
order to expand the turning radius of the driveway. An eighteen to twenty-four
inch deep ditch was dug from the end of the installed pipe, proceeding west,
toward the end of the claimant’s property. Also, Mi-. Starcher stated that
respondent maintains the ditch on a three year cleaning cycle and its employees
have mowed the vegetation in the southern ditch twice since the installation of
the pipe and ditch. Since the completion of these projects, respondent has not
received any further complaints from claimants regarding drainage problems on
their property.
According to Dr. George Alan Hall, the Standards Manuals and Research Engineer
and respondent’s drainage expert for this particular claim, a topographical map
from the United States Geological Survey indicates the area in which claimants’
property is located on County Route 60/14 has a defined drainage area. Dr. Hall
opined that the water problem being experienced by claimants actually was
created by other landowners without respondent’s knowledge. From 1996 to 1998,
the property on the southwest hillside for which the box culvert described
herein before was timbered and the hollow had been filled. In addition, another
landowner near the same hollow installed a twenty-four inch corrugated plastic
pipe, which created a hole where a box culvert went under the road. Rock, soil
and logs had been piled up around t his b ox c ulvert t hus preventing w ater
from flowing in to the b ox c ulvert. Limbs that were on the ground washed down
into the ditch line and also impeded the flow of water to box culvert.
Moreover, Dr. Hall believes that the super-elevation and steep grade of the road
propels water from the ditch line on the south side of the road to cross the
road and flow onto claimants’ property. Thus, the ditch line on the south side
of the road was unable to carry storm water flow. The ditch line is now serving
two drainage areas. According to Dr. Hall’s calculations, the drainage system
is adequate in design for the south side of the road, but inadequate for the
excess water generated by the hollow area. This situation has resulted in
claimants as well as other landowners adjacent to the culvert to experience
drainage problems on their properties. Further, Dr. Hall explained that the
vegetation in the ditch line is normal and necessary because it prevents soil
erosion by slowing the flow of the water. However, Dr. Hall admitted that the
log and debris in the ditch line at the time of the severe water problems
described by claimants could also impede the flow of water.
ANALYSIS AND CONCLUSIONS
OF LAW
The Court has held that respondent has
a duty to provide adequate drainage of surface water, and drainage devices must
be maintained in a reasonable state of repair. Naught vs. Dept. of Highways, 13 Ct. Cl. 237 (1980). In claims of this nature, the
Court w ill e xamine whether respondent negligently failed to protect a
claimant’s property from foreseeable damage. Rogers vs. Div. of Highways, 21
Ct.
W.Va.] REPORTS
STATE COURT OF CLAIMS 257
Cl. 97 (1996).
In this claim, the evidence establishes that respondent failed to maintain its
drainage system on County Route 60/14 in Kanawha County in a reasonable state
of repair. Apparently, another landowner had altered respondent’s drain located
southeast of claimants’ residence and respondent asserts that it had no
knowledge of those actions. However, the evidence establishes that respondent
was informed of a drainage problem affecting claimants’ property in February
1990 and the severity of the problem increased in nature until 1998. The
evidence further establishes that in response to complaints, respondent cleaned
the ditchline three times since 1990, before taking the step of installing a
drain pipe with a slot and creating a ditch along the north side of the road in
January 1999 to alleviate the water problems being experienced by claimants.
Moreover, the video tape evidence established that the ditch on the southern
side of the road was full of debris, including a log and a road sign. This
situation significantly contributed to water flowing in a “sheet” from the
south side of the road onto claimants’ property. The Court is of the opinion
that from 1990 to 1998, respondent’s employees had reason to know of a
significant amount of water flowing across the road surface during rainy
periods. Respondent’s employees travel on this road on a regular basis and
should have been aware of the drainage problems in the area. There were
sufficient complaints for respondent’s employees to investigate the area
further for potential drainage problems. Respondent had constructive if not
actual notice of a drainage problem in the area. While the Court is mindful
that the clear-cutting of another property owner potentially contributed to the
water flow problem, respondent is not excused from its failure to take notice
of the formation of an obvious hazard occurring in this area.
When respondent’s employees inspected the area on several occasions, they
apparently missed the altered box culvert to the east of claimants’ property
and that debris was n ot c leaned from the dit chline. T he C ourt is o ft he
opinion that the drainage system was not kept in a reasonable state of repair.
Furthermore, respondent should have been more diligent in preventing other
property owners from altering its drains. If the box culvert and the ditch line
in the area had functioned properly, the effect of any excess water flowing onto
claimants’ property would have minimized. As such, respondent failed to protect
claimants’ property from excessive water flowing from the south side of the
road. Thus the Court has reached the conclusion that the actions of respondent
constituted negligence by which claimants may make a recovery in this claim.
Notwithstanding this fmding of negligence on the part of respondent, the Court
is not inclined to make an award in the amount of $23,500.00. The Court has
determined that a portion of the recovery requested by claimants is for the
betterment of their property. As such, the Court will make an award which
places claimants in as good a position which they would have been but for the
negligence of respondent. Therefore, the Court has determined that the amount
of $23,500.00 be reduced to the
258 REPORTS STATE COURT OF CLAIMS [W.Va.
amount of $16,000.00, which the Court believes to be a fair and reasonable
award for the loss sustained as a result of respondent’s negligence.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimants
in the amount of$16,000.00 in this claim.
Award of$l6,000.00.
OPINION ISSUED DECEMBER 20, 2000
PENNIE L. JONES AND KENNETH A. JONES
VS.
DIVISION OF HIGHWAYS
(CC-99-40 1)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage when their vehicle struck a
rock on the side of the road while claimant Pennie L. Jones was traveling on
County Route 5, locally known as Falls Creek Road in Tornado. At this location,
County Route 5 is maintained be respondent in Lincoln County. The Court is of
the opinion to make an award for the reasons more fully stated below.
The incident giving rise to this claim occurred on September 24, 1999, at
approximately 10:00 a.m. Claimant Pennie L. Jones was traveling on County Route
in her and her husband’s 1993 Chevrolet Astro Van at a speed of about twenty
miles per hour. She was proceeding from her residence to her place of
employment in S t. A lbans. A t this 1 ocation, C ounty Route 5 is a two-lane a
sphalt road w ith double yellow lines indicating the center of the road
surface. The road has a width of about sixteen to eighteen feet. As she drove
their vehicle on the road, she observed a rock about forty feet in front of the
vehicle on the edge of the road. An oncoming large logging truck forced her to
drive to the berm of the road where the rock was located. Claimant’s vehicle
struck a rock that was on the edge of the road surface. Photographic evidence
adduced by claimants established that the rock in question was embedded
partially in the pavement. The impact burst both passenger side tires and bent
the rims. The paint on the passenger side of the vehicle also sustained minor
scratching and chipping. The sustained damage exceeded the deductible feature
of $500.00 in claimants’ motor vehicle insurance policy. In accordance with the
Court’s decision in Summerville et al.
vs. Division of Highways, any recovery
would
W.Va.] REPORTS
STATE COURT OF CLAIMS 259
be limited to this amount. See Id., 18 Ct. Cl. 110 (1991).
Afterwards, claimant Pennie L. Jones notified respondent of the incident.
The position of respondent is that it did not have notice of the rock on the
berm of County Route 5 in Lincoln County. According to County Highway
Administrator II, Larry P. Pauley, there are drainage problems in the area. In
response, respondent placed large rocks in the ditch along the road. In 1998 or
1999, the road surface of County Route 5 w as resurfaced and widened.
However, Mr. Pauley was unaware of how or when the rock in question was
embedded partially into the edge of the pavement. He did acknowledge that the
rock should not be where it is located, but should be in the ditch along the side
of the road. Mr. Pauley further testified that he travels this road on a
regular basis and observes the drains. During these trips on the road, he
testified that he did not observe the rock embedded on the edge of the road
surface. Respondent asserts that it had no prior information regarding the rock
in question.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims,
130 W.Va. 645; 46 S.E.2d
81(1947). In order to hold respondent liable for road defects of this type,
claimant must prove that respondent had actual or constructive notice oft he de
feet and a reasonable time to take corrective a ction. Chapman vs. Dept of
Highways, 16 Ct. Cl. 103 (1986). Moreover, respondent has a duty to ensure
that an independent contractor completes a project in such a manner that
travelers will not be put into a position of unreasonable danger. See Tolley
vs. Division of Highways, 22 Ct. Cl. 12 (1997) and Acree vs. Division of
Highways, 22 Ct. Cl. 137 (1998).
In the present claim, the Court is of the opinion that respondent had actual
knowledge of the rock on the edge of pavement on County Route 5 in
Lincoln County. The rock in question is an obvious hazard and respondent should
have been aware of the rock on the edge of the pavement during the paving
project in 1998 or 1999. During this project, the on-site project inspector for
respondent had a duty to prevent such hazards from occurring. Consequently, there
is evidence on the part of respondent upon which to base an award.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award in this claim.
Award of $500.00.
OPINION ISSUED DECEMBER 20, 2000
JEFF MOZINGO
VS.
260 REPORTS STATE
COURT OF CLAIMS [W.Va.
DIVISION OF HIGHWAYS
(CC-99-3 81)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Cour for decision upon a Stipulation entered
into by the parties wherein certain facts and circumstances of the claim were
agreed to as follows:
1. On August 5, 1998, claimant was traveling westbound in his vehicle
on Route 67 McKinleyville, Brooke County. Claimant drove his vehicle onto the
berm of the road and the tire of the vehicle struck a broken sign post stub.
2. On the date in question, respondent was responsible for the maintenance of
Route 67 in Brooke County and was aware of the broken sign post stub on the
berm.
4. As a result of this incident, the vehicle tire burst. The sustained damage
was in the amount of $95.85.
5. Respondent agrees that the amount
of damages as put forth by the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Route 67 in Brooke County on the date of
claimant’s incident; that the negligence of the respondent was the proximate
cause of the damages sustained to claimant’s vehicle; and that the amount of
the damages agreed to by the parties is fair and reasonable. Thus, claimant may
make a recovery for his sustained loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $95.85.
Award of $95.85.
OPINION ISSUED DECEMBER 20, 2000
OHIO VALLEY MEDICAL CENTER
VS.
DIVISION OF CORECTIONS
(CC-00-436)
Claimant appeared pro Se.
Joy M. Bolling, Assistant Attorney General, for respondent.
W.Va.] REPORTS
STATE COURT OF CLAIMS 261
PER CURIAM:
This c laim was s ubmitted for de cision b ased upon the allegations in the
Notice of Claim and respondent’s Answer.
Claimant seeks payment in the amount of $95,127.58 for medical services
rendered to an inmate in the custody of respondent in Ohio County. Respondent,
in its Answer, admits the validity of the claim, but states that there were
insufficient funds in its appropriation for the fiscal year in question from
which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et aL vs.
Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED DECEMBER 20, 2000
FRED SAVAGE, ADMiNISTRATOR OF
THE ESTATE OF LUTHER SAVAGE
Vs.
DIVISION OF HIGHWAYS
(CC-96-447)
Ward Morgan, Attorney at Law, for claimant.1
Andrew F. Tarr, Attorney at Law, for respondent.
BAKER, JUDGE:
Claimant brought this action for damae sustained to real property allegedly
caused by the negligent maintenance o ft he drainage s ystem on C ounty Route
1, locally known as West Virginia Avenue in Panther, McDowell County. At this
location, County Route 1 is maintained by respondent. This claim was bifurcated
at the initial hearing and the issue of liability was heard by the Court; the
parties were later informed that the Court was of the opinion that there was
liability on the part of the respondent; thereafter, several attempts were made
by the Clerk of the Court to schedule a hearing on the issue of damages. The
claim recently was set for hearing on
1At the initial hearing of this claim on November 7, 1999, claimant Luther
Harmon Savage was represented by Abishi C. Cunningham. Sometime later Donald
L. Pitts became counsel of record. Currently, counsel of record in this claim
is
Ward Morgan.
262 REPORTS STATE
COURT OF CLAIMS [W.Va.
November 16, 2000, at which time the Court received and filed a stipulation
wherein the parties agreed to the amount of damages. The Court is now prepared
to make an award in this claim for the reasons more fully set forth below.
On June 5,
1989, Luther Harmon Savage and Helen
Savage purchased the subject property in Panther, McDowell County.’ The
property is situated downhill from County Route 1. At this location, County
Route 1 is a third priority, one-lane asphalt road. Beginning in July 1994, Mr.
and Mrs. Savage began to experience drainage problems from water on County
Route 1. On one occasion in July 1994, the Savages experienced substantial
amounts of water flowing onto their property. A drain which is located
fifty-two feet from the Savage property allegedly became clogged and the water
flowed down the road, proceeded down the driveway and into the yard. Mr. Luther
Savage asserted that the water turned his once grassy yard into a “mud hole.”
The water also caused the foundation of his residence to sink two to four
inches. Mr. Savage placed about fifteen tons of gravel in his yard, but the
water flowing into his yard washes it down the side of the mountain to the rear
of the property. On several occasions, Mr. Savage had to resod the grass in his
yard. On one occasion, there was a landslide which broke off part of the road
and deposited debris onto the property. He stated that the water created holes
in his yard. Mr. Savage contacted respondent by telephone and in person
regarding the problems caused by the water flowing onto his property.
Thereafter, respondent reconstructed the drainage system and placed gabion
baskets around the drain. A truck-load of debris was removed from the property.
Respondent attempted to clean out the drain pipe, but according to Mr. Savage,
it remained stopped up. In addition, respondent ditched the side of County
Route I at the b ase o ft he mountain in an attempt t o p revent w ater from
flowing onto the Savage property. Mr. Savage testified that he had to
personally clean out the drain pipe and the ditchline on several occasions.
Since then, a significant amount of water flow has cut an area six to eight
inches wide across the property. This area is about ten feet from where water
originally cut a swath across the property. However, when the drain pipe is
clean and the ditchline is clear, the water flows through the drain and
claimants have no problems on their property. Mr. Savage tried to keep the
drain pipe and the ditchline clean himself in an attempt to protect his
property from the excessive water flowing from the road.
The position of respondent was that it was not negligent in its maintenance of
the drainage system o n C ounty Route 1. According to Crew Leader Kenneth
Bowles, County Route 1 is a third priority road. The area in question
experienced
Since the November 7, 1996, hearing, Mrs. Savage passed away and Mr. Savage was
appointed as the administrator of her estate. Thereafter, Mr. Savage
passed away, and Fred Savage was appointed as the administrator of his estate.
W.Va.] REPORTS
STATE COURT OF CLAIMS 263
flooding over the period of July 11 and 12, 1994. At that time, respondent tried
to conduct repairs on damaged roads, based on priority. Mr. Bowles asserted
that the damage sustained to the Savage property was a result of sudden flood
waters overflowing the ditch. Prior to this time, employees of respondent dug a
one foot deep ditch and checked the drains. Mr. Bowles further testified that
the drains functioned properly.
The Court has held that respondent has a duty to provide adequate drainage of
surface water, and drainage devices must be maintained in a reasonable state of
repair. Haught vs. Dept. of Highways, 13 Ct. Cl. 237 (1980). In claims
of this nature, the Court will examine whether respondent negligently failed to
protect a claimant’s property from foreseeable damage. Rogers vs. Div. of
Highways, 21 Ct.
Cl. 97 (1996).
The Court is of the opinion that respondent was negligent in its maintenance of
County Route I in McDowell County. Respondent had actual notice of the
excessive water problems occurring on the Savage property. Steps were taken by
respondent to correct the problem, but the Savage property sustained damage
thereto prior to the time that respondent took the corrective measures.
Consequently, claimant herein may recover the sustained loss.
As a result of the events described above, the Savage property sustained damage
which originally was stated in the claim to be in the amount of $9,000.00.
However, as noted herein above, the parties have agreed to stipulate the
damages in the amount of $4,000.00. Respondent agrees that the stipulated
amount of damages as put forth by the parties is fair and reasonable.
In accordance with the fmdings of fact as stated herein above, the Court is of
the opinion to and does make an award in this claim.
Award of $4,000.00.
OPINION ISSUED DECEMBER 20, 2000
STEPHANIE GALE STURM
VS.
DIVISION OF HIGHWAYS
(CC-99-409)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
264 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claimant brought this action for vehicle damage sustained when her vehicle
struck a piece of concrete while she was traveling westbound on 1-64 between
Nitro and Cross Lanes. At this location, 1-64 is maintained by respondent in
Kanawha County. The Court is of the opinion to make an award in this claim for
the reasons more fully set forth below.
The incident giving rise to this claim occurred on September 30, 1999, at
approximately 11:00 p .m. C laimant Stephanie Gale S turm was driving her 1992
BMW 325 when she entered 1-64 at the Cross Lanes exit near a construction site
with a break in the concrete barriers. She was traveling at a speed of about
fifty-five miles per hour. Other traffic was present on the road. Claimant
maneuvered her vehicle into the passing lane in order to pass a slower moving
vehicle. Suddenly, she noticed a piece of concrete about twenty feet away from
the vehicle in her lane of travel. The piece of concrete was positioned near a
break in the wall near a construction site. The vehicle struck the piece of
concrete, which had pieces of re-bar embedded into it. The impact burst all
four tires and damaged the undercarriage of the vehicle. During an attempt to
move the vehicle, the motor was damaged. Afterwards, claimant informed 911 of
the incident, but she stated that there was no response. The sustained damage
exceeded the $500.00 deductible feature in claimant’s motor vehicle insurance
policy. In accordance with the Court’s decision in Summerville et at. vs.
Division of Highways, any recovery would be limited to this amount. See Id.,
18 Ct. Cl. 110
(1991).
The position of respondent is that it did
not have notice of the concrete on I- 64 in Kanawha County. According to Crew
Supervisor Michael Escue, a contractor for respondent was conducting a widening
project at the location in question. Respondent was supposed to have a project
observer at the construction site to supervise the work. Mr. Escue further
testified that the breaks in the concrete barriers allow trucks ingress and
egress in order to remove debris from the site. Prior to claimant’s incident,
respondent asserts that it had no information regarding the road debris.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent
liable for road defects of this type, claimant must prove that respondent had
actual or constructive notice oft he defect and a reasonable time to take c
orrective a ction. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).
Moreover, respondent has a duty to ensure that an independent contractor
completes a project in such a manner that travelers will not be put into a
position of unreasonable danger. See Toltey vs. Division of Highways, 22
Ct. Cl. 12 (1997) and Acree vs. Division of Highways, 22 Ct. Cl. 137 (1998).
In this claim, the evidence established
that respondent had constructive if not actual knowledge of the road debris on
1-64 in Kanawha County. The Court is of
W.Va.J REPORTS
STATE COURT OF CLAIMS 265
the belief that the debris in question came from the nearby construction
site. Respondent’s project observer had a duty to keep the site clear of
hazards to the traveling public. Consequently, there is evidence of negligence
on the part of respondent upon which to base an award.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award in this claim.
Award of $500.00.
OPINION ISSUED DECEMBER 20, 2000
WV REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY
VS.
DIVISION OF CORRECTIONS
(CC-00-447)
Chad Cardinal, Attorney at Law, for claimant.
Joy M. Boiling, Assistant Attorney General, for respondent.
PER CURIAM:
This c laim was s ubmitted for decision b ased upon the allegations in the
Notice of Claim and the respondent’s Answer.
Claimant, Regional Jail and Correctional Facility Authority, provides and
maintains the Eastern Regional Jail, the Central Regional Jail, the South
Central Regional Jail, the Southern Regional Jail, the Southwestern Regional
Jail, and the Northern Regional Jail as facilities for the incarceration of
prisoners who have committed crimes in various counties. Some of the prisoners
held in these regional jails have been sentenced to facilities owned and maintained
by the respondent, Division of Corrections. Claimant brought this action in the
amount of $4,583,896.00, to recover the costs of housing and providing
associated services to prisoners who have been sentenced to a State penal
institution, but due to circumstances beyond the control of the claimant, these
prisoners have had to remain in the regional jails for periods of time beyond
the dates of the commitment orders.
Respondent filed an Answer admitting the validity of the claim and that the
amount of the claim is fair and reasonable.
This Court has determined in prior claims by claimant for the cost of housing
inmates that respondent is liable to claimant for these costs, and the Court
has made the appropriate awards. This issue was considered by the Court
previously in the claim of County Comm ‘n. of Mineral County v. Div. of
Corrections, 18 Ct. Cl.
266 REPORTS STATE
COURT OF CLAIMS [W.Va.
88 (1990), wherein the Court held that the respondent is liable for the cost of
housing inmates.
In view of the foregoing, the Court makes an award to claimant in the amount of
$4,583,896.00.
Award of $4,583,896.00.
OPiNION ISSUED DECEMBER 20, 2000
RANSOM WILEY
VS.
DIVISION OF HIGHWAYS
(CC-99-3 76)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for damage sustained to his residence when a tree
branch from a tree on respondent’s right of way on W.Va. Route 37 fell onto his
residence located in Ranger. At this location, W.Va. Route 37 is maintained by
respondentin Lincoln County. The Court is of the opinion to make an award in
this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on August 19, 1999, at approximately
2:00 to 3:00 p.m. At this location, respondent has a sixty foot right of way.
The right of way extends thirty feet from the center of the road surface.
During a severe storm, a tree branch from a tree on respondent’s right of way
on W.Va. Route 37 fell onto claimant’s residence. The tree in question was
twenty feet from the center of the road surface. The impact put a hole in the
roof, ripped off some of the overhang, ripped off some of the siding on the
residence and damaged a meter base. The tree branch also damaged nearby power
lines. The tree was adjacent to his residence about fifty-five to sixty feet
from his residence and six feet from the paved portion of road. Prior to this
incident, claimant’s son, Ronald Wiley, had contacted respondent regarding the
tree in question. In the summer of 1997, Ronald Wiley had contacted
respondent’s Administrative Assistant Christopher K. Sowards in Huntington
regarding the tree. Mr. Sowards testified that he contacted County Highway
Administrator II, Larry P. Pauley, to investigate the situation. Mr. Sowards
did not travel to the location in question. The tree was confirmed to be on
respondent’s right of way, but it was entangled in the power lines. Afterwards,
Mr. Sowards informed Mr. Wiley that he had to contact the power company
regarding removal of the tree. The sustained damage was in excess of claimant’s
$1,000.00
W.Va.J REPORTS
STATE COURT OF CLAIMS 267
deductible feature in his homeowner insurance policy. In accordance with the
Court’s decision in Summerville et at. vs. Division of Highways, any
recovery would be limited to the amount of the deductible feature. See Id., 18
Ct. Cl. 110 (1991).
The position of respondent is that it did not have notice of the hazardous
condition of the tree on W.Va. Route 37. According to Mr. Pauley, when he
inspected the tree, it appeared to be alive. However, the tree was in the power
line and he stated that respondent did not have the expertise to trim the tree.
He did not believe that the tree was a hazard, and he did not contact the power
company. Mr. Pauley further testified that the trees in the power lines should
be allowed to fall, then the power company should be contacted in order to
remedy the situation.
The Court has held in prior claims that when the evidence establishes that
respondent has notice of a hazard, such as a tree, and a reasonable opportunity
to remove it, respondent may be held liable. Jones v. Division of Highways, 21
Ct. Cl.
445 (1995).
In the present claim, the evidence established that respondent had actual
knowledge of the hazardous condition of the tree in Lincoln County. Respondent
should have taken affirmative action once it received notice of the tree rather
than waiting for it to fall. Consequently, there is negligence on the part of respondent
by which to base an award.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award in this claim.
Award of$1,000.00.
OPINION iSSUED DECEMBER 29, 2000
DONNA L. CURREY
VS.
DEPARTMENT OF EDUCATION
(CC-00-355)
Claimant represents self.
Joy M. Bolling, Assistant General Counsel, for respondent.
PER CURIAM:
This c laim was s ubmitted for de cision b ased upon the allegations in the
Notice of Claim and respondents Answer.
Claimant seeks payment in the amount of $971.90 in tuition reimbursement.
Respondent, in its Answer, admits the validity of the claim, but states that
the amount of $882.00 is the correct amount due and owing to claimant.
Respondent also states
268 REPORTS
STATE COURT OF CLAIMS [W.Va.
that there were insufficient funds in its appropriation for the fiscal year in
question from which to pay the claim. Claimant agrees that the amount owed to
her is the amount of $882.00 and she agrees to accept that amount as
satisfaction for the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et al. vs.
Dept. of Mental Health, 8 Ct.Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED DECEMBER 29, 2000
FERGUSON BROTHERS PLUMBING
AND HEATING COMPANY
VS.
DIVISION OF CORRECTIONS
(CC-00-467)
Claimant appeared pro se.
Joy M. Boiling, Assistant Attorney General, for respondent.
PER CURIAM:
This c laim w as s ubmitted for de cision b ased upon the allegations in the
Notice of Claim and respondent’s Answer.
Claimant seeks $133.75 for air-conditioner repair and a spring
inspection at the Huntington WorklStudy Release Center, a facility of
respondent in Cabell County. The documentation for these services was not
processed for payment within the appropriate fiscal year; therefore, claimant
has not been paid. In its Answer, respondent admits the validity of the claim
as well as the amount, and states that there were sufficient funds expired in
the appropriate fiscal year from which the invoice Cabell County could have
been paid.
Accordingly, the Court makes an award to claimant in the amount of
$133.75.
Award of $133.75.
OPINION ISSUED JANUARY] 7, 2001
CORRECTIONAL MEDICAL SERVICES, INC.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 269
VS.
DIVISION OF CORRECTIONS
(CC-OO-474)
Claimant appeared pro Se.
Joy M. Boiling, Assistant Attorney General, for respondent.
PER CURIAM:
This c laim was s ubmitted for de cis ion b ased upon the allegations in the
Notice of Claim and respondent’s Answer.
Claimant seeks payment in the amount of $577,363.04 for medical services rendered to inmates in the
custody of respondent at Huttonsville Correctional Center, Pruntytown
Correctional Center, Denmar Correctional Center, and Mount Olive Correctional
Center, all facilities of the respondent. Respondent, in its Answer, admits the
validity of the claim, but states that the correct amount owed to claimant is
$543,957.81. The respondent further states that the portion of the claim denied
is for interest in the amount of $33,405.23, and there were insufficient funds
in its appropriation for the fiscal year in question from which to pay the
claim. Claimant, having reviewed the Answer of the respondent, agrees that it
will accept the amount of $543,957.81 as full and complete satisfaction of its
claim.
This Court would have denied the request for interest based upon the provisions
in W.Va. Code §
14-2-12 which states in part 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.” There is no provision for interest in the claim herein.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
reconmiended based upon the decision in Airkem Sales and Service, et aL vs.
Dept. oJMental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED JANUARY17, 2001
MONTGOMERY GENERAL HOSPITAL
VS.
DIVISION OF CORRECTIONS
(CC-00-488)
Claimant appeared pro Se.
270 REPORTS
STATE COURT OF CLAIMS [W.Va.
Joy M. Boiling, Assistant Attorney General, for respondent.
PER CURIAM:
This c laim was s ubmitted for de cision b ased upon the allegations in the
Notice of Claim and respondent’s Answer.
Claimant seeks payment in the amount of $51,070.55 for medical services
rendered to several inmates in the custody of respondent at Mt. Olive
Correctional Center, a facility of the respondent. Respondent, in its Answer,
admits the validity of the claim, and further states that there were
insufficient funds in its appropriation for the fiscal year in question from
which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et aL vs.
Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED JANUARY17, 2001
WOOD COUNTY COMMISSION
VS.
DIVISION OF CORRECTIONS
(CC-OO-486)
Ginny Conley, Prosecuting Attorney, for claimant county.
Joy M. Boiling, Assistant Attorney Genel, for respondent.
PER CURIAM:
This c laim w as submitted for de cision b ased upon the allegations in the
Notice of Claim andrespondent’s Answer.
Claimant, Wood County Commission, is responsible for the incarceration of
prisoners who have committed crimes in Wood County, but have been sentenced to
facilities owned and maintained by respondent, Division of Corrections.
Claimant brought this action to recover $60,919.50 in costs for providing
housing and/or medical care to prisoners who have been sentenced to a State
penal institution, but due to circumstances beyond the control of the county,
these prisoners have had to remain in the custody of the county for periods of
time beyond the date of the conunitment order.
W.Va.} REPORTS
STATE COURT OF CLAIMS 271
The Court previously determined in County Comm ‘n. of Mineral County vs.
Div. of Corrections, 18 Ct. Cl. 88 (1990), that respondent is liable to
claimant for the cost of housing and providing medical care to inmates
sentenced to a State penal institution.
Pursuant to the holding in Mineral County, respondent reviewed this
claim to determine the invoices for the services for which it may be liable.
Respondent then filed an Answer admitting the validity of the claim in the amount
of $60,919.50. Claimant agrees that this is the correct amount to which it is
entitled.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $60,919.50.
Award of $60,919.50.
OPINION ISSUED JANUARY19, 2001
VINCENT W. BROOKS AND JOHNNA BROOKS
VS.
DIVISION OF HIGHWAYS
(CC-00- 143)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage sustained when their vehicle
struck a cut-away portion of road on the edge of County Route 67/1 in Beech
Bottom. At this location, County Route 67/1 is maintained by respondent in
Brooke County. The Court is of the opinion to deny this claim for the reasons
more fully set forth below.
The incident giving rise to this claim occurred on the evening of March 16,
2000. Claimant Vincent W. Brooks was traveling on County Route 67/1 in his and
his wife’s 1992 Mercury Topaz. Claimant frequently travels this portion of road
and was on the road earlier in the day. At this location, County Route 67/1 is
a two lane asphalt road. On the day in question, respondent was conducting a
ditching project in the area in question. Claimant maneuvered his vehicle onto
the berm in order to pull into a local grocery store which was at a higher
elevation than the road. As the vehicle crossed the berm into the store parking
lot, it struck a cut-away portion of the berm. Claimant testified that he did
not observe any warning signs on the road. The impact damaged the exhaust
system of the vehicle. The sustained damage was in the amount of $92.17.
272 REPORTS STATE
COURT OF CLAIMS [W.Va.
The position of respondent is that it was not negligent in the maintenance of
County Route 67/1. According to County AdministTator Sheldon Beauty, respondent
was conducting a ditching project in order to remedy a drainage problem.
Respondent was working on its right of way. Mr. Beauty testified that the
store- owner had been contacted but refused to allow respondent to cut the slope
of his driveway leading to his store. During the project, respondent had
flaggers present and barrels were placed along the construction site.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent liable
for road defects of this type, claimants must prove that respondent had actual
or constructive n otice oft he de fect and a r easonable time t o t ake c
orrective a ction. Chapman vs. Dept.
of Highways, 16 Ct. Cl. 103 (1986).
In this claim, the evidence failed to establish that respondent was negligent
in its maintenance of County Route 67/1. Respondent was prevented by the store-
owner from completing properly the drainage project. Under the circumstances,
the Court is of the opinion that respondent took adequate measures to warn the
traveling public of potential problems entering the store driveway. While the
Court is sympathetic with claimant Vincent W. Brooks’ situation, the fact
remains that there is insufficient evidence of negligence on the part of
respondent upon which to base an award.
In accordance with the fmding of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY 19, 2001
LEWIS M. COPEN AND
GATHALEE GALE COPEN
VS.
DIVISION OF HIGHWAYS
(CC-00-209)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage sustained when their vehicle
was struck by a falling rock while claimant Gathalee Gale Copen was
W.Va.] REPORTS
STATE COURT OF CLAIMS 273
traveling northbound on Route 20 near Hinton. At this location, Route 20 is
maintained by respondent in Summers County. The Court is of the opinion to deny
this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on March 18, 2000 at
approximately 11:00 a.m. Claimant Gathalee Gale Copen was traveling northbound
on Route 20 in their 1989 Buick Park Avenue at a speed of about sixty miles per
hour. She was proceeding from the Summers County Hospital towards her residence
in Charmco. At this location, Route 20 is a first priority, two-lane road with
double yellow lines indicating the center of the road surface and white lines
indicating the edge of the pavement. The road has two twenty foot lanes and two
to six foot berms. Along this portion of road, there is a “Falling Rock” sign
on the side of the road in each direction of travel. Claimant testified that
she travels this road regularly and did not recall observing any “Falling Rock”
signs along the road. As claimant drove her vehicle on the road, a rock fell
from the embankment, striking the vehicle and then bouncing into a ditch along
the side of the road. The rock was about one to one and one-half feet in
diameter. After the incident, claimant maneuvered the vehicle to the side of
the road. Charles Cales, who was following behind claimant in another vehicle,
witnessed the incident and stopped to assist her. The impact damaged the front
of the vehicle. The sustained damage was estimated in the amount of $750.48.
The position of respondent is that it did not have notice of a rockfall on
Route 20 in Sunmiers County. According to Highway Administrator Billy Joe
Lilly, this portion of road is a known rockfall area and warning signs have
been in place for about twelve years. Prior to this incident, respondent did
not have any report of a rockfall in the area.
The Court has consistently held that the unexplained falling of rock or rock
debris on the road surface is insufficient to justify an award. Mitchell vs.
Division of Highways, 21 Ct. Cl. 91(1996); Hammond vs. Dept. of
Highways, 11 Ct. Cl. 234 (1977). In order to establish liability on behalf
of respondent, the evidence must establish that respondent had notice of the
dangerous condition posing a threat of injury to property and a reasonable time
to take suitable action to protect motorists. Alkfre vs. Division of
Highways, 21 Ct. Cl. 179 (1997).
In this claim, the evidence failed to establish that respondent had not taken
adequate measures to protect the safety of the traveling public on Route 20 in
Summers County. While the Court is sympathetic to claimants’ plight, the fact
remains that there is no evidence of negligence on the part of respondent upon
which to base an award.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
274 REPORTS STATE
COURT OF CLAIMS [WNa.
OPINiON ISSUED JANUARY19, 2001
NORMAN CROUSE AND LILLIE MAE CROUSE
VS.
DIVISION OF HIGHWAYS
(CC-00-56)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when their son-
in-law was driving their vehicle and it struck a rock. He was traveling northbound
on Route 10 between Cyclone and Davin. At this location, Route 10 is maintained
by respondent in Wyoming County. The Court is of the opinion to deny this claim
for the reasons more fully set forth below.
The incident giving rise to this claim occurred on December 28, 1999, at
approximately 6:30 to 7:00 p.m. Claimants’ son-in-law Wiley Russell Martin was
operating their 2000 Dodge Neon at a speed of about forty-five to fifty miles
per hour. Mr. Martin’s wife, Tammy Sue Martin, was seated in the front
passenger seat. Claimant Lillie Mae Crouse and her son, Curtis Crouse, were
seated in the back seats. No traffic was present on the road. At this location,
Route 10 is a paved, two-lane road. The road is marked with double yellow lines
indicating the center of the road surface and white lines indicating the edges
of the road surface. Mr. Martin testified that he did not observe any “Falling
Rock” signs on the road. As Mr. Martin was driving the vehicle through a turn
and was coming out of the turn, he was confronted immediately by a large rock
in the travel portion of the road. The rock was located about two feet from the
white line on the edge of the road surface. Mr. Martin was unable to maneuver
the vehicle around the rock and the vehicle struck the rock on the driver’s
side of the vehicle. Afterwards, claimants’ son moved the rock off of the
travel portion of the road. The impact with the rock broke the vehicle’s
transmission andthevehiclehadtobetowedto a garage forrepairs. The
sustaineddamage exceeded the deductible feature of $500.00 in claimants’ motor
vehicle insurance policy. In accordance with the Court’s decision in Summerville, et al. vs. Division of Highways, any recovery would be limited to the amount of their
deductible feature. Seeld., 18 Ct. Cl. 110 (1991).
The position of respondent is that it did not have notice of a rock on Route
10 in Wyoming County. According to Assistant Supervisor James
David Cox, the area is not posted as a
rockfall area. Mr. Cox further testified that the area in question is not a
known rockfall area, but there are a few rocks which fall each year. Prior to
this incident, respondent had no records of a rockfall.
W.Va.J REPORTS
STATE COURT OF CLAIMS 275
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). Tn order to hold
respondent liable for road defects, a claimant must prove that respondent had
actual or constructive notice of the defect and a reasonable time to take
corrective action. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).
However, the Court has consistently held that the unexplained presence of a
rock on a road surface is insufficient to justify an award. Mitchell vs.
Division of Highways, 21 Ct. Cl. 91(1996).
In this claim, the evidence failed to establish that respondent had not taken
adequate measures to a ssure the s afety oft he traveling p ublic while
traveling o n Route 10 in Wyoming County. While the Court is sympathetic to
claimants’ plight, the fact remains that there is no evidence of negligence on
the part of respondent upon which to base an award.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY19, 2001
PHILLIP FAULKNER AND DANIELA FAULKNER
VS.
DIVISION OF HIGHWAYS
(CC-99-1 11)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage sustained when their vehicle
struck a hole as claimant Phillip Faulkner was traveling southbound on Route 2
towards Marshall University. Route 2 at this location is maintained by
respondent in Cabell County. The Court is of the opinion to deny this claim for
the reasons more fully set forth below.
The incident giving rise to this claim occurred in February 1999. In the early
morning hours of a snowy February day, Mr. Faulkner was traveling southbound on
Route 2, for the first time. He was proceeding towards Marshall University near
the floodwall in Cabell County in his 1992 Acura Vigor. At the location in
question, Route 2 is approximately thirty feet wide with two lanes. It is a
blacktop road with double yellow lines indicating the center of the road. The
speed
276 REPORTS STATE
COURT OF CLAIMS [W.Va.
limit at this location is thirty-five miles per hour, but past the floodwall,
the speed limit is reduced to twenty-five miles per hour. As Mr. Faulkner was
driving the vehicle at a speed of about thirty-five to forty miles per hour, he
had a visibility of about ten to fifteen feet. There was not much traffic
present on the road. Suddenly, the vehicle’s right passenger side tires struck
a hole in the pavement, bursting the tires and b reaking t he r ims. A
fterwards, M r. F aulkner c ontacted r espondent a nd informed it of the hole
on Route 2. As a result of the incident, claimant’s vehicle sustained damage in
the amount of $1,689.34. While claimant had a deductible feature of $500.00 in
his motor vehicle insurance policy, his insurance carrier would not pay for the
after market rims which he purchased for the vehicle.
The position of respondent is that it did not have notice of the hole on Route
2 in Cabell County. Respondent asserts that during the winter months, it uses
cold mix asphalt to repair holes in road surfaces. However, in this claim, it
did not have any information regarding a hole on the road surface of Route 2
where the incident occurred.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent liable
for road defects of this type, claimant must prove that respondent had actual
or constructive n otice o ft he de fect and a reasonable time to take c
orrective a ction. Chapman vs. Dept.
of Highways, 16 Ct. Cl. 103 (1986).
In this claim, the evidence established that respondent had at least
constructive notice of a hazardous condition on Route 2 and was negligent in
its maintenance of Route 2 in Cabell County. Notwithstanding this finding of
negligence on the part of respondent, the Court is also of the opinion that
claimant was negligent in the operation of his vehicle. Mr. Faulkner was
operating his vehicle ata rate ofspeedtoo fastfortheroad conditions then and
there existing. I na comparative negligence jurisdiction, such as West
Virginia, the negligence of a claimant can reduce or bar recovery of a claim.
Based on the above, the Court finds that the negligence of claimant was equal
to or greater than the negligence on the part of respondent. Consequently, the
negligence of claimant is a complete bar to recovery in this claim.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION iSSUED JANUARY 19, 2001
PHILLIP JAMES HAMILTON, JR.
W.Va.J REPORTS
STATE COURT OF CLAIMS 277
VS.
DI VISION OF HIGHWAYS
(CC-00-l 84)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when his vehicle
encountered a sharp turn after crossing a bridge on Route 16, locally known as
Princeton Gamer Road, near Princeton. At this location, Route 16 is maintained
by respondent in Mercer County. The Court is of the opinion to deny this claim
for the reasons more fully set forth below.
The incident giving rise to this claim occurred on January 9, 2000, at
approximately 10:30 p.m. Claimant was traveling southbound on Route 16 in his
1991 Pontiac Firebird GTA at a speed of about twenty-five miles per hour. This
occasion was claimant’s first time driving on this road at night. The weather
was foggy and the roadway was wet. At this location, Route 16 is a two-lane
asphalt road with double yellow lines indicating the center of the road and
white lines on each edge of the pavement. Claimant testified that when he drove
across a bridge, he was unable to observe the turn to his right on the westerly
side of the road. However, he did indicate that he observed an orange “thirty
miles per hour” road sign at the turn. He tried to maneuver his vehicle through
the turn, but he lost control of his vehicle. The vehicle then slid off the
road surface, breaking through a fence and striking a telephone pole. Claimant
sustained minor personal injures. Afterwards, a member of the West Virginia
State Police investigated this incident. The certified police report tendered
by claimant indicated that the contributing circumstances to the incident were
that claimant’s vehicle exceeded a safe speed and that there were other roadway
defects.1 The report does not mention any roadway defects specifically.
Claimant contends that the road configuration was the proximate cause of his
incident. Since the sustained damage was estimated to exceed the value of the
vehicle, the vehicle was deemed to be “totaled.” Claimant paid $5,000.00 for
the vehicle, but the vehicle had a blue book value of $6,600.00.
‘The certified copy of the police report tendered by claimant appears to have
been amended in the section labeled as “Contributing Circumstances.” It
appears to the Court that two different typewriters were used on this report
section and that white-out had been placed over the oval indicating “Left of
Center” which had been previously marked.
278 REPORTS STATE
COURT OF CLAIMS [W.Va.
The position of respondent is that it did not have notice of any problem with
the curve or the road condition on Route 16 in Mercer County. According to West
Virginia State Police Sergeant John C. Gillispie, the investigating officer,
the proximate cause of this incident was claimant’s vehicle was exceeding a
safe speed. Sgt. Gillispie tendered his original police report. The report made
no indication of any roadway defects or hazards, as did the copy of the report
tendered by claimant. Sgt. Gillispie further testified that this was the only incident
that he had encountered at this location.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent liable
for road defects of this type, claimant must prove that respondent had actual
or constructive n otice o ft he de fect a nd a reasonable time t o t ake c
orrective a ction. Chapman vs. Dept.
of Highways, 16 Ct. Cl. 103 (1986).
In this claim, the evidence failed to establish that respondent was negligent
in its maintenance of Route 16 in Mercer County. Claimant should have exercised
greater care under the then and there existing road conditions. Moreover,
claimant proffered a document purporting to be a certified copy of the original
police report. This document appears to the Court to have been altered as
established by the testimony of the investigating officer. The Court takes a
dim view of this conduct and views such conduct w ith extreme disfavor.
Consequently, this claim will be dismissed.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY19, 2001
BENJAMIN DALE HERSMAN
VS.
DIVISION OF HIGHWAYS
(CC-00-36)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
W.Va.] REPORTS
STATE COURT OF CLAIMS 279
Claimant brought this action for vehicle damage sustained when his vehicle
struck a rock while he was traveling southbound on U. S. Route 219 near
Ronceverte. At this location, U. S. Route 219 is maintained by respondent in
Greenbrier County. The Court is of the opinion to deny this claim for the
reasons more fully set forth below.
The incident giving rise to this claim occurred on October 11, 1999, at
approximately 9:30 p.m. Claimant was traveling on U. 5. 219 in his 1990 Ford
Mustang at a speed of about fifty miles per hour. He was proceeding from Fairlea
to his residence in Organ Cave. Claimant’s girlfriend, Candy Hunter, was
following him in another vehicle from a distance of about three car lengths. At
this location, U.
S. Route 219 is a primary, two-lane road with double yellow lines indicating
the center of the road surface and white lines indicating the edges the
pavement. A ditch is located on the side of the road about six feet from a
fifteen foot embankment and a hillside about three hundred feet high. As
claimant drove his vehicle around a sharp turn in the road, he observed a rock
about thirty feet in front of his vehicle on the road surface. Claimant tried
to maneuver his vehicle to the side of the road in order to avoid the rock, but
the passenger side of the vehicle struck the rock. Ms. Hunter was able to drive
her vehicle around the rock. Claimant testified that he did not observe any
“Falling Rock” signs along the road. About twenty minutes before this incident,
he had traveled the road in the opposite direction and he did not observe any rocks
on the road surface at that time. The impact with the rock burst the front
passenger side tire, bent the rim, necessitated alignment of the vehicle as
well as damaging the passenger side of the vehicle. Since claimant was insured
only under a liability motor vehicle insurance policy, he was responsible for
the sustained damage in the amount of $79084.
The position of respondent is that it did not have notice of a rock fall
occurring on U. S. Route 219 on this date. According to Crew Supervisor II Keith
Hollinghead, this area is not known as a rockfall area. In fact, prior to this
incident respondent had no records of any rock falls occurring in this
particular area of U.S. Route 219.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold
respondent liable for road defects, claimant must prove that respondent had
actual or constructive notice of the defect and a reasonable time to take
corrective action. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).
However, the Court has consistently held that the unexplained presence of a
rock on a road surface is insufficient to justify an award. Mitchell vs.
Division of Highways, 21 Ct. Cl. 91(1996).
In this claim, the evidence failed to establish that respondent had not taken
adequate measures to assure the safety of the traveling public while traveling
on U. S. Route 219 in Greenbrier County. The fact that claimant had been on the
road twenty
280 REPORTS
STATE COURT OF CLAIMS [W.Va.
minutes before the incident and did not observe a rock in the road indicates
that respondent did not have notice of the rock on the road. While the court is
sympathetic to claimant’s plight, the fact remains that there is no evidence of
negligence on the part of respondent by which to base an award.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY 19, 2001
MARY ELIZABETH LAWRENCE, INDIVIDUALLY
& AS EXECUTRIX FOR THE ESTATE OF VIOLA F. RANSBERGER; STEVEN RANDALL BROCK;
AND
DEBORAH ANNETTE LINEBERRY
VS.
DIVISION OF HIGHWAYS
(CC-98-70)
Shannon M. Bland, Attorney at Law, for claimants.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for respondent.
STEPTOE, JUDGE:
Claimants brought this action for damages sustained to their real and personal
property due to the alleged negligent maintenance of the drainage system along
W.Va. Route 41, locally known as Webster Road, in Summersville.’ W.Va. Route
41, at this location, is a road maintained by respondent in Nicholas County.
The Court is of the opinion to deny this claim for the reasons more fully set
forth below.
In 1964, claimants’ grandmother, Viola Ransberger, purchased two real property
lots located on the east side of W.Va. Route 41. A house, with an estimated
value of $70,000.00, is situated on one of the lots. The house was used as a
twelve room boarding house while the other lot, which is on the northeast side
of the house, is graveled and used for parking. This portion of W.Va. Route 41,
which traverses in a north-south direction, has two twelve-foot lanes with a
four foot berm on each side of the road. At the time Ms. Ransberger purchased
the property in question,
‘At the hearing, the Court amended the style of the claim to reflect the fact
that Steven Randall Brock and Deborah Annette Lineberry are proper party claimants
in this claim.
W.Va.] REPORTS
STATE COURT OF CLAIMS 281
claimants assert that there were no drainage problems. During the late 1980’s
and early 1990’s, claimants assert that respondent conducted two paving
projects on W.Va. Route 41. During these two separate projects, the road was
resurfaced and later the sidewalk was rebuilt. During the summer of 1989,
employees of the City of Summersville removed a drain from in front of the
house and failed to replace it. After the paving projects and the removal of
the drain, the property began to experience drainage problems and complaints
were made to the City of Summersville; however, no one notified respondent
about these problems. City employees investigated the complaints, and
thereafter rebuilt the steps and installed grates on the top of two of the
steps on the northeast side of the house to alleviate the water drainage
problem. The City’s insurance carrier made a settlement offer in the amount of
$10,000.00, but claimants refused this offer. Claimants then noticed that the
inside basement wall was beginning to deteriorate and the foundation of the
house had begun to shift. The house has been vacant since June of 1996. It was
condemned by the City of Summersville in October 1999. In addition, claimants sustained
an estimated loss in the amount of $15,500.00 for personal property that
was damaged while being stored in the basement of the house. Unfortunately,
claimants’ homeowners insurance policy did not provide coverage for the damage
to the house and the policy was cancelled by the insurance carrier on July 15,
1997.
According to claimants’ professional surveyor Richard Craig Dunlap, the
location of the highest point for the storm drain system is the center of the
road where the road surface is crowned with a two percent grade. The water in
the southbound lane of W.Va. Route 41 flows southerly against the east edge of
the curb for the sidewalk, which has a four percent grade. In May 1997, Mr.
Dunlap measured this portion of the eastern edge of the sidewalk at the
driveway entrance and found it to be only a half-inch higher than the road
surface or almost level with the road. Moreover, Mr. Dunlap observed that the
northeast side of the residence was three inches out of plumb.
Claimants’ expert in civil engineering, Joseph P. Young, examined Mr. Dunlap’s
data as well as conducting an onsite visit. He was of the opinion that water
flowing onto claimants’ property is a contributing factor to the problems
experienced by claimants. Mr. Young observed that the design and construction
of the road as well as sediment that builds up at the northeast corner of the
residence, allow water to flow onto claimants’ property, which saturates the
soil and causes the foundation to shift. Since Mr. Young was unaware of the sequence
of construction of the curb and the road surface, he was unable to determine
which of these factors is the proximate cause of the damage to the house.
The position of respondent is that it was not negligent in the maintenance of
the drainage system on W.Va. Route 41. Respondent asserts that it conducted
only one paving project one mile north of claimants’ property in1993 and it had
no complaints regarding drainage problems on claimants’ property until the
spring of
282 REPORTS STATE
COURT OF CLAIMS [W.Va.
1995.2 During this project, respondent’s employees ground up four inches of the
pavement on Route 41. Then, the road was repaved with three inches of base and
one inch of wearing course material for smoothness. When the project was
completed according to specifications, an on-site field inspector made sure
that there was no change in elevation and that there was a curb of four inches.
In addition, respondent’s employees installed an asphalt speed bump in the
driveway portion of the sidewalk in question, in order to prevent water from
draining onto claimants’ property. The asphalt speed bump lasted only for a few
months before it was eroded by water flow. Moreover, respondent asserted that
it is not responsible for the maintenance of sidewalks on W.Va. Route 41.
According to the deposition testimony of Supervisor of the Claims Section of
the Legal Division Ben L. Savilla, sometime after the paving project in
question, there was one patch in the road surface about eighty-two feet north
of claimants’ property.
Respondent’s expert in geotechnical engineering Dr. George Alan Hall conducted
an on-site inspection of claimants’ property on September 22, 1999. Dr. Hall
opined that claimants were experiencing drainage problems because the City of
Summersville had negligently designed and constructed the sidewalk at a higher
grade than the road surface of W.Va. Route 41 as well as the fact that the
inlet drain was removed by City employees, and should have been replaced.
According to Dr. Hall, the slope away from the sidewalk is much steeper than
the slope of the road, so water naturally flows in that direction. The water
flows along the side of the curb at a relatively high velocity. Once the water
reaches the driveway, it begins to spread out and the expansion creates an
expansion energy loss. When the water reaches the curb at the lower end of the
driveway, a ramp is created onto the sidewalk and gallons of water flow onto
claimants’ property. The faster water flow also carries sediment to the end of
the driveway. This sediment build-up then turns water onto claimants’ property.
Further, the grate constructed by City of Summersville employees directed water
into the soil instead of onto the steps. Additionally, Assistant Supervisor
Edward Roger Brown and Dr. Hall observed the that the downspouts and gutters
are in a state of disrepair, allowing water to flow directly on the ground
adjacent to the house. As a result, Dr. Hall indicated that the saturated soil
has created a small landslide at the corner of the parking lot, pushing the
steps into the house, causing the basement walls to buckle in the middle and
actually
2 The date of the paving project was established by
respondent through affidavits and daily records admitted on May 5, 2000, as post-hearing exhibits in
response to rebuttal evidence presented by claimants at the hearing. On
September 26, 2000, counsel for claimants took the depositions of several
individuals regarding these affidavits and daily records.
W.Va.J REPORTS
STATE COURT OF CLAIMS 283
causing the interior walls to buckle throughout the northeast side of the
house. The house is unstable and uninhabitable.
This Court has held that respondent has a duty to provide adequate drainage of
surface water, and drainage devices must be maintained in a reasonable state of
repair. Haught vs. Dept. of Highways, 13 Ct. CI. 237 (1980). In claims
of this nature, the Court will e xamine whether respondent negligently failed
to protect a claimant’s property from foreseeable damage. Rogers vs. Div. of
Highways, 21 Ct.
Cl. 97 (1996).
In the in stant claim, c laimants have failed to established that respondent
maintained the drainage s tructures on W.Va. Route 41, in Nic holas C ounty, in
a negligent manner. The Court is of the opinion that respondent, once having
notice of the situation on W.Va. Route 41, took immediate and reasonable action
to prevent excess water from flowing onto their property. The terrain in this
area of W.Va. Route 41 forms a natural drainage area on claimants’ property. In
addition, the Court concludes from all the testimony and evidence in this claim
that there are several factors, other than the actions taken by respondent,
which have brought about the drainage problems causing the damages to
claimants’ property. Consequently, there is insufficient evidence of negligence
on the part of respondent upon which to base an award.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY19, 2001
DAVID BOYD MARTIN
VS.
DIVISION OF HIGHWAYS
(CC-97-236)
William M. Tiano and Justin C. Taylor, Attorneys at Law, for claimant.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for respondent.
WEBB, JUDGE:
Claimant brought this action for damaes sustained to his real property and to
his family residence due to the alleged negligent maintenance of the drainage
system along County Route 31, locally known as Poca River Road, in Poca. County
Route 31, at this location, is maintained by respondent in Putnam County. The
Court is of the opinion to deny this claim for the reasons more fully set forth
below.
284 REPORTS STATE
COURT OF CLAIMS [W.Va.
On May 5, 1993, claimant purchased eight acres of real property
with a residence built thereon in Poca, Putnam County, for the amount of
$65,000.00.’ The property was appraised for $68,000.00. The prior landowner had
informed claimant that a landslide had occurred on the property in 1977, and
that he had made repairs to the best of his ability.2 Thereafter, claimant
purchased the property, although he did not have the property inspected
independently. An insurance agent inspected the property for insurance purposes
at the time of purchase. The agent testified that she could not recall whether
any repairs were necessary, but added that a homeowner’s insurance policy would
not have been issued if serious repairs to the residence were necessary.
Claimant and his family moved onto the property during the fourth of July
weekend in 1993.
At the location in question, there is a seventy foot difference in elevation
from County Route 31 sloping downhill, in a northeastern direction, to the
Pocatalico River. The distance of this slope between the road and the river is
about six-hundred to six-hundred-fifty feet. The southwestern side of County
Route 31 is a vast mountainous hillside. Claimant’s residence is situated
two-hundred-fifty feet uphill from the Pocatalico River. There is a driveway
four-hundred to four-hundred-fifty feet long and nine feet wide, which
traverses from the road to the residence. A septic tank is located on the
property between the river and the residence. On the upper hillside, about
three-hundred to four-hundred feet from the residence, a barn also is
‘This property was the subject of a prior claim by the prior landowners, O.L.
“Pete” Westfall and Rebecca Westfall. See Westfall vs. Dept. of Highways, 16
Ct. Cl. 23 (1985). In that claim, the Court made an award of $42,500.00 for
respondent’s negligent maintenance of the ditchline on County Route 31, which
caused a landslide.
21n three specific instances during Claimant’s testimony, he stated that:
“Pete Westfall told me about the slip in the ‘70s and about the state
rebuilding their portion of their area and he had fixed his property to the
best of his ability to where it was at when I purchased the property” (Vol. 1,
Pg. 64, lines 18-22)
** *
“There was only one agreement. He (Pete
Westfall) agreed, in the
agreement it states that he had told me of the previous slip 15 years
approximately and that he had repaired the home to the best of his ability and
he was not going to warrant or guarantee the -(property)” (Vol. 1, Pg. 79,
lines 9-13)
“To the best of my knowledge, Mr. Westfall informed me that the slip had happened
in 1977 and the retaining wall, it took out the road by what he’s telling me,
and they installed the retaining wall I’m saying right after the slide number
one.”
(Vol. 1, Pg. 84, lines 19-22 and Pg. 85, Line I).
W.Va.] REPORTS
STATE COURT OF CLAIMS 285
situated on the property. Approximately seven-hundred feet of claimant’s
property fronts County Route 31, which is a sixteen foot wide medium priority
road.
Claimant’s problems on his property began on December 24, 1993, when a water
line about eight-hundred feet from the residence, pulled apart nine inches.
This was repaired by claimant soon thereafter. Then, on the morning of March
15, 1994, Claimant’s wife noticed that the basement wall was bowing and she
could not enter the downstairs bathroom. Claimant determined that the residence
had shifted nine inches. He and his family were forced to leave their home
within two days because the foundation of the house shifted. The driveway had
developed cracks and separations which made it unsafe for ingress and egress to
the house. Claimant inspected the property and discovered that earth movement
was putting pressure on the residence. He tried to remove this pressure, but he
was not successful in his efforts. Not all of Claimant’s eight acres were damaged.
In the fall 1996, claimant’s residence was destroyed by a fire that was
determined to be arson. The perpetrator of the crime was not apprehended.
Although the residence was insured for the amount of $75,000.00, claimant and
his insurance carrier became involved in a dispute over payment of his claim.
Ultimately, the claim was settled for $30,000.00. The land itself was not
insured. In the present claim, claimant did not assert a determined amount of
damages, which, in the opinion of the Court, is limited to the value of the
land.
Claimant was aware that after a major slide had occurred on County Route 31 in
1977, respondent built a three-hundred foot retaining wall with an eighteen
inch culvert beneath the road surface. This culvert extends approximately three
feet past the retaining wall with the outlet end discharging any water from the
culvert onto Claimant’s property. The water flows downhill from the
southwestern side of County Route 31 across his property to the river which is
approximately six-hundred feet from the road. Claimant asserts that respondent
has done nothing further to control this water during his time of occupancy at
the site. He estimates the water flow from the culvert at one gallon every two
minutes. According to Claimant, the major source of the slide problems
occurring on his property is this particular culvert that discharges water onto
his property.
According to claimant’s expert in landslides and culvert construction,
Alexander Brast Thomas, the culvert beneath County Route 31 described herein
above is the proximate cause of the damage to claimant’s property. According to
Mr. Thomas, respondent did not provide a path for the water discharging from
the culvert to the river. Thus water discharges from the culvert at the base of
the wall, allowing water to be absorbed into the subsurface of the ground,
weakening the soil, and causing slip conditions. Mr. Thomas opined that the
culvert is the primary source of water and there is no outfall protection or
any other structure to convey water toward the river. W hue Mr. Thomas did n ot
o bserve any other s ource of water, he did not examine the subsurface of the
ground to ascertain its present
286 REPORTS
STATE COURT OF CLAIMS [W.Va.
condition for suitable construction of a residence. Similarly, Mr. Thomas
asserts that topographical maps indicate that this area is a landslide prone
area. This fact provides a “caution” to a contractor, but the land can still be
used for construction purposes.
Mr. Thomas believes that the culvert pipe had been moved down river after the
1977 landslide.3 He suspects that the prior culvert pipe through the road was
located above the residence before the 1977 landslide, but that it was replaced
and relocated to its present location afterwards. However, Mr. Thomas could not
specifically locate the prior culvert pipe. He thought that there had been a
cross dram through the road at the head of the first slide. Unfortunately, the
survey notes from the survey conducted by respondent’s district employees of
the area in question end at the side of the residence. In the area beyond the
residence, Mr. Thomas believes that there was a problem in this area in the
past and respondent conducted some kind of repair project.
Furthermore, Mr. Thomas testified that he was not surprised that the landslide
resumed its activity since 1977. He theorized that the 1994 slide was
preventable, but after respondent constructed a stable retaining wall, it left
a disaster zone between the retaining wall and the river. Mr. Thomas is of the
opinion that the Martin property currently is unstable and useless for any
residential purpose. Mr. Thomas further testified that in order to adequately
rebuild the land, it would require about one-half million dollars of
construction work.
The position of respondent is that it was not negligent in the maintenance of
the drainage system on County Route 31. Both Andrew Morgan Allen, then
Maintenance Assistant for respondent in Putnam County and respondent’s
Operations Assistant Laura Ann Conley-Rinehart testified that the area in
question is prone to landslides. Ms. Conley-Rinehart testified that the
position of respondent is that if a landowner builds in an area prone to
landslides, then the landowner is responsible for the drainage because
respondent is an intermediate property owner. She admitted that respondent
directs water through its culvert onto claimants property in order for the
water to flow to the lowest point. She stated that this is a common practice by
respondent. She contends that the property owner is responsible for the water
once it flows from respondent’s property.
Ms. Conley-Rinehart also testified that she and then Area Maintenance
Manager, Dermis Charles Runyon, visited the site in April, 1994, in response to
a
complaint from Claimant. Both individuals testified that they observed the
driveway
in a state of disrepair, which Ms. Conley-Rinehart believes is indicative of a
However, testimony from the hearing in Westfall indicates that there was
no retaining wall prior to the 1977 slide and it would appear to the Court that
the
retaining wall in question was the only wall located on the property.
W.Va.J REPORTS
STATE COURT OF CLAIMS 287
continuing a ctive 1 andslide. Mr. R unyon testified that he o bserved the de
ck and chimney had pulled away from the residence. Additionally, Ms.
Conley-Rinehart as well as Mr. Runyon testified that they observed what they
thought to be spring water flowing across from Claimant’s property on the south
side of County Route 31. After the April, 1994, inspection, both Ms.
Conley-Rinehart and Mr. Runyon assert that they did not notice any movement
from the road or wall and could not identify anything that the State had done
to create a problem. Thereafter, Ms. ConleyRinehart relayed the findings of the
onsite inspection to the office of the Highways Commissioner. The claimant
previously had written to the Commissioner, the Governor, one of our U.S.
Senators, and his Congressman about his problem and said findings were
incorporated into letters from the Commissioner to the Senator and Congressman.
Mr. Allen stated that he was unaware of the natural drainage area of the water
from the culvert, but he assumed it went to the river. Between March 15, 1994,
and November 1999, respondent’s employees only conducted repaving and
reditching projects in the area for the control of surface water. Respondent
did not conduct any activities with regard to the control of soil movement in
the area in question.
Dr. George Alan Hall, respondent’s expert in geotechnical engineering inspected
the Martin property on two separate occasions after the 1994 slide. According
to a West Virginia Ge ological and Economic S urvey map, C laimant’s property
is located in an active landslide area. Thus, when the residence was built in 1974,
he is of the opinion that it was built in the middle of the active slide. The
previous landowner (Westfall) or his contractor had excavated soil from the toe
of the slope during construction of the residence thus reducing the stability
of the slope. The piling project and retaining wall completed by respondent
after the 1977 landslide had alleviated the slip effects upon the road, but not
upon the land below the retaining wall. Dr. Hall determined that the slide is
actually occurring some twenty-five feet downhill from the road near a scarp on
Claimant’s property,. He observed a topographic condition that he described as
“bulging or protruding contours.” This condition indicates that the river has
been protruded, but that the natural drainage channel has cut through this
protrusion. All of these facts indicate an ancient landslide which extends from
the hillside above the road all the way to the river itself.
Further, Dr. Hall opined that during construction of the residence, the
distinct natural drainage channel had been diverted from its natural path. The
survey results, which were incorporated into a topographical map, depicted the
actual drainage channel from the culvert pipe under County Route 31. Water had
flowed in the natural drainage channel until changed by the prior landowner’s
excavation. Dr. Hall asserts that the topographical information contained in
Commissioner’s letters mentioned above support the original design of a
culvert. The culvert collects the
288 REPORTS STATE
COURT OF CLAIMS [W.Va.
water a nd dir ects it t
oward t he n atural dr ainage c hannel. No t m uch w ater flows through the culvert pipe, neither is
there a lot of soft ground near the outlet of the culvert pipe. The water flows
through the culvert pipe in a defmed channel at a high velocity, causing less
water to touch and saturate the soil. Dr. Hall stated that less water
infiltration occurs when w ater flows in a concentrated path down a natural
drainage channel. If there were no culvert pipe, the water flow would spread
over the ground and saturate the soil.
Moreover, Dr. Hall testified that the culvert is not the primary or only source
of water. Ground water has contributed to the condition of claimant’s property.
Several natural springs located on Claimant’s property saturate the soil.
According to Dr. Hall, Mr. Thomas’ testimony did not depict water flowing from
holes in the ground, which were created by natural springs. However, these
holes were not depicted in respondent’s district survey. In addition, during
March of 1994 the vicinity experienced almost twenty inches of rainfall, which
was the wettest period on record since 1939. The culprit, according to Dr.
Hall, is the water collecting in the hillside and released in the natural
springs. These natural springs create a “seepage force,” which drags the soil
along with it. Dr. Hall surmised that the area could be repaired for
approximately ten to fifteen thousand dollars.
The Court has held that respondent has a duty to provide adequate drainage of
surface water, and drainage devices must be maintained in a reasonable state of
repair. Haught vs. Dept. of Highways, 13 Ct. Cl. 237 (1980). In claims of this nature, the
Court will examine whether respondent negligently failed to protect a
claimant’s property from foreseeable damage. Rogers vs. Div. of Highways, 21
Ct.
CI. 97 (1996).
In the instant claim, Claimant has failed to establish that respondent
maintained the drainage system on County Route 31 in a negligent manner. The
Court is oft he opinion that respondent took immediate and reasonable a ction
to repair the road after the 1977 landslide, which prevented further damage to
claimants property. The terrain in this area is typical of many areas in West
Virginia which are subject to landslides. While the Court is sympathetic to the
situation of claimant, the fact remains that there are many factors which have
brought about this particular landslide problem affecting claimant’s property,
including the prior landowner’s construction in a landslide prone area, interfering
with the natural drainage area for the culvert, as well as the natural springs
located on the property. Before purchasing the property, Claimant alleges that
he had a conversation regarding the property on April 27, 1993, with Andrew
Morgan Allen, the then Maintenance Assistant for respondent in Putnam County
mentioned herein above. According to claimant, Mr. Allen never discouraged him
from purchasing the property or indicated that the property was located in an
area prone to landslides. Mr. Allen disputes this assertion. In fact, he
testified that he told claimant not to buy the property because he personally
believed that it was falling into the river.
W.Va.J REPORTS
STATE COURT OF CLAIMS 289
According to Mr. Allen, Claimant indicated that he would not buy the
property. Regardless o f any conversation w ith respondent’s employees,
c laimant was given actual notice of the condition of the land by the prior
landowner, 0. L. “Pete” Westfall. The Court is of the opinion that any
conversation between claimant and a State employee is irrelevant. If a State
employee makes a statement about property to a prospective owner, the statement
would normally be outside the scope of the employee’s employment with the
State. Accordingly, the particular employee’s action and/or statement as
testified to by Claimant, even assuming its accuracy, would have been beyond
the actual or implied scope of the Mr. Allen’s authority. The Court is of the
further opinion that Claimant failed to exercise reasonable care by not having
the property independently inspected after receiving notice prior to the date
of purchase. Consequently, there is no evidence of negligence on the part of
respondent upon which to base an award.4
In consideration of all of the above, the Court is of the opinion to and does
hereby deny this claim.
Claim disallowed.
OPiNION ISSUED JANUARY 19, 2001
PHILLIP N. AND NICK I. MASON
VS.
ALCOHOL BEVERAGE CONTROL ADMINISTRATION
(CC-00-435)
Claimants appeared pro se.
William S. Steele, Managing Deputy Attorney General, for respondent.
PER CURIAM:
This c laim was s ubmitted for decision b ased upon the allegations in the
Notice of Claim and respondent’s Answer.
Claimant seeks $15,000.00 for costs incurred in providing storage facilities
for liquor inventory under an agreement with the respondent State agency. The
documentation for providing the rental premises was not processed for payment
within the appropriate fiscal year; therefore, claimant has not been paid. In
its
Furthermore, claimant’s fmal argument brief cites caselaw that concerns
initiating condemnation proceedings. If the argument in claimant’s brief is to
be believed, then this Court would have no jurisdiction over this claim.
290 REPORTS STATE
COURT OF CLAIMS [W.Va.
Answer, respondent admits the validity of the claim, but states that the amount
calculated by respondent as due and owing to the claimant is $13,933.00.
Claimant agrees with this amount and that it is fair and reasonable. Respondent
further states that there were sufficient funds expired in the appropriate
fiscal years from which the invoices could have been paid.
The Court has reviewed the documentation submitted with the claim and by the
respondent State agency and has determined that the amount of $13,933.00 is
fair and reasonable for both parties.
Accordingly, the Court makes an award to claimant in the amount of
$13,933.00.
Award of$13,933.00.
OPINION ISSUED JANUARY 19, 2001
JIMMY MCLEAN AND PAULA MCLEAN
VS.
DIVISION OF HIGHWAYS
(CC-99-475)
Claimants appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimants brought this action for vehicle damage sustained when their vehicle
struck a hole while claimant Paula McLean was traveling northbound on Route 20
in Nutter Fort. At this location, Route 20 is maintained by respondent in
Harrison County. The Court is of the opinion to deny this claim for the reasons
more fully set forth below.
The incident giving rise to this claim occurred on November 17, 1999, at
approximately 7:00 a.m. On the clear morning in question, claimant Paula McLean
was traveling northbound on Route 20 in Nutter Fort in claimants’ 1997 Ford
Escort at a speed of about twenty-five to thirty-five miles per hour. She was
driving her father to the Veterans Administration Hospital in Clarksburg. At
this location, Route 20 is a two-lane asphalt road, with a width of twenty-two
feet, eleven inches and a speed limit of thirty-five miles per hour. The center
of the road surface is indicated by double yellow lines and white lines indicate
the edges of the pavement. The width of the northbound lane is ten feet seven
inches from the inside yellow line to the white line. The southern side of
Route 20 is a hillside, locally known as Johnson’s Hill. As Ms. McLean was
driving the vehicle along the edge of the road she
W.Va.J REPORTS
STATE COURT OF CLAIMS 291
inadvertently drove the vehicle onto the berm and into a deep hole. The hole
was approximately five feet long, two to three feet wide, and eight inches
deep. While there was moderate traffic on the road, Ms. McLean was not forced
onto the edge of the road by oncoming traffic. She testified that she did not
observe any warning signs on the road about the condition of the berm and she
was not aware of the hole before the vehicle struck it. As a result of this
incident, claimants’ vehicle sustained damage in excess of the deductible
feature of $250.00 in claimants’ motor vehicle insurance policy. In accordance
with the Court’s decision in Summerville, et at. vs. Division of Highways, any
recovery would be limited to the amount of their deductible feature. Seeld.,
18 Ct. Cl. 110 (1991).
The position of respondent was that it did not have notice of the hole on Route
20 in Harrison County. According to Investigator for the Legal Division, Paul
Lister, this portion of Route 20 is a problem area because water from the
hillside saturates the road and heavy truck traffic travels on the edge of the
road, creating holes on the edge of the travel portion of the road. Since Ms.
McLean’s incident, measures have been taken to remedy this situation.
This Courthasbeen veryconsistentin regardto bermclaims. W hena motorist uses
the berm of the road in a non-emergency situation, that motorist takes the berm
as the motorist finds it. Sweda vs. Department of Highways, 13 Ct. Cl.
249 (1980).
In the present claim, respondent had provided Ms. McLean a good roadway for
travel. Ms. McLean elected to travel on the edge of the road surface. The hole
in question was outside o ft he travel p ortion o ft he road and Ms. McLean was
not forced onto the berm area. While the Court is sympathetic to claimants’
plight, the fact remains that there is insufficient evidence of negligence on
the part of part of respondent upon which to base an award.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY19, 2001
ROY J. MCDANIEL
Vs.
DIVISION OF HIGHWAYS
(CC-0O-55)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
292 REPORTS
STATE COURT OF CLAIMS [W.Va.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when his vehicle went
over an embankment while he was traveling in inclement weather on County Route
1, near Bomont. At this location, County Route 1 is maintained by respondent in
Clay County. The Court is of the opinion to deny this claim for the reasons
more fully set forth below.
The incident giving rise to this claim occurred on December 24, 1999, at
approximately 7:30 to 8:15 a.m. On the morning in question, Mr. McDaniel
was traveling on County Route 1 near Bomont in his 1989 four-door Chevrolet
Celebrity at a speed of about twenty miles per hour. About three inches of snow
and ice had accumulated on the road surface and on the side of the road. Mr.
McDaniel frequently travels this portion of road. At this location, County
Route I is a curvy single lane, asphalt, second priority road. The road does
not have lines on the road surface or guardrails. Unbeknownst to Mr. McDaniel,
another traveler had a mishap on the road and he was standing at the side of
the road. When Mr. McDaniel saw the individual on the side of the road, he
attempted to slow the speed of his vehicle. However, as he applied the
vehicle’s brakes to avoid the individual, he lost control of his vehicle and it
slid off the road and over a thirty-five feet embankment. The vehicle 1 anded
on its top in a creek and Mr. McDaniel sustained minor personal injuries. Since
Mr. McDaniel was insured under a liability motor vehicle insurance policy only,
he was responsible for the sustained loss estimated in the amount of
$1,691.00.’
The position of respondent was that it did not have notice of the condition of
County Route 1 in Clay County. According to Transportation Crew Supervisor I
Larry Eugene Hubbard, respondent’s garage in Clay County has five trucks for
snow removal and ice control activities. Mr. Hubbard further stated that
secondary roads, such as County Route 1 are treated as soon as possible after
all of the primary roads have been treated.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). Respondent may not be held
liable for the lack of guardrail on a highway. See Id. In claims of this
nature, the Court has consistently held that the State cannot be expected or
required to remove hazardous conditions from highways during the winter months.
Morris vs. Div. of Highways, 21 Ct. Cl. 117 (1996); Treadway vs.
Dept. ofHighways, 16 Ct. Cl. 101 (1986).
‘At the hearing, claimant asserted that the originals of his receipts were
destroyed in an unrelated fire. Copies of those receipts were adduced on
September 20, 2000, as post hearing exhibits and establish claimant’s loss in
the amount of
$1,261.16.
WVa.J REPORTS
STATE COURT OF CLAIMS 293
In the present claim, the evidence failed to establish that respondent was negligent
in its maintenance of County Route 1 at the time of claimant’s accident
described herein. While the Court is of the opinion that claimant’s incident
was the result o f s now and ice on the road surface of County Route 1, that
fact alone is insufficient to establish negligence on the part of respondent.
Claimant was familiar with the road and should have been aware of potential
conditions on the road during the winter months. Consequently, there is no
evidence of negligence on the part of respondent upon which to base an award.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY 19, 2001
RICK MODESITT
VS.
DEPARTMENT OF TAX AND REVENUE
(CC-0 1-009)
Claimant appeared pro Se.
Joy M. Boiling, Assistant Attorney
General, for respondent.
PER CURIAM:
This c laim was s ubmitted for de cision based upon the allegations in the
Notice of Claim and respondent’s Answer.
Claimant, a Commissioner for the State Athletic Commission, a State agency,
seeks $179.85 for purchases made for the Commission. The documentation for
these services was not processed for payment within the appropriate fiscal
year; therefore, claimant has not been paid. In its Answer, respondent admits
the validity of the claim as well as the amount, and states that there were
sufficient funds expired in the appropriate fiscal year from which the
purchases could have been paid.
Accordingly, the Court makes an award to claimant in the amount of
$179.85
Award of$179.85.
OPINION ISSUED JANUARY 19, 2001
294 REPORTS
STATE COURT OF CLAIMS [W.Va.
JUANITA PUMPHREY
VS.
DIVISION OF HIGHWAYS
(CC-OO-42)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when her vehicle
wrecked after sliding across a patch of ice while traveling southbound on
County Route 73/73 in Fairmont. At this location, County Route 73/73 is maintained
by respondent in Marion County. The Court is of the opinion to deny this claim
for the reasons more fully set forth below.
The incident giving rise to this claim occurred on December 11, 1999, at
approximately 9:25
a.m. Claimant was traveling southbound
on County Route 73/73 in her 1988 Plymouth Horizon at a speed of about
twenty-five miles per hour. She was proceeding from her residence in Fairmont
toward her place of employment at the Meadowbrook Mall. Earlier in the morning,
claimant heard on the radio that inclement weather conditions had created
hazardous conditions on the roadways. At this location, County Route 73/73 is a
first priority, two-lane road with double yellow lines indicating the center of
the road surface and white lines indicating the edges of the pavement. The road
is twenty-one feet wide. Each lane of travel is about nine and one-half feet
wide between the lines on the road surface. As claimant drove her vehicle on
the wet roads, her vehicle suddenly struck a patch of ice across the road
surface. Claimant estimated that the patch of ice extended across the road
about five feet. She testified that she believed that the water and ice on the
road surface was due to a drainage problem in the area. After striking the
patch of ice, her vehicle began to skid and she lost control of her vehicle.
Claimants vehicle swerved into the other lane of travel and into a nearby
property owner’s yard. It struck a gas meter as it struck the side of the
property owner’s residence, then it went up a slight hill and fmally slid down
the other side of the hill to the road surface where it came to rest in the
middle of the road. Emergency vehicles were called to the scene. A member of
the Marion County Sheriffs Department investigated the incident and determined
that there was no improper driving on the part of claimant. The Marion County
Deputy did determine that slippery pavement was the proximate cause of the
W.Va.] REPORTS
STATE COURT OF CLAIMS 295
incident. Claimant sustained minor
personal injuries.1 Since the sustained damage to the vehicle exceeded the
value of her vehicle, it was considered “totaled.” In addition, claimant
incurred travel expenses as a result of this incident. Her total loss was
estimated to be in the amount of $2,128.82.
The position of respondent is that it did not have notice of the patch of ice
on County Route 73/73 in Marion County. According to Transportation Crew Chief
Harold Swidler, patrols are on duty all night during times of inclement
weather. Prior to this incident, respondent had no information regarding the
ice patch on the road where claimant had her accident.
Weather conditions in West Virginia can change rapidly during the winter
months. The rapid fluctuations in temperature can cause moisture and
precipitation to collect on road surfaces, forming ice, which may create
slippery road conditions. Thus, in claims of this nature, the Court has held
consistently that an isolated patch of ice on a highway is insufficient
generally to establish negligence on the part or respondent, without notice and
a reasonable opportunity to remove the hazardous condition. Morris vs. Div.
of Highways, 21 Ct. Cl. 117 (1996); Treadway vs. Dept. of Highways, 16
Ct. Cl. 101 (1986).
In this claim, the evidence failed to establish that respondent had notice of a
patch of ice on the road surface of County Route 73/73 in Marion County. While
the Court is sympathetic to the plight of claimant, the fact that her incident
was caused by a patch of ice on the surface of County Route 73/73 is insufficient
to establish negligence on the part of respondent. Consequently, there is no
evidence of negligence on the part of respondent.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY 19, 2001
MARY ROY AND JAMES ROY
VS.
DIVISION OF HIGHWAYS
(CC-00-29)
Claimant adduced a medical bill on November 16, 2000, as a post-hearing
exhibit, which established her medical expenses as a result of this incident in
the
amount of $240.40.
296 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claimant Mary Roy appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage sustained when their vehicle
was struck by a rock while claimant Mary Roy and her uncle were traveling
westbound on Route 33 outside Elkins in rainy weather. At this location, Route
33 is maintained by respondent in Randolph County. The Court is of the opinion
to deny this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on November 2, 1999. On the day
in question, claimant Mary Roy and her uncle were traveling westbound on Route
33, outside Elkins toward Norton, in claimants’ 1996 Ford Contour. Ms. Roy
testified that she frequently travels this portion of road and she was not
aware of any “Falling Rock” signs posted along the side of the road. At this
location, Route 33 is a first priority road with a width of twenty-two to
twenty-three feet and shoulders two to three feet in width. The north side of
Route 33 is a hillside, locally known as “fossil park,” and is a known
rock-fall area. Along the road at this location, respondent has installed
“Falling Rock” signs in each direction before travelers enter this area. The
sign to the east of the accident scene is about one-quarter mile from the
location in question and claimant Mary Roy would have passed the sign. These
signs were installed in May of 1994. They are about fourteen feet from the edge
of the pavement. As Ms. Roy drove the vehicle along the road, a rock fell from
the hillside, bounced off a ledge and into the road, striking the vehicle. Ms.
Roy immediately notified the local State Police Detachment about the incident.
The vehicle sustained damage in excess of the $100.00 deductible feature in
their motor vehicle insurance policy and claimants had to pay for a rental
vehicle until the repairs on their vehicle were completed. Neither Ms. Roy nor
her uncle suffered a personal injury in the incident. In accordance with the
Court’s decision in Summerville, et aL vs. Division of Highways, any
recovery would be limited to the amount of their deductible feature, plus any
other out of pocket expenses. See Id., 18 Ct. Cl. 110 (1991). Also, Ms. Roy
claims $500.00 for pain and suffering due to emotional distress caused by this
incident.
The position of respondent was that it did not have notice regarding a rock-
fall on R oute in Randolph C ounty. A ccording to A ssistant S upervisor L ewis
Barry Gardner, the location in question is a known rock fall area and
respondent had installed signs to warn the traveling public. Further,
respondent did not receive any information regarding this incident.
The Court has consistently held that the unexplained falling of rock or rock
debris on the road surface is insufficient to justify an award. Mitchell vs.
Division of Highways, 21 Ct. Cl. 91(1996); Hammond vs. Dept. of
Highways, 11 Ct. Cl. 234 (1977). In order to establish liability on behalf
of respondent, the evidence must
W.Va.J REPORTS
STATE COURT OF CLAIMS 297
establish that respondent had notice of the dangerous condition posing the
threat of injury to property and a reasonable time to take suitable action to
protect motorists. Alkire vs. Division of Highways, 21 Ct. Cl. 179
(1997).
The evidence failed to establish that respondent had not taken adequate
measures to assure the safety of the traveling public while traveling on Route
33 in Randolph County. While the Court is sympathetic to claimants’ plight, the
fact remains that there is insufficient evidence of negligence on the part of
respondent upon which to base an award.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY 19, 2001
STANLEY K. SHANHOLTZ AND
MARSHA L. SHANHOLTZ
VS.
DIVISION OF HIGHWAYS
(CC-00-220)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage sustained when their vehicle
struck a hole while they were traveling southbound on County Route 3, locally
imowri as Wyatt Road. At this location, County Route 3 is maintained by
respondent in Harrison County. The Court is of the opinion to deny this claim
for the reasons more fully set forth below.
The incident giving rise to this claim occurred on June 3, 2000, at
approximately 5:30 p.m. Claimant Stanley K. Shanholtz was driving
southbound on County Route 3 in their 1994 Pontiac Bonneville at a speed of
thirty to thirty-five miles per hour. Claimant Marsha L. Shanholtz was situated
in the front passenger seat.’ At this location, County Route 3 is a second
priority two lane road with no stripes on the road surface. As Mr. Shanholtz
drove their vehicle over a slight incline
‘At the hearing, Claimant Marsha L. Shanholtz was the only witness in the
claimants’ case-in-chief.
298 REPORTS
STATE COURT OF CLAIMS [W.Va.
on the road, they came upon a hole in the right side of the road surface.
Oncoming traffic prevented him from maneuvering their vehicle around the hole.
The front passenger side tire struck the hole. The hole was about three to four
feet wide, about one and one-half to two feet long, and was eight to twelve
inches deep. Ms. Shatholtz was last on the road about three days prior to the
incident and she indicated that she was aware of the hole in question. The
impact with the hole burst the front passenger side tire and broke the rim. Since
the sustained damage was less than the deductible feature of $500.00 in
claimants’ motor vehicle insurance policy, they were responsible for the loss.
The position o fr espondent is that it did not haven otice o fthe hole on
County Route 3 in Harrison County. According to Highway Administrator Michael
A. Scott, he was last on the road about one month prior to claimants’ incident.
At that time, Mr. Scott acknowledged that the road was in need of repair.
However, prior to claimants’ incident respondent had not received any
information regarding a problem in the area. After the incident, a crew was
dispatched to the scene and the hole was repaired.
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hold respondent
liable for road defects of this type, a claimant must prove that respondent had
actual or constructive n otice of the de fect and a reasonable time to take c
orrective a ction. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).
In this claim, the evidence established that respondent had at least
constructive if not actual notice of a hazardous condition on County Route 3
and that respondent was negligent in its maintenance of County Route 3 in
Harrison County. Notwithstanding this finding of negligence on the part of
respondent, the Court is also of the opinion that claimant Stanley K. Shanholtz
was negligent in the operation of his vehicle. The Court has determined that
Mr. Shanholtz should have been more observant of the existing road conditions.
Moreover, Ms. Shanholtz was aware of the hole in the road surface and s he ha d
an obligation to inform her husband of the existing road conditions. In a
comparative negligence jurisdiction such as West Virginia, the negligence of a
claimant may reduce or bar recovery of a claim. The Court fmds that the
negligence of claimants was equal to or greater than the negligence on the part
of respondent and is a complete bar to recovery in this claim.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY19, 2001
W.Va.] REPORTS
STATE COURT OF CLAIMS 299
KAREN J. SUTPHIN
VS.
DIVISION OF HIGHWAYS
(CC-00-298)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage sustained when her vehicle
struck a low berm while she was traveling westbound on County Route 24, locally
known as Pisgah road, in Princeton. At this location, County Route 24 is
maintained by respondent in Mercer County. The Court is of the opinion to deny
this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on July 4, 2000, at
approximately 5:00 to 6:00 p.m. Claimant was traveling westbound on County
Route 24 in her 1995 Pontiac Grand Am at a speed of about thirty-five to forty
miles per hour. No other traffic was present on the road. She travels this
portion of road on a regular basis and was last on the road earlier in the day.
At this location, County Route 24 is a two-lane road with double yellow lines
indicating the center of the road surface and white lines indicating the edge
of the pavement. The road is nineteen feet wide. This portion of road is
straight and level although it is in between two curves. The edge of the
pavement is about eight inches higher than the berm area. As claimant was
driving in this straight stretch, she veered off the road and her vehicle went
into the low berm area. The impact burst the tire, bent the rim and damaged the
undercarriage of the vehicle. The sustained damage exceeded the deductible feature
of $500.00 in her motor vehicle insurance policy. In accordance with the
Court’s decision in Summervile et at. vs. Division of Highways, any
recovery would be limited to the amount of her deductible feature. See Id., 18
Ct. Cl.
110 (1991).
The position of respondent is that it did not have notice of the low berm on
County Route 24 in Mercer County. According to Crew Leader Supervisor Melvin
Blankenship, there was a drop-off from the edge of the road that proceeds into
a ditch. Respondent had conducted a paving project on this road in June 2000.
Respondent then tried to build up the berm area of the road after the paving
project. However, Mir. Blankenship testified that there was no way to build up
the berm area because the ditch line within respondent’s thirty foot right of
way must abut against the paved portion of the road in order to accommodate the
residents in the area who have driveways with drains beneath them. Mr.
Blankenship further testified that the problem would remain unless the private
landowners with property adjacent to the road chose to do something about it.
300 REPORTS
STATE COURT OF CLAIMS [W.Va.
This Courthasbeenveryconsistentin regardtobermclaims. W hena motorist uses the
berm of the road in a non-emergency situation, that motorist takes the berm as
the motorist fmds it. Sweda vs. Department of Highways, 13 Ct. Cl. 249
(1980).
In the p resent claim, the evidence established that respondent had actual
knowledge of the low berm on County Route 24 in Mercer County. The Court is of
the opinion that the low berm area constituted a hazardous condition to the
traveling public. Notwithstanding this finding of negligence on the part of
respondent, the Court is also of the opinion that claimant was negligent in the
operation her vehicle. In a comparative negligence jurisdiction such as West
Virginia, the negligence of a claimant can reduce or bar recovery of a claim.
Therefore, the Court finds that the negligence of claimant was equal to or
greater than the negligence on the part of respondent. Consequently, the
negligence of claimant is a complete bar to recovery in this claim.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY19, 2001
DENNIS GENE SUTTLE
VS.
DIVISION OF HIGHWAYS
(CC-99- 106)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for damage sustained to his residence due to a
drainage problem on County Route 15, locally known as Old Scarbro Road,
near Oak Hill. At this location, County Route 15 is maintained by respondent in
Fayette County. The Court is of the opinion to deny this claim for the reasons
more fully set forth below.
In 1989, claimant Demis Gene Suttle bought his residence along the southern
side of County Route 15 near Oak Hill, Fayette County. The residence has a
width of fifteen feet and a length of forty feet. Prior to the purchase of the
property, claimant did not have the property independently inspected. Jones
creek is located on the eastern side of the residence. In addition, Jones creek
intersects and flows
W.Va.] REPORTS
STATE COURT OF CLAIMS 301
under County Route 15 through a culvert pipe. At this location, County Route 15
is a secondary asphalt road with two ten feet lanes.
On June 15, 1992, claimant began to experience drainage problems in the area
when there were steady rains lasting three to four days. He complained to an
employee of the respondent and tried to explain to him that there was a pipe
beneath the road. Respondent was not aware of the pipe beneath the road but
fmally acknowledged that there may be a pipe located in a very deep part of the
ground beneath the road. Apparently nothing was done at that time. Claimant
continued to have water flowing into his yard on occasion until June 2, 1998,
when the water flowed from the creek through his yard and actually flowed into
his residence. It then accumulated in a low spot in his yard, which is lower
than the level of the road surface. Sometime after June 2, 1998, the city of
Oak Hill installed a water line on his property. On August 16, 1998, water
again backed up from the creek and flowed into his residence. Apparently, the
drain had become clogged and did not function properly. Afterwards, claimant
again reported the problem to respondent. Claimant testified that he had done
nothing to initiate the clogging of the drain, including any excavation on the
property. The damage to the residence caused by the water which came into the
residence on August 16, 1998, was estimated to be between $5,000.00 and
$8,000.00.
The position of respondent is that it did not have notice of the drainage
problem on County Route 15 in Fayette County. Ac cording to Crew Supervisor
Michael R. Humphrey, he investigated the area looking for the culvert and when
he found the in let end, he dis covered that it had b een c overed with rock
fill which limited the ability of the pipe to accept water. He estimated the
amount of the material covering the pipe to be thirty to forty tons of rock and
he described the rocks as being sandstone with the size of the rocks ranging
from two to three feet long and a foot to two feet wide. He then searched for
and found the outlet end of the pipe fifteen feet on the north side of the
road. Mr. Humphrey further testified that he was unaware of how or when the
rocks at the inlet end of the pipe got there. He asserted that respondent was
not responsible for the placement of the rocks. Thereafter on August 31, 1998,
respondent removed about ten feet of rock blocking the drain and replaced the
old eighteen-inch pipe with a thirty-six inch pipe. This action taken by
respondent remedied the water problems claimant had been experiencing on his
property.
The Court has held that respondent has a duty to provide adequate drainage of
surface water, and drainage devices must be maintained in a reasonable state of
repair. Haught vs. Dept. of Highways, 13 Ct. Cl. 237 (1980). In claims of this nature, the Court will
examine whether respondent negligently failed to protect a claimant’s property
from foreseeable damage. Rogers vs. Div. of Highways, 21 Ct.
Cl. 97 (1996).
302 REPORTS STATE
COURT OF CLAIMS [W.Va.
In the present claim, the evidence failed to establish that respondent was
negligent in its maintenance of the drainage system on County Route 15 in
Fayette County. Once respondent had knowledge of the drainage problem, it
investigated the water drainage provided for the area, and remedied the
situation. While the Court is sympathetic to claimant’s plight, the fact
remains that there is no evidence of negligence on the part of respondent upon
which to base an award.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY19, 2001
ALTON DALE WEST AND ALVIN DAVID WEST
VS.
DIVISION OF HIGHWAYS
(CC-0O-23)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for damaged water quality as a result of blasting
by a contractor for respondent near Route 97 in Hanover, Wyoming County. The
Court is of the opinion to deny this claim for the reasons more fully set forth
below. Claimant Alton Dale West owns a house in Hanover, Wyoming County that
was built in 1968.1 Mr. West’s brother, Claimant Alvin David West resides in
the house. A nearby well, dug in 1968, supplies the residence with water. The
well is fifty-five to sixty feet deep and does not have a filter. All of the
local residents have their own personal wells. From spring 1997 to fall 1998,
Bizzack, Inc., was involved in a construction project on Route 97. During this
project, Bizzack, Inc., conducted blasting operations in the area for about one
year. The site of the blasting was about one hundred fifty feet from the house
and it was at an elevation twenty to twenty-five feet lower than the house. On
August 29, 1997, Mr. Alvin West completed a preblast survey in which he
indicated that the well had been tested and iron was found in the well water
supply. Mr. West also indicated the presence of sulphur in the well
‘Claimants
adduced two deeds on October 13, 2000, as post-hearing exhibits, which
establish the chain of title of the property in question from his parents to him.
W.Va.j REPORTS
STATE COURT OF CLAIMS 303
water supply. On one occasion, blasting debris struck the residence damaging an
awning. Afterwards, Mr. Alvin West signed a release form and he was reimbursed
for the damages by Bizzack, Inc.’s insurer. Sometime between September through
November of 1998, claimant Alvin David West began to notice a discoloration in
the water supply from the well. This discoloration became progressively worse.
Mr. West testified that prior to the blasting, there was no problem with the
water supply. After the blasting, he testified that the water was not drinkable
or useable for general domestic purposes. Mr. Alvin West further testified that
he has to purchase drinking water and t alce his c lothes to the I aundromat. A
ccording to Mr. A Ivin West, h e reported the problem to the insurer for
Bizzack, Inc., and he was instructed to file a claim in this Court. The
sustained damage to the well was estimated between $2,790.00 and $3,384.00.
Neither Mr. Alton West nor Mr. Alvin West had a homeowner’s insurance policy
that would have provided coverage for this incident.
In this claim, the evidence failed to establish negligence on the part of
respondent. The Court is of the opinion that the adduced evidence was too
speculative to conclude that the blasting was the proximate cause of damage to
the well such that the water quality was affected by an infiltration of iron.
There are many other plausible reasons for the iron in the water other than the
blasting. Moreover, the completed pre-blast survey indicated that there were
some water quality problems prior to the blasting. While the Court is
sympathetic to claimants’ plight, the fact remains that there is no evidence of
negligence on the part of respondent upon which to base an award.
In accordance with the fmdings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY 19, 2001
NATHAN WILEY WILLIAMS
VS.
DIVISION OF HIGHWAYS
(CC-99-95)
Robin M. Crum, Attorney at Law, for
claimant.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for respondent.
STEPTOE, JUDGE:
Claimant brought this action for damages sustained when he lost control of his
vehicle while traveling southeast on County Route 21, locally known as
304 REPORTS STATE
COURT OF CLAIMS [W.Va.
Bowman’s Ridge, in Moundsville. County Route 2 lat this location is maintained
by respondent in Marshall County. This claim was bifurcated by Order and heard
on the issue of liability only. The Court is of the opinion to deny this claim
for the reasons more fully set forth below.
On the day prior to the hearing of this claim, the parties, counsel, and the
Court met at the scene of the accident for a view of the road and the
surrounding terrain. The Court observed the following:
1. County Route 21 at the scene proceeds in a northwest-southeast direction.
The accident occurred in a straight stretch of the two-lane road. There are
double yellow lines indicating the center of the road surface.
2. To the southeast of the scene, there is a curve to the right in the road.
3. There is a hillside on the east side of the road and an embankment is
located on the west side of the road.
4. Since the incident involving the claimant, the road has been resurfaced.
5.
Both Marshall County Sheriff Daniel
Wayne Garwick and the claimant indicated the location where they believed that
claimant’s vehicle left the road. Each of them offered differing opinions as to
the exact point on the road where claimant’s vehicle left the road.
FACTS OF THE CLAIM
The incident giving rise to this claim
occurred on February 19, 1997, at approximately 6:00 p.m.’ On the rainy evening
in question, the claimant and a friend, Thomas Joshua Whitfield, were traveling
southeast on County Route 21 in claimant’s 19 83 C hevrolet Monte C arlo. A t this
location, C ounty Route 21 is a straight stretch, two-lane road that traverses
in a southeast-northwest direction. There is a curve in the road to the right
just prior to the scene of this incident. The road surface is comprised of
asphalt and there are double yellow lines indicating the center of the road
surface. County Route 21 cuts through a mountainous portion of Marshall County.
On the eastern side of County Route 21 is a hillside and on the western side of
County Route 21 is an embankment. Earlier in the evening at about 4:30 to 5:00
p.m., claimant had been driven to his residence by Thomas Richard Whitfield,
claimant’s employer and Thomas Joshua Whitfield’s father, after they had spent
the day working in Wheeling. After arriving at his residence, claimant ate his
supper and then left his residence in his vehicle. He drove northwest on County
Route 21 to the Whitfield residence to pick up Thomas Joshua Whitfield and
return to his own residence. After the claimant picked up Mr. Whitfield, they began
the return trip to the Williams’ residence proceeding southeast.
‘Mr. Williams testified that the incident occurred at approximately 6:00
p.m. However, statements given to Marshall County Deputy Sheriff Daniel Wayne
Garwick indicate that the incident occurred at approximately 6:45 p.m.
W.Va.] REPORTS
STATE COURT OF CLAIMS 305
About one-half mile from the
Whitfield residence, claimant was driving his vehicle at a speed of about
thirty-five miles per hour when he came upon a hole estimated to be eighteen
inches in diameter and ten inches deep. Claimant was aware of this hole, but on
this occasion, he did not observe it until he was about ten to twelve feet from
it. He made a decision to have his vehicle encounter the hole rather than
attempting to maneuver his vehicle around the hole; therefore, the front
passenger side tire struck the hole. The impact caused the right front tire to
burst whereupon claimant lost control of his vehicle. The vehicle crossed the
road and proceeded over the embankment through a small barbed wire fence. The
vehicle began rolling on its side about four to five times and in the process
both claimant and his passenger were ejected from the vehicle. Mr. Whitfield
sustained only minor personal injuries, but claimant suffered a broken clavicle
as well as other personal injuries. After the incident, claimant and Mr.
Whitfield walked to the top of the road. A neighbor arrived at the scene and
drove them to the Whitfield residence. Thomas Richard Whitfield then
transported the two individuals to Reynolds Memorial Hospital in Glen Dale.
Thomas Richard Whitfield and William Robert Anderson, both of whom live in the
area, testified that on the day in question there was gravel and cinders were
present on the road surface and this was the condition on the road at the time
of claimant’s accident.
Later in the evening on the day of the accident, Marshall County Deputy Sheriff
Daniel Wayne Garwick investigated this incident. Deputy Garwick obtained
statements from the claimant and Mr. Whitfield, at the hospital. Both of the
statements were to the effect that the claimant lost control of the vehicle
before the far turn in the road as they proceeded southeast and that the
vehicle went over the embankment. Neither of the statements taken by Deputy
Garwick mentioned any roadway defect. After taking the statements at the
hospital, Deputy Garwick proceeded to the accident scene in order to gather
information whatever information he could about the exact site of the accident
and to view the vehicle. Deputy Garwick indicated in his report that he did not
observe any roadway defects. Deputy Garwick followed up his investigation by
citing Mr. Williams for failure to maintain control of the vehicle, improper
registration of the vehicle, and lack of motor vehicle insurance.
Respondent maintains that it did not have any notice of any roadway defect on
County Route 21 in Marshall County at the scene of claimant’s accident.
According to Crew Leader-Foreman, Kevin Leonard Cottrell, respondent patrolled
County Route 21 regularly. He was not aware of any particular road defect.
Moreover, County Administrator Ronald William Faulk testified that respondent
had not received any complaints regarding a roadway defect on the road prior to
claimant’s incident. Daily work records indicated that respondent’s employees
conducted roadway patching along County Route 21 after claimant’s incident.
306 REPORTS
STATE COURT OF CLAIMS [W.Va.
ANALYSIS AND CONCLUSION
The well-established principle of law in West Virginia is that the State is
neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins
vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In order to hoLd respondent
liable for road defects of this type, claimant must prove that respondent had
actual or constructive n otice o ft he de fect and a reasonable time to take c
orrective action. Chapman vs. Dept of Highways, 16 Ct. Cl. 103 (1986).
The Court is mindful that there is a discrepancy regarding the time frame of
the incident and the exact point where the vehicle veered off the road.
However, these issues are not germane in the fmal analysis of the facts and
circumstances of this claim. The ultimate issue is whether respondent had
notice of a roadway defect on County Route 21 in Marshall County. In the
present claim, the evidence fails to establish that respondent ha d n otice o f
a roadway defect o n C ounty Route 21 in Marshall County. The evidence
establishes that claimant was familiar with the condition of the road at the
time of the incident. The Court is further of the opinion that claimant should
have exercised more care under the existing conditions. Consequently, there is
insufficient evidence of negligence on the part of respondent upon which to
base an award.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JANUARY 30, 2001
ATTORNEY GENERAL
VS.
DIVISION OF CORRECTIONS
(CC-00-487)
Claimant appeared pro Se.
Joy M. Bolling, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was s ubmitted for de cision b ased upon the allegations in the
Notice of Claim and respondents Answer.
Claimant seeks payment in the amount of $25,518.50 for professional services
rendered to respondent. The documentation for these services was not processed
for payment within the appropriate fiscal year; therefore, claimant has not
W.Va.J REPORTS
STATE COURT OF CLAIMS 307
been paid. In its Amended Answer, respondent admits the validity of the claim,
but states that the correct amount owed to claimant is $19,829.75. Respondent
further states that there were s ufficient funds e xpired in the appropriate
fiscal year from which the invoices could have been paid. Claimant has reviewed
the Amended Answer and agrees that the amount of $19,829.75 is the correct
amount owed by respondent.
Accordingly, the Court makes an award to claimant in the amount of
$19,829.75.
Award of $19,829.75.
OPINION ISSUED JUNE 29, 2001
WILLIAM ADK1NS
VS.
DIVISION OF CORRECTIONS
(CC-00-121)
Claimant appeared pro Se.
Joy M. Boiling, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this claim to recover the value of a certain television set
that he alleges was lost or stolen while he was in lock-down at Mt. Olive
Correctional Center where claimant is an inmate.
The critical issue in this case is whether or not this claim was timely filled.
A hearing was conducted by this Court on September 29, 2000, at which time the
claimant testified as to the facts and circumstances that gave rise to this
claim. Claimant was moved from Stewart Hall to Quilliams, also referred to as
being in lock-down, in January 1997. He was released from lock-down in April of
1997, at which time he discovered that his television was missing. In July
1997, claimant was returned to lock down status. Claimant did not file a claim
with the Court of Claims during the time period between April 1997 and July
1997. He testified that he was in lock-down from July 1997 until March 2000.
Claimant asserts that he was not able to file a claim with the Court of Claims
while he was in lock-down.
The Associate Warden of Operations, Tim Whittington, testified that an inmate
at Mt. Olive, regardless of which unit of the prison he is held, can request
the forms to file a grievance or a claim with the Court of Claims at any time,
and that such forms would be provided. Robert Daniel, the unit manager over Mr.
Adkins stated that any prisoner in Quilliams may file claims with the Court of
Claims. He
308 REPORTS
STATE COURT OF CLAIMS [W.Va.
stated that there is an inmate request fonn available to all inmates to do so
upon request. The request form is sent to Robert Daniel’s office to be copied
and filed as proof that said request was made. Mr. Daniel testified that the
claimant did not request any claim forms. The claimant himself testified that
he did not request permission to file with the Court of Claims during the
period that he was in lock- down from July 1997 through March 2000.
In accordance with the provisions of W. Va. Code § 14-2-21, the Court has no jurisdiction over a claim unless the claim is
filed within the applicable statute of limitations. Bell vs. Division of
Highways, 19 Ct. Cl. 1 (199/). W.Va. Code §55-2- 12, is the
applicable statute of limitations for a property claim, and provides that this
claim should have been brought within two years of the date that claimant
discovered the property loss. However, W. Va. Code §55-2-15 provides
that if a person is under a disability which prevented him from filing any
action, then the statute of limitations is tolled until the disability is
removed. Glover vs. Narick, 184 W. Va. 381, 400 S.E.2d 699 (1994).
The evidence in this claim establishes that claimant did not file his
action within the appropriate two year limitation. Claimant discovered that his
television was missing in April 1997, but he did not file the claim herein
until March 21, 2000. The evidence further establishes that claimant was not
under any disability which would extend the period of time beyond two years as
he was not prohibited from filing a claim while he was in lock-down in
Quilliams. Furthermore, claimant did not request any claim forms or request
permission to file with the Court of Claims. Claimant’s only request was that
someone look for his television.
Accordingly, the Court is of the opinion that the filing of the claim herein by
the claimant in March 2000 was not within the applicable statute of limitations.
The Court, lacking jurisdiction in this matter, is required to and does
disallow this claim.
Claim disallowed.
OPINION ISSUED JUNE 29, 2001
ALLTEL CORPORATION
VS.
DEPARTMENT OF NATURAL RESOURCES
(CC-01-053)
David A. Barnette, Attorney at Law, for clamant.
Daynus Jividen, Senior Assistant Attorney General, for respondent.
W.Va.J REPORTS
STATE COURT OF CLAIMS 309
PER CURIAM:
This c laim w as s ubmitted for de cision b ased upon the allegations in the
Notice of Claim and respondent’s Answer.
Claimant seeks $6,93 1.96 for providing state-wide mobile telephone services to
respondent in accordance with a contact entered into with the State of West
Virginia. The documentation for these services was not processed for payment
within the appropriate fiscal year; therefore, claimant has not been paid. In
its Amended Answer, respondent admits the validity of the claim, but states
that the correct amount owed to claimant is $6,916.59. Respondent
further states that there were sufficient funds expired in the appropriate
fiscal year from which the invoices could have been paid. Claimant indicated
that it agrees to accept the admitted amount as full and complete satisfaction
of this claim.
Accordingly, the Court makes an award to claimant in the amount of
$6,916.59.
Award of $6,916.59.
OPINION ISSUED JUNE 29, 2001
ALFRED E. COLLINS and NANCY C.
COLLINS
VS.
DIVISION OF HIGHWAYS
(CC-98-290)
Michael L. Glasser, Attorney at Law, for claimant.
Andrew F. Tarr and Xueyan Zhang, Attomys at Law, for respondent.
WEBB, JUDGE:
Claimants brought this action for permanent physical injuries, loss of
consortium, and property damage sustained when a vehicle being driven by
claimant Nancy Collins collided with a concrete barrier erected at a bridge
construction site while she was traveling southbound on State Route 65 in North
Matewan, Mingo County. At this location, State Route 65 is maintained by
respondent. The Court will make an award for the reasons more fully set forth
below.
FACTS OF THE CLAIM
The incident giving rise to this claim occurred on May 31, 1998, at
approximately 9:15 p.m. On the day in question, claimant Nancy C. Collins was
driving a 1988 Chevrolet S-b pickup truck. The vehicle was owned by her husband
Alfred E. Collins. Mrs. Collins was traveling southbound on State Route 65 in
310 REPORTS STATE
COURT OF CLAIMS [W.Va.
North Matewan, Mingo County. According to Mrs. Collins, she was traveling at
“no more than twenty-five miles per hour.” The posted speed limit was
forty-five miles per hour. It was a dark and rainy night. The roadway surface
was wet. The bridge at issue in this claim is commonly referred to as the Red
Jacket Bridge, and it is located in North Matewan. State Route 65 runs north and south across the Red Jacket Bridge. Mrs.
Collins routinely traveled this portion of highway. She traveled north on State
Route 65
and crossed the Red Jacket Bridge to
get to her place of employment, Mate Creek Mining Company, Inc., which is
located in Red Jacket. Mrs. Collins had worked for Mate Creek Mining Company,
Inc., for the previous six years, and she averaged working five days a week.
Red Jacket Bridge was under construction at the time of this incident.
Construction began on May 26, 1998, and the bridge was completely closed to
traffic going both directions. The respondent set up a detour around the
construction site just north of Matewan. The detour then crossed over a small
creek, curved back to the right to by-pass the construction on the Red Jacket
Bridge, and ended on the south side of the bridge where traffic was directed
back onto State Route 65 on the opposite side of Akers’ Supply Company, Inc.
The bridge was blocked off with four barriers on both ends. These barriers were
concrete and were similar or identical to the type of concrete barriers used to
divide an interstate highway.
Sometime between approximately 5:30 p.m. and 6:00 p.m. on Sunday, May 31, 1998,
claimant Nancy Collins went to work. She traveled Route 65 north to Red Jacket,
as she routinely did, to get to Mate Creek Mining Company, Inc. The visibility
at this time was good. Mrs. Collins testified that as she approached the detour
at the construction site, which would have been the south end of the Red Jacket
Bridge. all she saw was “a piece of large equipment setting in front of the
bridge in the road, that side of the bridge (the south end of the bridge) in
front of the bridge.” Mrs. Collins testified that she knew that the bridge was
closed on the south end. She had traveled that very same route on four separate
days during the previous week. Mrs. Collins got off work at approximately 9:00
p.m. and proceeded to travel back to her home in Matewan. She was traveling
south on State Route 65 when she drove around a curve and caine upon a small
straight stretch just before the Red Jacket Bridge. As she approached the Red
Jacket Bridge, two of the four concrete barriers were opened up, giving her the
impression that southbound traffic was being directed through the barriers.
Previously these barriers on both sides of the bridge were placed upright, side
by side, blocking access to the bridge. Mrs. Collins testified that on one of
the open barriers there was a” red fluorescent type arrow “. She testified that she thought this arrow was directing
her to travel between the barriers and then across the Red Jacket Bridge.
As she started to drive between the two open barriers, her vehicle suddenly
struck another concrete barrier that was knocked over on its side. She stated
that she did not see this barrier due to the darkness and the rain. Her vehicle
struck the
W.Va.J REPORTS
STATE COURT OF CLAIMS 311
barrier resulting in a violent impact of her vehicle with the barrier when the
vehicle came to a dead stop.
Claimant states that upon striking the barrier, the impact threw her forward
and her head struck the windshield, causing the windshield to shatter. She
described the impact as violent. It jerked her backwards and forwards, knocking
her head into the side window. After the vehicle came to a stop, claimant took
her seatbelt off and quickly exited the truck. Local residents came to assist.
She went inside one of their homes and someone called the police for help.
Sergeant Scott Wigal of the West Virginia State Police responded to the scene
of this accident to conduct a formal investigation.
Claimant did not go to the hospital on the night of this incident; however, she
was in serious pain the day following the accident so she had her husband,
claimant Alfred Collins, drive her to the emergency room at Williamson Memorial
Hospital where she was treated and released. The claimant was instructed to
follow up with another physician upon release. She then sought treatment from
Dr. Lura Beth Williams, a Doctor of Chiropractic, located in South Williamson,
Kentucky.
Claimants assert that respondent negligently placed barriers at the bridge
site; that it negligently failed to illuminate the bridge; and that it failed
to place the proper warning signs and]or signals in place for the southbound
traffic. Claimant Nancy Collins asserts that respondent’s negligence has caused
her serious injuries including injuries to her neck, mid back, low back, and
hip. She is seeking an award for past medical expenses, economic loss both past
and future, and pain and suffering. Claimants A Ifred E. C ollins and Nancy C.
C ohms h ave b een married seventeen years. Alfred Collins seeks an award for
loss of consortium due to his wife’s injuries. He asserts that his wife’s
injuries have negatively affected their marital relationship. He also seeks an
award for damages to his truck in the amount of
$2,800.00.
Respondent’s position is that Nancy Collins was or should have been aware of
the on-going construction project at the Red Jacket Bridge and that the bridge
was closed. Further, she could and should have avoided the barriers completely
by simply using the detour. The project to repair the Red Jacket Bridge began
on Tuesday, May 26, 1998. Respondent argues that since claimant traveled this
same portion of road to and from work on May 26, May 27th, May 28th, and
fmally on her way to work on the evening of the incident, Sunday, May 31, that
she knew or should have known the bridge was closed. Respondent argues, since
claimant knew that the northbound portion of the bridge was closed as she
traveled to her job at approximately 5:30
p.m. on May 31, she should have also
known that the southbound portion of the bridge was closed as well. Respondent
also contends that if there were any problems with warning signs or the
placement of the barriers, it did not have notice of these problems until after
claimant’s accident on May 31, 1998.
312 REPORTS
STATE COURT OF CLAIMS [W.Va.
Sergeant Scott Wigal was the Assistant Detachment Commander in Mingo County at
the time of this incident. Sergeant Wigal arrived at the scene at 9:35 p.m., shortly after the incident. He testified that
although he vaguely remembers being at the scene of this accident near Red
Jacket, he did not have any specific recollection of the details other than the
information provided in the Uniform Traffic Accident Report which he completed
on May 31, 1998. Sergeant Wigal took Mrs. Collins’ statement at the scene. He
noted in his report that Mrs. Collins did have both her lap and shoulder
harness belts on at the time of the incident. He also noted the weather and
road conditions at the time of the accident. Specifically, he noted that it was
dark, rainy, and that visibility was obscured by the rain. In addition, the
black top road surface was wet. Sergeant Wigal concluded that Mrs. Collins
“Failed to Maintain Control” of her vehicle and that her vehicle collided with
a concrete barrier in the roadway. He testified that it was his opinion that
claimant’s failure to maintain control of her vehicle was a contributing cause
to this incident. He did not cite the claimant with any improper driving nor
did he conclude that she was speeding or driving too fast given the circumstances.
When questioned to clarify his fmding that claimant failed to maintain control
of her vehicle, he responded that based upon his training at the academy, a
driver has a responsibility to avoid colliding with “normal things like road
construction equipment and barriers and so forth.”
Sergeant Wigal’s testimony regarding the signs at or near the scene also was
based upon the notes he made in the Uniform Traffic Accident Report. He stated
that he had no direct memory of it, but, referring to the accident report, he
noted that there was a detour sign north of the concrete barriers and a bridge
closed sign just south of the concrete barriers in the vicinity of the accident
vehicle. Sergeant Wigal indicated in his report that the “Bridge Closed” sign
was lying on the roadway near claimant’s vehicle. He also testified that there
was a detour sign north of the concrete barriers, but he did not recall any
other detour signs, bridge closed signs, or other warning devices, including
flashing lights and he did not indicate any being present at the scene in his
report. Sergeant Wigal admitted that if there had been any other signs,
flashing lights, or red flags, he probably would have indicated such in his
report. He also agreed that since his report made no mention of any illumation
on the side of the bridge which claimant struck, it was safe to conclude that
there was no such illumination. It was his opinion that the vehicle had struck
two concrete barriers and then came to rest in between the two barriers. However,
he did admit after reviewing photographs of the vehicular damage submitted in
evidence that this evidence did raise some questions as to whether or not
claimant may have struck a third barrier which had been lying in the roadway on
its side and that this would be consistent with the damage to claimant’s
vehicle.
An owner of a business adjacent to the accident site, David B. Akers, testified
about the scene of this incident as well as testifying regarding the number of
accidents at this location, both prior to and after claimant’s i ncident. Mr.
Akers
W.Va.] REPORTS
STATE COURT OF CLAIMS 313
described the detour scene. He stated that there were four concrete barriers at
each end of the bridge which were lined up side by side in a straight line so
as to completely block traffic from crossing the bridge. These barriers were
approximately thirty-six to forty inches high. However, the barriers were not
locked together nor were they anchored to the ground. Mr. Akers testified that
these barriers were struck numerous times by other vehicles. He testified that
there were approximately ten accidents involving vehicles colliding with these
barriers within the first week to ten days of this project. Although he never
saw any vehicles strike the barriers, he heard many of the collisions and he
assisted drivers whose vehicles had struck the barriers or whose vehicles got
stuck on the barriers. Mr. Akers and some of his employees would use Akers’
heavy equipment to assist respondent’s bridge crew in replacing the barriers.
Mr. Akers also testified that these barriers had arrows painted on them with a
fluorescent orange or red-like color that directed the southbound traffic to
veer to theleftto enterthe detour. He statedthattherewerenotany signs, s
ignals, or directions other than the arrows painted on the barriers, indicating
to the traffic that it had a left detour ahead. It was his opinion that this
was one of the main reasons why so many vehicles collided with these barriers.
He described how drivers traveling south on State Route 65 would come upon this detour suddenly and without
adequate warning. Furthermore, the detour sign referred to in the accident
report is approximately a quarter mile north of the project. He does not recall
any other signs between this detour sign and the bridge. In his opinion, many
drivers did not realize that there was a detour, and their vehicles would clip
the barriers and knock some of them over. He also testified that when these
barriers were hit and turned sideways, “it would have been pretty likely that a
car could have went through there.”
David McCoy also testified regarding the nature of this construction site, and
as to the number of accidents involving v ehicles s lamming into the concrete
barriers. David McCoy’s home is adjacent to the Red Jacket bridge. The front of
David McCoy’s home is approximately thirty-five to forty feet from the nearest
barrier. He heard many vehicles collide with the concrete barriers, and he
would see the damage to the barriers and how much they had been moved around as
a result of these collisions. He helped people who had just struck the barriers
to make sure they were all right, and he also assisted the employees from
Akers’ Supply in placing the barriers back into position so as to prevent anyone
else from striking them. Mr. McCoy also testified that most of the collisions
occurred at dark or just before dark. He explained during his testimony that
his son had driven his vehicle into the same concrete barriers that the
claimant drove into. He testified that his son’s vehicle collided with these
barriers at “a high rate of speed either on May 29 or May 30, 1998.” This
collision displaced the barriers, and, according to David McCoy’s, testimony,
the barriers were not replaced or moved back into position so as to fully block
the bridge. As far as warning signs are concerned, David McCoy testified that
314 REPORTS STATE
COURT OF CLAIMS [W.Va.
there was a “Bridge Closed” sign that was set up on something like a tripod
brace.
He testified that the sign did not always stay up throughout the bridge
construction.
It was knocked over “routinely” by people and the wind would even blow it down.
He had to pick the sign up on at least four different occasions and set it back
up.
Respondent asserts that it was in total compliance with the Federal Traffic
Control Manual for Street and Highway Construction and Maintenance Operations,
adopted by the West Virginia Division of Highways in 1994. Specifically, the
respondent was referring to C ase Al 2 of the Manual. The respondent presented
testimony through Edwin Layman, who is the Transportation Services Supervisor
for District II, regarding the requirements of the Case A12 and its application
in this case. Mr. Layman testified that he was responsible for having the
proper signs in place at the construction project in accordance with the
provisions of the manual. He sent his crew to set up the signs at this project
and he went to the project shortly afterwards and field checked what had been
done on May 27, 1998. Mr. Layman testified that when a project falls under the
specifications of this manual, then it must be used, and all specifications
must be followed. He also testified that he took a copy of the Case A12 diagram
and slowly drove through the project to make sure that each sign that was
required to be in place according to the manual was actually in place.
ANALYSIS AND CONCLUSIONS OF LAW
The well established principle of law in the State of West Virginia is that the
State is neither an insurer nor a guarantor of the safety of travelers upon its
roads. Adkins v. Sims, 130 W.Va.645; 46 S.E.2d 81(1947). However, the State does have a duty
to exercise reasonable care and diligence in the maintenance of its highways
under all circumstances. Adams vs.
Dept. of Highways, 14 Ct. Cl. 214
(1982); Hobbs vs. Dept of Highways 13 Ct. CI. 27 (1979). In order to hold the respondent
liable for road defects of this type, a claimant must prove that respondent had
actual or constructive n otice o ft he de fect and a r easonable time to take c
orrective a ction. Chapman vs. Dept.
of Highways, 16 Ct. Cl. 103 (1986).
Finally, to be actionable, negligence must be the proximate cause of the
claimant’s injuries. Louk vs. Isuzu
Motors, Inc. 198 W.Va. 250; 479 S.E.2d
911(1996); Roush v. Johnson, 139 W.Va. 607, 80 S.E.2d 857 (1954).
The first issue in this claim is
whether or not the respondent had the proper signs in place to provide adequate
notice to drivers that the Red Jacket Bridge remained closed to southbound
traffic on Route 65. Second, if respondent did have the proper warning signs in
place, were these placed in a proper, secure manner and in proper working
condition. Given the testimony presented at the hearing of this matter, it is
this Court’s opinion that respondent did not fulfill its obligations to the
claimant herein.
A review of the testimony from various witnesses familiar with this scene and
State Route 65 establishes that there was inadequate warning to the southbound
traffic of the approaching detour. It is evident that the “bridge closed” sign
was not
W.Va.] REPORTS
STATE COURT OF CLAIMS 315
properly placed nor secured, so as to give motorists warning that there was a
detour and that the Red Jacket Bridge remained closed.
The lack of signs or notice of the detour created a hazardous situation for
drivers approaching the Red Jacket Bridge from the north. Unfortunately, an
already dangerous situation was made worse by the improper placement and use of
the concrete barriers which were used primarily to block the entrance to the
bridge, but they also were used to channel the traffic through the detour with
the use of the painted orange arrows. Testimony adduced from numerous witnesses
leads the Court to conclude that the lack of proper signs and the improper use
of and placement of the concrete barriers created what was in essence a trap
for unsuspecting motorists, especially for those motorists traveling at night.
There was insufficient illumination on the bridge and the barriers. There is
also undisputed testimony that these barriers had arrows painted on them with
an orange fluorescent-type paint. The lack of warning signs, along with the
lack of adequate illumination, apparently made it very difficult for drivers to
see that there was a detour and that they were approaching a concrete barrier.
The Court is of the opinion that it was foreseeable that a driver approaching
the Red Jacket Bridge and observing the barriers inadvertently could drive
through the barriers and have a collision. The fact that the barriers were not
secured together or anchored in some way so that no separation could occur if
the barriers were moved by traffic allowed the barrier with an arrow on it to
move in such a way as to create a trap for an unsuspecting driver. The evidence
adduced at the hearing, especially the photographs of the damage to the
vehicle, indicate that Mrs. Collins did in fact have enough room to maneuver
her truck between the two open barriers to cross what she thought was the Red
Jacket Bridge and then strike a barrier knocked over on its side. The
photographs of the vehicle Mrs. Collins was driving clearly show that she did
not simply crash into two upright barriers. The photographs of the damage to
her vehicle are consistent with her version of the accident as the damage was
limited to the lower left portion of the vehicle. Officer Wigal also testified
that whatever impacted the truck hit it at a height of approximately eighteen
inches, which is much more consistent with striking a barrier turned over on
its side than one standing upright. This evidence leads the Court to the
conclusion that there was enough room for Mrs. Collins to maneuver her vehicle
through the two barriers where it struck the barrier which was already knocked
over on its side. Thus, there was a combination of negligent acts and omissions
on the part of the respondent that constitutes the proximate cause of this
accident.
However, the Court is also of the opinion that Mrs. Collins was twenty percent
at fault in this incident. The evidence adduced at this hearing also
established that Mrs. Collins was familiar with State Route 65. She was aware that the Red Jacket Bridge was under
construction as of May 26, 1998, and that it was closed to both northbound and
southbound traffic. She also passed the construction
316 REPORTS
STATE COURT OF CLAIMS [W.Va.
site as she traveled through the detour three different times to and from work
prior to the night of the accident. On the date of the accident May 31, 1998,
Mrs. Collins passed the Red Jacket Bridge while driving north to her place of
employment. Given the fact that she knew that the bridge had been totally
blocked to traffic in both directions as she came home from work on May 26, May
27, and May 28, she should have been more cautious as she returned home from
work on May 31, 1998. Although the respondent did not have adequate signs in
place, and was negligent in the use and placement of the concrete barriers, she
should have traveled at a slower rate of speed than that at which she was
traveling. Therefore, the issue of the adequacy of signs at the scene is
negated by the fact that Mrs. Collins had driven through the area several times
prior to the night of her accident. However, the Court is of the opinion that
if she had been traveling at a slower rate of speed, she may have been able to
avoid the dangerous trap that awaited her, or at least reduced her damages. The
Court concludes that claimant Nancy C. Collins be assessed twenty percent for
her comparative negligence.
DAMAGES
Claimant Nancy Collins suffered serious physical injuries as a result of
this incident. She testified to the Court that she is in constant pain. She has
a great deal of pain including headaches, neck pain, mid-back pain, low-back
pain, and pain in her right hip. Mrs. Collins also had a noticeable limp due to
the injury to her right hip. Dr. Lura Beth Williams, D.C., treated Mrs. Collins
for approximately five months. She ran numerous diagnostic tests including
physical exams, x-rays, ultrasounds, and a CPT current perception threshold,
which is a nerve study. Dr. Williams diagnosed Mrs. Collins as having sub-acute
cervical strain and localized edema and scarring in this same region. This has
resulted in diminished movement and function of the muscles in the cervical
region. Dr. Williams also diagnosed her with lumbar strain, edema, and
scarring. Also, there are some arthritic changes to the facets in the lumbar
region.
Mrs. Collins also suffers from a limp on her right side due to a s erious
sprain, strain, and muscle compensation to her hip. Dr. Williams testified that
Mrs. Collins is “antalgic” meaning that she is unable to stand erect. She also
lacks range of motion in her hip demonstrating significant trauma to this area.
Mrs. Collins also suffers from a leg length discrepancy due to the injuries to
her leg and hip muscles.
Dr. Williams treated Mrs. Collins by applying adjustments to her injured areas
along with other conservative treatment. When Dr. Williams was not able to
treat Mrs. Collins to a state at or near her pre-accident physical condition,
she recommended cessation of the treatment.
Claimant a iso w as t reated b y D r. P anos Ignatiadis, a n
eurosurgeon, w ho performed an MM on Mrs. Collins. He did not find any need at
that time for surgical intervention. Mrs. Collins had a second MM in January
2001 at the request of her family physician, Dr. Camomot. This MM was performed
on her cervical spine, her
W.Va.] REPORTS
STATE COURT OF CLAIMS 317
right hip, and her proximal femur. The fmdings were as follows: degenerative
disc disease from levels C3 through C7; obliteration of the spinal foramina at C4-C5;
and at C5-C6. Finally, Mrs. Collins also suffers from osteoarthritic
changes in her hips.
These injuries have caused Mrs. Collins a great deal of pain and suffering,
loss of enjoyment of life, and depression. She is unable to perform those
duties around the home that she formerly was able to do. She requires the help
of her husband to get through her daily life. It is difficult for her to bathe,
cook, and clean house due to the pain. She is now on anti-depression medication
as a result of her injuries. She is no longer able to work due to her injuries
and she has been declared disabled. She receives disability from the Social
Security Administration.
Both Mr. and Mrs. Collins testified that this incident has had a very negative
effect on their marriage. Mr. Collins testified that his wife is not as happy
or as active as she was before this incident. This incident has also had a
dramatic effect on the claimants’ personal and intimate relations as well. The
Court is of the opinion that claimant Alfred E. Collins has suffered a loss of
consortium as a result of the injuries to his wife and theloss ofhistruck.
Therefore, the Court findsthatthe claimant Alfred E. Collins is entitled to an
award of $7,800.00. The Court also fmds that claimant Nancy C. Collins is
entitled to an award of $96,000.00 which amount is reduced by the assessment of
comparative negligence for a total award of
$76,800.00.
In accordance with the finding of facts and conclusions of law as stated herein
above, the Court makes an award in the amount of $76,800.00 to claimant Nancy
C. Collins and an award in the amount of $7,800.00 to claimant Alfred E.
Collins.
Award of $76,800.00 to Nancy C. Collins.
Award of $7,800.00 to Alfred E. Collins.
OPINION ISSUED JUNE 29, 2001
JEREMY TAIT HUNT
VS.
DIVISION OF HIGHWAYS
(CC-96-492)
Letisha Bika, Attorney at Law, for claimant.
Andrew F. Tan and Xueyan Zhang, Attorneys at Law, for respondent.
STEPTOE, JUDGE:
318 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claimant, Jeremy Tait Hunt, brought this action for permanent physical injuries
he sustained when the vehicle in which he was a passenger went off a bridge on
Sate Route 49 in Thacker, Mingo County. The driver of the vehicle and claimant
were traveling northbound between Edgarton and Matewan. At this location, State
Route 49 is maintained by respondent, the Division of Highways. The Court is of
the opinion to disallow this claim for the reasons more fully stated below.
FACTS OF THE CLAIM
The incident giving rise to this claim occurred on June 26, 1993, at
approximately 12:30 p.m. On the day in question, the sixteen year-old claimant
was a passenger in a 1991 Ford Escort driven by Celia Michelle Murphy.’ The
vehicle was owned by Ms. Murphy’s father, Larry Murphy. Ms. Murphy and the
claimant were traveling northbound on State Route 49 at a speed of about thirty
to thirty-five miles per hour, in the opinion of Ms. Murphy. The unposted speed
limit for this road was fifty-five miles per hour. Ms. Murphy regularly
traveled this portion of road of State Route 49 on her way to and from high
school. She was very familiar with the road. At the time of the incident
herein, claimant and Ms. Murphy were proceeding from her residence in Edgarton
towards Matewan with the fmal destination being the Huntington Mall.
At this location, State Route 49 is a two-lane road with double yellow lines
indicating the center of the road and white lines on the edges of the pavement.
Ms. Murphy testified that the road was in a state of disrepair. She asserted
that there were ruts in the pavement. The weather on the day in question was
rainy and the roads were wet. As Ms. Murphy drove over a crest at the top of a
hill on State Route 49, she p roceeded do wnhill towards the Grapevine Bridge
at the b ottom. When the vehicle began moving downhill, Ms. Murphy testified
that the vehicle began to hydroplane and she lost control of the vehicle. She
panicked, shut her eyes, and took her hands off the steering wheel. Ms. Murphy
further testified that after she released the steering wheel, she remembered
the claimant having grabbed the steering wheel. At that point, the vehicle left
the surface of the road, went to the right of the Grapevine Bridge, proceeded
in the air across Grapevine Creek and Lick Fork Road, struck the northeastern
side of the embankment at the north end of the bridge, flipped in the air, and
landed on its top on Lick Fork Road directly beneath the Grapevine Bridge. Ms.
Murphy sustained personal injuries which were not permanent in nature. Ms.
Murphy recalled that she did not have the automatic shoulder harness across her
body, but she did have on the lap belt. She did not believe that claimant had
on his lap belt.
‘Since the incident in question, Celia Michelle Murphy has married and her name
has changed to Celia Michelle Stumbo. The Court will refer to this witness
using her maiden name.
W.Va.J REPORTS
STATE COURT OF CLAIMS 319
The claimant herein was very familiar with State Route 49 at the scene of this
accident. He went back and forth to high school using this stretch of roadway.
On the day of this incident, he explained that he was tired as he had worked
that night before and his mother took him to Michelle Murphy’s home so the two
of them could go to the Huntington Mall. He testified that it was raining at
the time. He was in a reclined position in the passenger seat in the vehicle
with both of his seat belts, the lap belt and the shoulder harness, in place.
He recalled that he heard Ms. Murphy scream, he then raised up in his seat,
leaned forward to try to place his hands on the dashboard, and realized that
they were already going off the bridge. He stated that he “didn’t have time to
even say nothing (sic). I was just overwhelmed by what was happening. It just
was unreal.” In his opinion, the vehicle was going 40-45 miles per hour immediately prior to the accident.
Claimant testified that there were two sags in the pavement in their lane of
travel, one located about six to eight inches from the yellow line and the
other located about one and one-half to two feet from the white line. He
remembers being in the vehicle under the bridge after the accident, but he
could not see because of an injury to his forehead. He described Ms. Murphy as
being “hysterical and freaked out.” He felt numb, his face was sore, and he was
having trouble breathing so he “kind of laid still.”
Emergency personnel were alerted by some people who were at the scene under the
bridge. The emergency crews arrived at the scene in order to transport both
claimant and Ms. Murphy. Claimant was taken to an area where a medical
helicopter flew him to St. Mary’s Hospital in Huntington, Cabell County,
because of the severity of his injuries.
Claimant i n this action contends that the respondent was negligent in its
maintenance of State Route 49 and the Grapevine Bridge on State Route 49 on the
date of the accident described herein above. Claimant asserts that respondent
failed to properly maintain the road surface of State Route 49, specifically on
the downgrade portion approaching the Grapevine Bridge, and that this failure
caused the vehicle in which claimant was a passenger to hydroplane. Further,
claimant alleges that respondent failed to replace a portion of the guardrail
that was missing on the Grapevine Bridge and that this guardrail would have
prevented the vehicle in which he was a passenger on June 26, 1993, from going
over the embankment and landing in the area below the bridge, causing him to
suffer severe injuries.
Respondent’s position is that the proximate cause of the accident was the
failure of the driver to maintain control of her vehicle; the speed of the
vehicle at the time of the accident; the action of the claimant in grabbing the
steering wheel; and the condition of the tires on the vehicle. As to the issue
of the maintenance of the bridge, respondent asserts that the guardrail was not
a factor in this claim for two reasons: first, the area where the vehicle in
which claimant was a passenger went off the Grapevine Bridge on State Route 49
was an area where the missing guardrail would not have extended; and second,
even if the guardrail were present, the accident
320 REPORTS
STATE COURT OF CLAIMS [W.Va.
still would have occurred and the vehicle still would have gone into the ravine
resulting in the injuries to the claimant.
This accident was investigated by a member of the West Virginia State Police,
Trooper First-Class Michael Allen Smith. At the location in question, Trooper
Smith took about thirty photographs of the scene which were admitted into
evidence. Statements from the claimant and Ms. Murphy were taken on another
occasion by another trooper. Trooper Smith concluded in his Uniform Traffic
Accident Report that the driver of the vehicle, Ms. Murphy, was exceeding a
safe speed limit due to the fact that she lost control of the vehicle, it was
raining, and the surface of the road was wet. He came to this conclusion
because there were no observable skid marks and the vehicle had crossed the
area over Grapevine Creek and Fork Lick Road before striking the other side of
the embankment. Although the speed limit for State Route 49 at this particular
location is 55
miles per hour, Trooper Smith
acknowledged that there was a difference between the speed limit and a safe
speed. He was of the opinion from his observations at the accident scene that
Ms. Murphy should have been operating the vehicle at a slower speed. It is his
opinion that “a driver has to adjust for any conditions he might encounter.
Just because the speed limit is say for instance 55 or 75 on the highway, you know, if safety doesn’t
warrant that speed, you shouldn’t go that speed.” Ms. Murphy was not issued a
citation by Trooper Smith for this incident. Trooper Smith did not recall seeing
any ruts in the road surface of State Route 49. He stated that if he had
thought that there was a problem with the road, he would have taken photographs
of the area. He was also of the opinion that he would have taken additional
photographs of any unusual conditions on the surface of Route 49 if he had
noticed these during his investigation. He was of the opinion that he
remembered being concerned about all of the area surrounding the accident scene
due to the severity of the accident. He was requested to review photographs of
the accident scene during his testimony and he made various marks on these
photographs including a mark on the a photograph of the hillside where he
thought the vehicle struck the hillside before falling into the area beneath the
bridge.
The Grapevine Creek Bridge was constructed by respondent in 1961. It is
sixty-three feet in length, twenty-three feet five inches in width and has a
weight limit of fourteen tons. Since the bridge has a weight limit of less than
fifteen tons, it is not a posted bridge. The bridge is suspended about
twenty-five feet over Grapevine Creek and Lick Fork Road. Proceeding
northbound, the bridge first crosses over Grapevine Creek and then it crosses
over Lick Fork Road. A power line is suspended about one-quarter from the
southern end of the bridge over Grapevine Creek.
The evidence in this claim establishes that bridges throughout the State of
West Virginia are inspected every two to four years in accordance with federal
regulations. These inspections are performed by individuals designated as
bridge
W.Va.J REPORTS
STATE COURT OF CLAIMS 321
inspectors and reports are written for the specific bridge inspected.
Generally, within one month of a bridge inspection, the report is prepared.
This report is reviewed by an evaluation engineer who signs it on the first
page and by the bridge engineer in the particular district. These reports are
then sent to respondent’s office in Charleston. If there is a critical
structural problem, the evaluation engineer informs his superior or a
supervisor in the area immediately. Otherwise, t he repair process may take
longer. For the Grapevine Bridge, Mansour Saber was the evaluation engineer.
His focus for the bridge inspection reports is to note any deficiencies in the
structure of the bridge, i.e., the underneath of the bridge, the steel, the
connection, anything that might indicate that the bridge could fall. Any
non-structure related problems such as the condition of the guardrails on the
bridge are not within his area of responsibility. The bridge engineer would be
the individual in a district to address an issue regarding guardrails.
During the hearing of this claim, four of respondent’s bridge inspection
reports dated December 11, 1989; May 16, 1989; May 20, 1991; and June 3, 1993,
were admitted into evidence. Each report included photographs of the location
in question, and each report indicated that eighteen feet of guardrail on the
eastern side of the bridge was missing. Bridge Inspector Johnie Lee Clagg
inspected the bridge on December 11, 1989, and noted in his report that a
portion of guardrail was missing. His inspection report also noted that as of
December 11, 1989, the Grapevine Bridge was not in a safe condition and
corrections should be made. During the six years following the December 11,
1989, report, until the date of claimant’s incident, the condition of the
bridge remained unchanged even though the average daily travel count increased
from 1,900 to 3,300 vehicles by June 3, 1993. Bridge Safety Inspector III,
Roger Eugene Chapman, inspected the bridge on June 3, 1993. In that report, he
noted that the guardrail was damaged, in critical condition, and should be
replaced. However, he could not remember having seen any approach guardrail at
this location on the Grapevine Bridge in any of his inspections of the bridge.
These reports substantiate the allegation of the claimant that there was
guardrail missing on the Grapevine Bridge and that this fact was known by the
bridge inspectors who were assigned to inspect this bridge.
According to District II Administrator Wilson Braley, the May 16, 1989, report
that indicated the deficiencies on the Grapevine Bridge, including the missing
guardrail, created a critical condition on the bridge. He stated that guardrail
at the ends of the bridge are flared out and were not attached to the side of
the bridge. In addition, he acknowledged that the May 20, 1991, report also
mentioned that the guardrail was in critical condition and needed to be
replaced.
As the District II Administrator, it was Mr. Braley’s responsibility to assign
the work for guardrail repair. If the project was one that would take three to
six months to complete, he would obtain a purchase order and hire a contractor
to do the project. I n order t o replace the missing guardrail on the Or
apevine Bridge, Mr.
322 REPORTS
STATE COURT OF CLAIMS [W.Va.
Braley testified that two pieces of guardrail should have been sufficient to
complete the project. Guardrail usually comes in sections about thirteen feet long
to provide coverage for an area of about twelve feet, six inches. Guardrail is
connected with vertical posts, often called “lookout posts.” The “lookout
posts” are welded to the outside beam of the bridge.
From 1985 to 1987, respondent’s maintenance office in Mingo County stocked
guardrail and would have been responsible for its installation. The Mingo
County Supervisor, Barry Mullins, testified that he is on State Route 49 on a
regular basis, but he did not inspect the bridge for any missing guardrail. He
asserted that if he had seen any missing guardrail, he would have had it
replaced. He further stated that he would remedy any hazard or danger
immediately. Of course, these repairs would be temporary because the Mingo
County office does not have the equipment or skill to conduct more permanent
guardrail repairs. He stated that once he received notice of an incident, he
would make an on-site inspection of the area in question. Evidence adduced at
the hearing indicated that the West Virginia Maintenance Manual (1989 edition)
states that guardrail inspections are to take place twice per year. Repairs are
to be noted on a form in triplicate and scheduled. Mr. Mullins stated that his
office does not have any such form and no such inspection program is in place.
Maintenance Assistant Jimmie Messer testified that when guardrail is missing,
he would discuss the issue with the County Supervisor and no written records
would be made unless there was a complaint. According to Mr. Messer, in 1993,
if guardrail was damaged in a few sections, a contractor would do the routine
replacement work, but he was not prepared to testif’ if that extended to
bridges.
According to claimant’s expert Dr. Kenneth William Crowley, a highway traffic
engineer, if the missing section of the guardrail on the Grapevine Bridge would
have been properly maintained, this incident involving the claimant would not
have occurred. Dr. Crowley did not visit the site, but he based his
calculations on the measurements obtained by Donald Underwood, respondent’s
expert in accident reconstruction. Although, Dr. Crowley used these
measurements, he opined that the measurements obtained by respondent gave “the
illusion of precision.” Moreover, it is Dr. Crowley’s opinion that the purpose
of guardrail is to help keep errant vehicles on the road. The presence of
guardrail extends the time for vehicular stopping points and reduces the
severity of impacts. Dr. Crowley acknowledged that guardrail is a hazard in and
of itself, so it is only placed where it is needed.
In order to establish his position, Dr. Crowley calculated two momentum
analyses of the incident in question. The concept of “momentum” was defined as
weight of a vehicle times the speed of the vehicle times the angle of the
vehicle. The weight of the vehicle was estimated at 2,550 pounds, including the
vehicle and passengers. First, Dr. Crowley determined the speed of the vehicle.
He did this by calculating the distance traveled and the distance dropped based
upon the laws of speed and gravity. The speed of the vehicle was estimated
between thirty and fifty-
W.Va.J REPORTS
STATE COURT OF CLAIMS 323
three miles per hour. Ms. Murphy testified that the speed of the vehicle was
about thirty miles per hour. Claimant testified that the speed of the vehicle
was about forty- five miles per hour and Mr. Underwood determined the air speed
of the vehicle as it left the edge of the pavement at about fifty-three miles
per hour. Dr. Crowley opined that the highest possible speed of the vehicle was
fifty- eight miles per hour.
Calculating the angle of impact of the Murphy vehicle with the guardrail was
also part of Doctor Crowley’s analysis in this claim. He used impact angles of
twenty-five degrees for the first analysis and fifty-three degrees for the
second analysis. He determined the angle of impact from tread marks he
identified in photographs. It is his opinion that the tire marks on the bridge
indicate that the vehicle was going straight and that it was not skidding at
the point of impact. The trajectory of the vehicle followed the bridge. If the
vehicle had impacted higher on the embankment, the speed would be higher than
if the point of impact was lower on the embankment. Based upon his calculation,
Dr. Crowley determined that the impact momentum would b e 1 ess than the w
eight o ft he M urphy vehicle; therefore, t he presence of guardrail would have
contained the Murphy vehicle on impact and directed it back to the road. Dr.
Crowley opined that at the top speed of the vehicle, the guardrail would have
directed the Murphy vehicle to a safe situation.
At thirty-five miles per hour, Dr. Crowley opined that the vehicle would have
struck the base of the embankment. Dr. Crowley also estimated the speed needed
to clear the power wire under the bridge at thirty-five miles per hour.
Furthermore, Dr. Crowley defined the action of vehicular hydroplaning as being
the involuntarily loss of control by the driver of the vehicle because of water
on the road surface. Turning the steering wheel while hydroplaning would not affect
control of the vehicle. Dr. Crowley stated that it would be possible for a
vehicle to hydroplane with ruts in the road surface. The tire would float in
the low spots or ruts in the road. Dr. Crowley was unable to opine whether
claimant’s action in grabbing the wheel was prudent because it would depend on
the situation. If the pavement had been dry, Dr. Crowley believed that the
vehicle would have veered to the left or right.
Since early 1999, respondent’s expert in auto accident reconstruction, Donald
Lee Underwood, visited the accident site six times. On three occasions, he and
Charles Raymond Lewis, II, a traffic engineer for respondent, searched for a
possible point of impact of the Murphy vehicle in the northeastern side of the
embanicinent. In the spring of 2000, Mr. Underwood found what they believed to
be physical evidence of the point of impact of the vehicle. Mr. Underwood was
climbing on the embankment when he found a small piece of glass in the
hillside. It is his opinion that the glass was of the type used for automobile
headlights. Therefore, he believed that this was the point of impact for the
Murphy vehicle. Mr. Underwood acknowledged that he was not sure if the glass
that he found belonged to the Murphy vehicle. Also, Mr. Underwood was unaware
of other accidents in the
324 REPORTS
STATE COURT OF CLAIMS [W.Va.
same location and he acknowledged that vegetation had growll up in the area and
it is a rocky embankment.
Mr. Underwood used the angles, distances, and elevations based on the glass
shard to calculate the point of impact. He also based this point upon a survey
of the bridge performed by Roger Newsome, one of respondent’s surveyors, who
calculated the elevation by establishing a point on the bridge and measuring to
the point of impact on the hillside. The slope was determined to be 61.70 feet
and the elevation was determined to be 100 feet. A vertical distance of 8.49
feet was determined from the point where the glass was located in the hillside
to the top of the emban]cment. The 8.94 feet is the difference in elevation
from the abutment on the southern wing wall to the point of impact. Using the
survey results, Mr. Underwood then calculated the point of impact of the Murphy
vehicle and the speed at which the vehicle was traveling when it left the
roadway. Mr. Underwood determined the airborne speed to be fifty-three miles
per hour.
As a part of his investigation, Mr. Underwood examined the photographs taken of
the scene on the day of the incident. One of the photographs depicts a tire
imprint on the abutment. Mr. Underwood opined that this was characteristic of a
rolling tire, which he believed indicated no brake application. However, Mr.
Underwood was unaware of which tire of the Murphy vehicle if any made the
impression. He acknowledged that if in fact the mark was from the passenger
side tire, then the Murphy vehicle would have been going slower according to
his speed calculation. Mr. Underwood also acknowledged that the speed
calculation is sensitive. He estimated a measure of five miles per hour per one
foot drop. Mr. Underwood could not precisely pinpoint the point of departure
and no measurements were made. In addition, Mr. Underwood testified that
photographs of the Murphy vehicle after the incident indicates evidence of tire
wear. He could obtain the speed of the vehicle only from its point of departure
from the bridge, which he termed the “airborne speed.” Based upon all the
factors that he took into consideration, he was of the opinion that the
calculation of speed of the Murphy vehicle at fifty-three miles per hour was
reasonable and accurate.
ANALYSIS AND CONCLUSIONS OF LAW
The Court desires to first address respondent’s contention that the
claimant was somehow negligent in his action if he grabbed the steering wheel
in an attempt to prevent an accident. The Court is of the opinion that the
facts do not support this contention. The driver of the vehicle stated that she
closed her eyes and took her hands off the steering wheel when she felt the
vehicle was out of control. The claimant remembers being in a reclined position
and having time only to reach for the dashboard before the vehicle was
airborne. The Court believes the claimant’s version of his own actions.
Accidents occur in milliseconds of time. The driver had her eyes closed as well
as being hysterical so it is difficult to believe that she would have been
cognizant of what was going on inside the vehicle. Even if her version is
W.Va.J REPORTS
STATE COURT OF CLAIMS 325
to b e b elieved, would not a reasonable, p rudent p erson observing that
the dr iver released the steering wheel be in a position of feeling forced to
grab the steering wheel of the vehicle? Is this not the expected reaction of a
passenger in an emergency situation? This Court cannot agree with the position
of the respondent. In fact, the sudden emergency doctrine is a viable doctrine
under comparative negligence. Moran v. Atha Trucking, Inc., 208 W.Va.
379, 540 S.E.2d 903 (1997). The sudden emergency doctrine defmes conduct
to be that expected of a prudent person in an emergency situation. The
essential element of the sudden emergency doctrine is that a party not have
time for reflection. The Court is of the opinion that the doctrine could be,
and, in fact, would have been applicable to the claimant herein if the Court
had found that the evidence established that the claimant had grabbed the
steering wheel in an attempt to gain control of the moving vehicle. However, as
previously stated, the Court concludes that the evidence does not support the theory
that the claimant is responsible in some way for the accident; therefore, there
is no basis for this position of the respondent.
Claimant alleges that the accident began when the vehicle began to hydroplane
on State Route 49 because r espondent’ s negligent maintenance of the surface
of State Route 49. The evidence fails to establish that the road surface was
the cause of the driver’s loss of control of her vehicle. The photographs taken
by Trooper First Class Smith, the investigating officer of the accident, and
placed in evidence do not exhibit any unusual road surface conditions. The
officer himself explained to the Court that if the road surface had exhibited a
condition other than that normally anticipated, he would have noted that fact
on his Uniform Traffic Accident Report. He indicated that he also would have
taken photographs of any abnormal road condition during his investigation. The
Court is of the opinion that Trooper First-Class Smith performed an in-depth
investigation of this accident and the Court accepts his statements about the
condition of the surface of State Route 49. Therefore, the C ourt c oncludes
that the c ause o ft he dr iver 1 osing c ontrol of h er vehicle was not the
fault of any negligent maintenance of State Route 49.
Therefore, the critical issue to be addressed in this claim is whether or not
there was a defective condition having to do with the guardrail and whether
respondent had notice of this defect and a reasonable time to repair it. The
claimant bases the crux of his claim upon the fact that a section of missing
guardrail on the Grapevine Bridge constitutes actionable negligence on the part
of respondent. The well-established principle of law in West Virginia is that
the State is neither an insurer nor a guarantor of the safety of travelers upon
its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947). In
order to hold respondent liable for road defects of this type, a claimant must
prove that respondent had actual or constructive notice of the defect and a reasonable
time to take corrective action. Chapman vs. Dept of Highways, 16 Ct. Cl.
103 (1986). When the condition of a bridge should have been anticipated by
respondent, its failure to maintain the bridge properly constitutes
326 REPORTS
STATE COURT OF CLAIMS [W.Va.
negligence. Eller vs. Div. of Highways, 13 Ct. Cl. 155 (1980).
This Court has also held that respondent does have a duty to maintain existing
guardrail or replace missing guardrail on bridges in a timely manner. Woody
vs. Dept. of Highways, 18 Ct. Cl.29 (1989). In Shabdue vs. Sims, the
Court held that the State’s failure to properly repair and maintain the floor,
railing, and guardrail of a bridge in a reasonably safe condition constituted
negligence. 142 W. Va. 805, 98 S.E.2d 433 (1957).
The evidence in this claim clearly establishes that the guardrail on the
Grapevine Bridge was defective; that respondent had actual notice of the
missing guardrail; and that respondent had a reasonable time in which to effect
repairs. The respondent’s bridge inspection reports clearly demonstrate that
there was eighteen feet of guardrail missing on the eastern side of the bridge.
From the date of the first available bridge inspection report, dated May 16,
1989, there were notations that the guardrail and handrail are in critical
condition and that railing should be replaced. The evidence in this claim
clearly established that as of December 11, 1989, the Grapevine Bridge was not
in a safe condition and that it should have been corrected. This was some three
and a half years prior to the accident which is the subject matter of this
claim. Subsequent reports reiterate that an eighteen foot section of guardrail
was missing from the upstream side at abutment number one.
Furthermore, the Mingo County Maintenance Office also had at least constructive
notice, if not actual notice of the missing guardrail on the Grapevine Bridge
and failed to take any action whatsoever to remedy the situation. Certainly
respondent’s employees frequently traveled State Route 49 during routine road
inspections which necessitated their driving across the Grapevine Bridge.
The Court is of the opinion given the testimony that the respondent had actual
notice of the damaged and missing guardrail on the Grapevine Bridge, and
respondent had more than a reasonable time to repair to make the appropriate
repairs. Respondent knew or should have known that the failure to replace the
guardrail presented a hazard to the traveling public. As respondenf s employees
were in agreement that the guardrail should have been replaced; that this
condition posed a hazard to the traveling public; and, that the purpose of the
guardrail is to deflect traffic on an errant path on the roadway, the Court
concludes that the failure to act on the part of the respondent is inexcusable
and an act of gross negligence.
However, the crux of this case is the proximate cause of the accident and
subsequent injuries to the claimant. The law in West Virginia requires that a
fmding of negligence, in and of itself, is insufficient to fmd liability on a
party. To constitute actionable negligence there must be a finding that the
negligence was the proximate cause of the injuries to the complaining party. Roush
vs. Johnson, 139 W. Va. 607; 80 S.E.2d 857 (1954); Matthews vs. Cumberland
& Allegheny Gas Co. 138 W. Va. 639, 77 S.E.2d
180. (1953). This issue rests upon
whether or not the negligence of the respondent in failing to replace this
missing guardrail was the proximate cause of the
W.Va.J REPORTS
STATE COURT OF CLAIMS 327
accident. If the Court finds that the injuries to the claimant would not have
occurred but for the negligence of the respondent, then a recovery on behalf of
the claimant would be in order. The testimony of claimant’s expert, Dr. Kenneth
Crowley, would have the Court enter into the world of speculation. According to
Dr. Crowley, if the guardrail had been in place, if the vehicle struck the
guardrail at a particular angle, and if theguardrailwere ofsuch and sucha
strength, thenthe vehicle in which claimant was a passenger would not have gone
airborne, struck the hillside on the north side of the Grapevine Bridge, and
would not have dropped into the bottom of a ravine causing injuries to the
claimant. What would have happened to the vehicle if it had struck a guardrail,
of course, cannot be answered. This Court, in its determinations of many claims
previously heard and submitted for decision, has declined to speculate in order
to find liability upon a respondent State agency. Mooney vs. Department of
Highways, 16 Ct. Cl. 84 (1986); Phares vs. Division of Highways, 21 Ct. Cl. 92
(1996).
The Court is constrained by the time-honored principle of law that the
preponderance of the evidence must establish that the negligence of the
respondent is the proximate cause of the injuries to the complaining party for
there to be a recovery. It is the opinion of the Court in the claim herein that
the preponderance of the evidence does not support a finding that the
negligence of the respondent was the proximate cause of the accident that
resulted in the serious injuries suffered by the claimant. The proximate cause
of the accident herein was the driver error committed when the driver failed to
maintain control of her vehicle. At that point, the existence or non-existence
of the guardrail, even if the missing 18-foot section would have covered the
area where the vehicle went off the paved portion of the road, becomes a moot
issue. Who can say what would have happened at that juncture of the on-going
action of the vehicle? What if the vehicle struck the guardrail head on and
flipped over? Would both occupants be alive today? Would they have suffered no
injuries? This Court declines to speculate as to what could or would have
happened. It cannot answer these questions to its satisfaction. Therefore, the
Court concludes that the proximate cause of the accident in this claim is
driver error, and not negligence on the part of the respondent.
The Court is most cognizant of the severity of the injuries to the claimant,
and the Court is most sympathetic with the plight of the claimant. Claimant
Jeremy Tait Hunt appears to the Court to be a young man who is determined to
accept his physical limitations and to live his life to the fullest. T he C
ourt has the utmost respect and admiration for this young man. However, the
Court cannot speculate to the degree required in this claim that the severe and
permanent injuries he suffered in this accident were proximately caused by the
negligence of the respondent. Thus, the Court is required by the applicable law
to hold that there may be no recovery on the part of the claimant in this
claim.
328 REPORTS
STATE COURT OF CLAIMS [W.Va.
In accordance with the fmding of facts and the conclusions of law as stated
herein above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED JUNE 29, 2001
NATIONAL ENGINEERING AND CONTRACTING
COMPANY
VS.
DIVISION OF HIGHWAYS
(CC-99- 180)
Stephen A. Weber and Michael F. McKenna, Attorneys at Law, for the claimant.
Jeff J. Miller, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the
claim were agreed to as follows:
1. Claimant National Engineering and Contracting Company (hereinafter referred
to as National) is an Ohio corporation with its principal place of the bid of
business in Strongsville, Ohio, and is a pre-qualified construction contractor
in the State of West Virginia.
2. The respondent is a S tate a gency delegated w ith the responsibility of
designing, planning, and administering public highway projects in the State of
West Virginia.
3. This claim consolidates two claims on highway construction contracts.
Both contracts were entered into in 1995 to perform certain repair work on 1-64
in
Cabell County. The first project is commonly referred to as the Mud River
Bridge
Project and is Project No. S306-64-25.21, 26.45, and 27.10, and the second
project,
commonly referred to as the Mud River/Indian Meadows Bridge Project, is Project
No. 27.110.
4. As part of the terms of the contract for Project No. S306-64-25.21, 26.45,
and 27.10, National was required to furnish and erect about 13,300 lineal
feet of temporary concrete median barrier conforming to the bid proposal for
the purposes of maintaining two-way traffic through the project. The temporary
barriers called for in the contract utilized a “pin and loop” positive
connection system.
5. National made arrangements for concrete median barriers to be supplied by a
subcontractor, Swank Sign Erection, Inc., which had furnished median barriers
W.Va.j REPORTS
STATE COURT OF CLAIMS 329
for other highway projects. Specifically, the median barrier company had
furnished barriers on a project on Route 22 near Weirton, as well as for a
project on 1-79, commonly referred to as the FBI Interchange project. The same
type barrier was also used on other projects performed by other construction
contractors for respondent.
6. On those other projects, the median barrier company had furnished what is
commonly referred to in the industry as a Pennsylvania or PennDOT barrier,
which is so named as it is a commonly used median barrier that is made to
special Pennsylvania Department of Transportation standards. The PennDOT
barrier has a “slot and plate” connection rather than a “pin and ioop”
connection, and has other design features that may be distinguished on the plan
detail sheets for each respective type of barrier. On the other projects, the
median barrier company sought and received permission from respondent to use
the PennDOT barrier.
7. Although the PennDOT barrier did not meet project proposal specifications
for this project as bid, the median barrier company sought approval from respondent
to use the PennDOT barrier on this project.
8. On February 9, 1996, respondent informed National that the PennDOT median
barrier could be used long as respondent was furnished with a certification
that the barrier complied with NCHRP 350 criteria. This was the first
time that respondent had ever made this alternative condition a part of the
approval process.
9. After calling the Pennsylvania Department of Transportation to check on the
standard of the PennDOT barrier, the subcontractor to National certified to
respondent that the PennDOT median barrier met the NCHRP 350 standard. However,
the median barrier did not meet that standard. The parties do not believe that
the median barrier company intentionally misrepresented this fact, but rather
did so out of mistake.
10. At that time, no barrier in the world had been tested or certified as
meeting the NCHRP 350 standard since it was a newly adopted standard. The
contract did not require a contractor to use median barrier that met the NCHRP
350 standard.
11. The PemiDOT barrier did meet the NCHRP 230 standard which was the NCHRP
standard then in place.
12. The median barrier company began to deliver the median barrier to the
project prior to having received the required approval of the use of the barrier
by respondent.
13. On April 22, 1 996, respondent informed National that it would not approve
the use of the PennDOT barrier because this particular barrier met neither the
original bid proposal specifications nor the NCHRP 350 standard. National was
given a third alternative of imbedding the PennDOT barrier two inches into a
slot in the pavement to provide lateral support; however, National determined
that this requirement would make the PennDOT barrier too costly to use on the
project.
330 REPORTS STATE
COURT OF CLAIMS [W.Va.
14. National ultimately replaced the PennDOT barriers with a WVDOH type
barrier, which also did not meet NCHRP 350
standards, but which did conform to
the original plan documents. The removal and replacement of the PennDOT barriers
cost $209,047.46 for which National now makes this claim.
15. National also contracted with respondent in 1995 to perform certain
repair work on project no. S306-64-20.19 and respondent rejected the use of the
PennDOT barrier as the temporary concrete barriers on this project as well
which
National alleges the cost for the removal and replacement of the barrier at
$49,156.06.
16. The parties stipulate to the admission of the project proposal plans and
contract documents, including all standard and supplemental specifications,
special provisions and detail sheets, including the WVDOH Standard Detail,
“Temporary Concrete Barrier”, Standard Sheet GR 10, Prepared 1-1-93; the
admission of photocopies of commonwealth of Pennsylvania DOT RC-57, “CONCRETE
MEDIAN BARRIER”, recommended 3-30-92, comprising three sheets; and the
deposition of Charles Shaver, a construction engineer for respondent at the
time of these projects, with attached exhibits.
The Court, having reviewed the stipulation, memoranda of law submitted by the
parties, the exhibits, and the facts and circumstances o ft his claim, finds
that claimant, National Engineering and Contracting Company, did not establish
by a preponderance of the evidence that the respondent breached any of its contractual
duties to National. The Court fmds that National made a unilateral mistake by
relying upon the mistaken misrepresentation of its subcontractor, Swank Sign
Erection, Inc., that the PennDOT barrier met the contractual requirements.
The respondent did not allow the use of the PennDOT barrier brought to the site
by National due to the fact that it did not meet the contractual requirements
for concrete barrier on these two projects. N ational had three alternatives
under the contract. First, it could have used the GR1O barrier (the “pin and
loop” barrier) which was available to it and which met all contractual
conditions for temporary barriers. Second, National had the alternative of
providing barriers which meet the NCHRP 350 standards. Third, National could
have chosen to comply with respondent’s instructions to embed the delivered
PennUOT barriers to meet respondent’s requirements. At the time that these
projects were let to bid, the NCHRP 350 standard was replacing the 230 standard
for temporary barriers. National made the decision to have the PennDOT barriers
delivered to the project sites p nor to r eceiving t he r equired a pproval
from r espondent. T hese t emporary barriers use the “slotted plate connection”
instead of the “pin and loop.” The slotted plate connection barriers were
required to meet the NCHRP 350 standards. National relied upon the
representation of its subcontractor that the PennDOT barriers met the NCHRP 350
standards. Based upon this representation, National proceeded to have
W.Va.] REPORTS
STATE COURT OF CLAIMS 331
the PennDOT barriers delivered to the project sites only to be informed by
respondent that these barriers did not meet the NCHRP 350 standards.
It is the opinion of the Court that National placed itself in an unfortunate
position by having the delivery of the PennDOT barriers made to the project
sites only to find out that the barriers would not be used in light of its
decision to reject respondent’s requirement that these be embedded. Any
fmancial loss on the part of National was due to its reliance on its own
subcontractor’s representations that the barriers were in compliance with the
NCHRP 350 standard. Further, the Court is of the opinion that respondent acted
in a fair and reasonable manner in its insistence upon a safe and secure
barrier being used as the median barrier for traffic upon 1-64.
Accordingly, the Court has determined that National has failed to substantiate
its claim against the respondent, and further, the Court is of the opinion to
and does hereby deny this claim.
Claim disallowed.
OPINION ISSUED JUNE 29, 2001
MARY KATHERINE (LEE) ONEAL
VS.
DIVISION OF HIGHWAYS
(CC-99-52)
Greg K. Smith, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into
by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On September 2, 1997, claimant Mary Katherine (Lee) O’Neal was walking on
U.S. Route 52 near Williamson in Mingo County. She planned to enter the
downtown area of Williamson by and through the Pike Street underpass.
2. While claimant was walking on U.S. Route 52, she stepped into a large
hole and suffered injuries to her right foot.
3. Respondent is responsible for the maintenance of the portion of U.S. Route
52 in or near Williamson, Mingo County, where claimant was injured.
4. Respondent concedes that it had at least constructive notice that the
portion of U.S. Route 52 where claimant was injured was in a state of disrepair
at the
332 REPORTS STATE
COURT OF CLAIMS [W.Va.
time of claimant’s injury and that there is a moral obligation on its part to
provide some compensation to the claimant for her injuries.
5. As a result of this incident, claimant brought this action to recover
damages in the amount of $20,000.00. However, claimant has agreed to settle and
relinquish this claim against respondent for the amount of $3,000.00.
Respondent agrees that the amount of damages as put forth by claimant is fair
and reasonable.
The Court has reviewed the facts of this claim as stated in the stipulation,
and adopts the statements of facts as its own. The Court fmds that respondent
was negligent in its maintenance of a portion of U.S. Route 52 in or near
Williamson on the date of claimant’s incident; that the negligence of
respondent was the proximate
cause of the injuries suffered by claimant; and that the amount of the damages
agreed to by the parties is fair and reasonable.
Accordingly, the Court is of the opinion to and does make an award to the
claimant in the amount of $3,000.00.
Award of $3,000.00.
OPINION ISSUED JUNE 29, 2001
DIVISION OF ENVIRONMENTAL PROTECTION
VS.
DIVISION OF CORRECTIONS
(CC-0l-l78)
Claimant appeared pro Se.
Jendonnae L. Houdyschell, Assistant Attorney General, for respondent.
PER CURIAM:
This c laim w as submitted for de cision b ased upon the allegations in the
Notice of Claim and respondent’s Answer.
Claimant seeks $189.00 for providing a Sludge Land Application Fee as required
by law for Huttonsville Correctional Center, a facility of respondent in
Huttonsville. The documentation for these services was not processed for
payment within the appropriate fiscal year; therefore, claimant has not been
paid. In its Answer, respondent admits the validity of the claim as well as the
amount, and states that there were sufficient funds expired in the appropriate
fiscal year from which the invoice could have been paid.
Accordingly, the Court makes an award to claimant in the amount of
$189.00.
Award of $189.00.
W.Va.j REPORTS STATE COURT OF CLAIMS 333
334 REPORTS STATE
COURT OF CLAIMS [W.Va.
REFERENCES
• BERMS —
See also Comparative Negligence and
Negligence
• BRIDGES
• CONTRACTS
• COMPARATIVE NEGLIGENCE -
See also Berms; Falling Rocks and Rocks;
Negligence & Streets and Highways
• DAMAGES
• DRAINS and SEWERS
• FALLING ROCKS AND ROCKS -
See also Comparative Negligence and
Negligence
• LEASES
• MOTOR VEHICLES
• NEGLIGENCE —
See also Berms; Falling Rocks and Rocks
& Streets and Highways
• NOTICE
• PEDESTRIANS
• PRISONS AND PRISONERS
• PUBLIC EMPLOYEES
• STATE AGENCIES
• STREETS & HIGHWAYS —
See also Comparative Negligence and
Negligence
• TREES and TIMBER
• VENDOR
• VENDOR —
Denied because of insufficient funds
• W. VA. UNIVERSITY
W.Va.1 REPORTS
STATE COURT OF CLAIMS 335
The following is a compilation of
headnotes representing decisions from July 1, 1999 to June 30, 2001. Because of
time and space constraints, the Court has decided to exclude certain decisions,
most of which involve vendors, typical road hazard claims and expense
reimbursements.
BERMS —
See also Comparative Ne1ience and NeIience
BAKER VS. DIV. HIGHWAYS (CC-99-346)
Claimant and respondent stipulated that claimant’s vehicle sustained damage
when it struck a washed out portion of the road and respondent had failed to
provide proper warning devices for the traveling public. The made an award to
the
claimant p.212
BOTT VS. DIV. OF HIGHWAYS (CC-99-471)
The parties stipulated that claimant’s vehicle sustained damage when it went
over a cut-off sign post which respondent had left on the berm; that respondent
was responsible for the maintenance of the area; and that respondent was
negligent. The
Court made an award p. 243
BROOKS VS. DIV. OF HIGHWAYS (CC-00-143)
A claim for damages to a vehicle was denied where respondent was performing
work and maintained signs for the traveling public but claimant drove into a
store parking lot where the berm had been cut away during respondent’s project.
Claimant failed to establish any negligence on the part of respondent.
p.271
DONATO VS. DIV. OF HIGHWAYS (CC-98-335)
The Court held that the berm of Route 35, McGraws
Run Road, was negligently maintained and was the proximate cause of claimant’s
damages, where claimant’s vehicle was forced off the road due to an oncoming
vehicle. The berm of a road must be maintained in a reasonably safe condition
for use when a motorist is forced onto the berm in an emergency or for an
otherwise necessary use. Award of $3,947.22. Sweda vs. Dept. of Highways, 13
Ct. Cl. 249 p. 69
FORESTER VS. DIV. OF HIGHWAYS (CC-00-287)
Claimants’ son was operating their vehicle on a narrow, two-lane road when he
drove to the right for on-coming traffic and the vehicle went into a deep
depression in the berm. The Court held that respondent was negligent in its
maintenance of the berm and made an award for the damages to the
vehicle p. 246
336 REPORTS
STATE COURT OF CLAIMS [W.Va.
FREYMAN VS. DIV. OF HIGHWAYS (CC-99-249)
Where the evidence established that there was on-going construction on a bridge
which resulted in the deterioration of the concrete surface and this condition
caused damage to claimant’s vehicle, the Court will find respondent negligent
and
make an award to the claimant p. 179
GANNON VS. DIV. OF HIGHWAYS (CC-98-3 12)
Where claimants’ vehicle struck a piece of concrete curb broken off and laying
along the edge of the road and berm, the Court held that claimants’ son should
have had enough room to maneuver the vehicle around the piece of concrete.
Claim
disallowed p. 71
GARRETT VS. DIV. OF HIGHWAYS (CC-99-226)
The parties stipulated that there were I-beams located on the berm of the road
which were hidden in vegetation such that claimant’s vehicle sustained damage
when his vehicle was driven onto the berm. Respondent agreed that there was
negligent maintenance of the area on its part and the Court made an award. p.
250
GILLENWATER VS. DIV. OF HIGHWAYS (CC-97-207)
Where respondent had just cleaned the ditches along the roadway following
flooding and pushed mud onto the berm of the road, the Court held that it did
not take reasonable precautions to make sure the berm was stable enough to
support a vehicle that was forced onto the berm of the road. As a result,
claimant’s vehicle fell over an embankment after the berm gave way. Award of
$4,450.00 p. 74
GODSEY-MAYLE VS. DIV. OF HIGHWAYS (CC-99-281)
Where claimant’s vehicle was forced to the edge of the road and the pavement
broke away due to deterioration, the Court held that the berm of the road was
not maintained properly and created a hazard to the traveling public. Award of
$2,163.87 p. 134
MCCLEAN VS. DIV. OF HIGHWAYS (CC-99-475)
The Court denied a claim for damages to a vehicle which struck a hole at the
edge of the road in the berm area where it found that claimant was not in an
emergency situation and did not need to be driving in a area outside the travel
portion
of the road p.290
MOZINGO VS. DIV. OF HIGHWAYS (CC-99-381)
The parties stipulated this claim for damages to claimant’s vehicle which went
over a broken sign post left on the berm of the road. This constituted a hazard
W.Va.} REPORTS
STATE COURT OF CLAIMS 337
for which respondent is responsible. The Court made an award based upon the
stipulation p. 260
SHAFFER VS. DIV. OF HIGHWAYS (CC-98-149)
Where claimant’s vehicle struck a large hole on the berm of the road which had
eroded part of the road beyond the white line and into the paved portion of the
highway, the Court held that respondent was on constructive notice and did not
take reasonable steps to ensure the safety of the traveling public. Award of
$500.00.
p.31
SUTPHIN VS. DIV. OF HIGHWAYS (CC-00-298)
Where the berm was in a state of disrepair, but the claimant was not in an
emergency situation when she drove onto the berm, the Court denied the claim.
p.299
TOTO VS. DIV. OF HIGHWAYS (CC-98-3l5)
Claimant brought this action to recover damages caused to his vehicle when his
wife was forced to maneuver it onto the berm of Route 2317, Ohio County
due to three oncoming traffic. The Court held that due to the narrow size of
the road and berm deterioration claimant’s wife did not travel the berm by her
own choice. The Court held that the berm was negligently maintained and said
negligence was the proximate cause of claimant’s damages. Award of $105.82 p.
102
BRIDGES
BOOKER VS. DIV. OF HIGHWAYS (CC-98-263)
This claim came before the Court upon stipulation entered into by the parties
where the facts and circumstances were set forth by the parties. The claimant
was walking across the Coal River Bridge, Kanawha County when the concrete on
the sidewalk gave way causing him serious injuries. The Court having reviewed
the stipulation adopts it as its own and fmds respondent negligent in its
maintenance of the bridge and agrees that the amount of the damages is fair and
reasonable. Award
of $4,000.00 p. 49
BURGE VS. DIV. OF HIGHWAYS (CC-98-308)
Where respondent knew of the poor substructure of the bridge and made
numerous repairs to holes with the use of cold mix asphalt, the Court held
respondent
was on notice of the hazardous condition of the bridge; but failed to warn
motorists
of the defective condition of the bridge. Award of $1,460.30. Adkins v.
Sims, 130
W.Va. 645; 46 S.E.2d 81(1947); Chapman vs. Dept. of Highways, 16 Ct. Cl.
103
(1986). p. 127
338 REPORTS
STATE COURT OF CLAIMS [W.Va.
COLLINS VS. DIV. OF HIGHWAYS (CC-98-290)
Claimant received severe injuries in an accident where she drove her vehicle
into a concrete barrier placed by respondent as part of a detour around the Red
Jacket Bridge which was under construction. The Court determined that the
barriers were not properly secured and that the signage for the area was not
adequate and constituted negligence. It was foreseeable that a driver
approaching the scene and observing the barriers could inadvertently drive
through the barriers and have a collision. The Court made a reduced award p.
309
DEAN VS DIV. OF HIGHWAYS (CC-00-21 1)
While claimant was walking across a bridge, he stepped into a hole in the
walkway causing an injury. The parties stipulated the facts and that respondent
was negligent in its maintenance of the bridge. The Court made an award in the
amount
of the settlement p. 245
HUNT VS. DIV. OF HIGHWAYS (CC-96-492)
Claimant was the passenger in a vehicle which went off the road just prior to
the Grapevine Bridge. The driver lost control of the vehicle on wet pavement at
which time the vehicle went air borne across a ravine, struck a rock wall,
flipped in the air, and fell beneath the bridge on its top. The evidence
established that the bridge itself was in a state of disrepair but its
condition was not the proximate cause of the accident. The Court denied the
claim p. 317
HUNT VS. DIV. OF HIGHWAYS (CC-96-492)
Where claimant received severe injuries in an accident alleged to be caused by
respondent’s failure to maintain the guardrail at the approach to the Grapevine
Bridge, the Court held that the missing guardrail was not the proximate cause
of the accident that had occurred and the claim was denied p. 317
HUNT VS. DIV. OF HIGHWAYS (CC-96-492)
Even though the Court determined that respondent had actual notice of the disrepair
of the Grapevine Bridge where claimant was involved in an accident and the
respondent was negligent in its maintenance of the bridge, the Court denied the
claim as the crux of the claim was the determination of the proximate cause of
the accident which the Court determined was the negligence of the driver of the
vehicle and not
the respondent p. 317
HUNT VS. DIV. OF HIGHWAYS (CC-96-492)
The sudden emergency doctrine is a viable doctrine under comparative negligence
so the Court found that a passenger claimant who may have grabbed the steering
wheel when the driver left go of the steering wheel after losing control of the
W.Va.] REPORTS
STATE COURT OF CLAIMS 339
vehicle was the act of a reasonable, prudent person observing such an action of
the
driver. p.317
HUNT VS. DIV. OF HIGHWAYS (CC-96-492)
The Court adheres to the time-honored principle of law that the preponderance
of the evidence must establish that the negligence of the respondent was the
proximate cause of the injuries to the complaining party for there to be a
recovery. The claim was denied as the Court determined that respondent’s
negligence was not the proximate cause of the accident which occurred causing
the
injuries to the claimant p. 317
HUNT VS. DIV. OF HIGHWAYS (CC-96-492)
In a claim where experts provided testimony to reconstruct the accident, the
Court d etermined that c laimant’s expert would have the C ourt speculate and
this Court declines to speculate in order to find liability upon a respondent
State agency.
p.317
MAHONE VS. DIV. OF HIGHWAYS (CC-98-63)
The construction of a bridge with wing walls and bridge approaches increased
the size of the prior structure and created a damming effect at the s ite which
is sufficient to constitute negligence on the p art oft he respondent for the
resulting flooding which caused damages to claimant’s personal property. The
Court made an award to claimant based upon its determination of a fair and
reasonable
amount. p.216
MATUSKY VS. DIV. OF HIGHWAYS (CC-99-l70)
This claim came before the Court upon a stipulation. The Court having reviewed
it adopts it as its own and holds that respondent was negligent in not securing
a metal p late c overing a hole on a bridge, and s aid n egligence was the
proximate cause of claimant’s damages. Award of $500.00 p. 90
NEWSOME VS. DIV. OF HIGHWAYS (CC-99-298)
The Court made an award for damages to claimant’s boat, boat-trailer, and truck
when a wooden bridge deck with a loose board caused the damages. The Court held
that respondent had actual notice of the condition of the bridge d eck which
constituted a hazard to the traveling public; therefore, negligence on the part
of
respondent was established p. 222
OXLEY VS. DIV. OF HIGHWAYS (CC-99-330)
Claimant brought action to recover costs to replace a cattle rack which was
destroyed when his vehicle struck a low raifroad trestle. The Court held that
340 REPORTS
STATE COURT OF CLAIMS [W.Va.
respondent was negligent in its maintenance of the road when it paved it thus
raising the height of the road as well as lowering the clearance of the
trestle. Respondent should have warned motorists of the lower clearance.
However, the Court only awarded claimant the cost of the cattle rack and not
costs of the labor which claimant’s son performed. The Court presumes that his
labor was provided gratuitously. Award of $269.74. See Gibson vs. McGraw, 175 W.Va. 256; 332
S.E.2d 269 (1985) p.145
WILSON VS. DIV. OF HIGHWAYS (CC-97-213)
Claimant and respondent stipulated the facts and amount of this claim for
personal injuries suffered by claimant when pieces of concrete fell from the
underside of an interstate overpass and struck her vehicle. The Court adopted
the finding of facts as its own and made an award to the claimant p. 195
CONTRACTS
COMPUTER ASSOCIATES INTERNATIONAL, INC. VS. DEPARTMENT OF TAX AND REVENUE
(CC-00-033)
Claimant seeks $254,000.00 for extra work it successfully performed under a
contract with the respondent for Y2K computer compliance. The parties agree
that this amount is fair and reasonable. The Court is of the opinion that
respondent would be unjustly enriched if claimant was not compensated for the
critical Y2K preparations made to respondent’s computer systems. Award of
$254,000.00.
p.129
NATIONAL ENGINEERING AND CONTRACTING COMPANY VS. DIV. OF HIGHWAYS (CC-99- 180)
The parties stipulated the facts in this claim involving the use of concrete
barriers during two construction projects. Claimant alleged that respondent
refused to accept for use a different median barrier than that provided in the
contract, but the Court determined that the claimant placed itself in an
unfortunate position by having barriers delivered to the site that did not meet
respondent’s requirements and it should bear any costs associated with its own
actions. The Court denied the claim.
p.328
NITRO ELECTRIC COMPANY VS. REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY
VS. SILLING ASSOCIATES, INC., CARLTON, INC., AND INSURANCE COMPANY OF NORTH
AMERICA (CC-95-l09
Claimant contractor alleged it was damaged by actions of other contractors
during the construction of the Mount Olive Correctional Complex and by failure
of
W.Va.] REPORTS
STATE COURT OF CLAIMS 341
respondent to provide information in a timely manner to claimant about the
construction of the project. The parties entered into settlement negotiations
and settled the action. The Court, having reviewed the Consent Order and Award,
made an award to claimant for that part of the settlement agreed to by
respondent p. 165
RIVER VALLEY CHILD DEVELOPMENT SERVICES VS. DEPARTMENT OF HEALTH AND HUMAN
RESOURCES (CC-98-415)
Claimant brought action to recover $7,788.00 for an accepted bid that
respondent then negligently revoked and rebid. However, the parties agreed to
settle and relinquish the claim for $5,000.00. The Court aware that the
respondent does not have a fiscal method for paying claims of this nature
agrees that the settlement is fair and reasonable and makes an award of
$5,000.00. Award of $5,000.00. .. p. 100
COMPARATIVE NEGLIGENCE — See also
Berms Falling Rocks and Rocks; Nelience & Streets and Highways
COLLINS VS. DIV. OF HIGHWAYS (CC-98-290)
Claimant received severe injuries in an accident where she drove her vehicle
into a concrete barrier placed by respondent as part of a detour around the Red
Jacket Bridge which was under construction. The Court determined that the
barriers were not properly secured and that the signage for the area was not adequate
and constituted negligence. It was foreseeable that a driver approaching the
scene and observing the barriers could inadvertently drive through the barriers
and have a collision. Tne Court made a reduced award as it determined that
claimant was familiar with the c onstruction in the area and she should h ave b
een driving at a
slower rate of speed p. 309
DUNCAN VS. DIV. OF HIGHWAYS (CC-97-374)
Where claimants vehicle was damaged as a result of striking a hole on the edge
of Manilla Road in Putnam County and rolling over a large hill, the Court held
that respondent failed to maintain the roadway in proper condition, but that
the negligence of claimant was equal to or greater than any negligence
attributable to respondent and disallowed the claim. Claim disallowed p. 3
FAULKNER VS. DIV. OF HIGHWAYS (CC-99-l 11)
Even though the Court found respondent had constructive notice of a hole in the
pavement, the Court denied the claim as claimant was operating his vehicle too
fast for the conditions then and there existing. His negligence was equal to or
greater
than that of the respondent p. 275
342 REPORTS
STATE COURT OF CLAIMS [W.Va.
HALL VS. DIV. OF HIGHWAYS (CC-97-410)
Claimant’s wife drove his vehicle into a ditch on Route 1 which arose as a
result of respondent’s excavating work to install drains due to flooding. The
Court held that respondent knew or should have known that the road would settle
causing a ditch to form and did not take proper precautionary measures.
However, the Court found claimant’s wife was familiar with the road and that
pipe had been installed and made an 80% award of $200.00. Award of $200.00 p.
132
HAMILTON VS. DIV. OF HIGHWAYS (CC-00-184)
A claim for damages to a vehicle was denied where the Court found no negligence
in the maintenance of the road on the part of the respondent b ut that claimant
failed to exercise the care required under the circumstances then and there
existing p. 277
KENNEDY AND STACY VS. DIV. OF HIGHWAYS (CC-96-373 & CC-96-381
Comparative negligence will be assessed against claimants who bear some of the
responsibility for damages to their own property from water drainage flowing
from the highway onto the properties. Claimants failed to maintain adequate
drainage structures to protect their properties and thus were also responsible
for the
damages p. 182
KING VS. DIV. HIGHWAYS (CC-99-59)
The evidence established that respondent had actual notice of a defective
condition in the road surface, but claimant also was aware of the state of
disrepair so the Court reduced the award based upon the comparative negligence
of the claimant.
p.186
MURPHY VS. DIV. OF HIGHWAYS (CC-99-174)
The Court held that respondent was negligent in its maintenance of the road
just taken into its system when it failed to inspect and make permanent repairs
to the road; however, claimant’s negligence was equal to or greater than that
of respondent since she was aware of the condition of the road and failed to
operate her vehicle for the conditions then and there existing. The Court
denied the claim p. 219
PUTNAM TRUCKLOAD DIRECT VS. DIV. OF HIGHWAYS (CC-98-365)
Claimant’s employee drove a tractor trailer through a tunnel on Secondary
Route 60/4, Greenbrier County in Route for emergency repairs of an airline
leak. The driver was unfamiliar with the road and the tunnel, and as he was
going through the tunnel, the truck sustained damages as a result of scraping
the tunnel. The Court held that respondent was negligent and created an
unreasonable risk to vehicles due to the combination of the low tunnel height
and the creek running through it, which
W.Va.J REPORTS
STATE COURT OF CLAIMS 343
forces driver’s to maneuver around the water and increases the risk of striking
the tunnel’s arch. However, the Court made a reduced award fmding that claimant
was 20% at fault for failing to exercise due caution, the Court made an 80%
award of
$4,142.72. Award of $4,142.72 p. 97
SUTPHIN VS. DIV. OF HIGHWAYS (CC-00-298)
Even though respondent acknowledged that the road and berm were in state of
disrepair, the Court determined that claimant was negligent in the operation of
her vehicle. In a comparative negligence jurisdiction such as West Virginia,
the negligence of a claimant can reduce or b ar r ecovery in a claim. The claim
was
denied p. 299
DAMAGES
COLLINS VS. DIV. OF HIGHWAYS (CC-98-290)
Claimant received severe injuries in an accident where she drove her vehicle
into a concrete barrier placed by respondent as part of a detour around the Red
Jacket Bridge which was under construction. The Court determined that her
injuries have caused her a great deal of pain and suffering, loss of enjoyment
of life, and depression. She is unable to engage in the same activities such as
working as she did prior to the accident; therefore, the Court made an award
based upon the effects of
the injuries upon her life p. 309
COLLINS VS. DIV. OF HIGHWAYS (CC-98-290)
Claimant received severe injuries in an accident where she drove her vehicle
into a concrete barrier placed by respondent as part of a detour around the Red
Jacket Bridge which was under construction. The Court determined that her
injuries have caused her a great deal of pain and suffering, loss of enjoyment
of life, and depression. The Court also made an award to claimants husband for
his loss of consortium due to his wife’s accident and the effects of her
injuries upon his life.
p.309
LOCKHART VS. DIV. HIGHWAYS (CC-97-106)
If claimants fail to establish that respondent negligently maintained its
drainage structures which are alleged by claimants to have caused excessive
water to flow onto their property, the Court will deny the claim p. 157
LOCKHART VS. DIV. HIGHWAYS (CC-97.106)
Where respondent, once on notice of situation, took immediate and reasonable
action to prevent further damage to claimants alleging damage from water
344 REPORTS STATE
COURT OF CLAIMS [W.Va.
flowing from the road onto their property, the Court will not find respondent
negligent in its maintenance of its drainage structures p. 157
OXLEY VS. DIV. OF HIGHWAYS (CC-99-330)
Claimant brought action to recover costs to replace a cattle rack which was
destroyed when his vehicle struck a low railroad trestle. The Court held that
respondent was negligent in its maintenance of the road when it paved it thus
raising the height of the road as well as lowering the clearance of the
trestle. Respondent should have warned motorists of the lower clearance.
However, the Court only awarded claimant the cost of the cattle rack and not
costs of the labor which claimant’s son performed. The Court presumes that his
labor was provided gratuitously. Award of $269.74. See Gibson vs. McGraw, 175
W.Va. 256; 332
S.E.2d 269 (1985) p. 145
RATCLIFF, THE GUARDIAN AND NEXT FRIEND OF BENJAMIN NICHOLS RATCLIFF, AN INFANT
VS. DIV. OF HIGHWAYS (CC-96-472)
The Court denied a claim for property damage caused by a hillside slippage
where the claimants presented no evidence of the costs of repairs made to their
property. The Court will not speculate as to claimants’ property damages. The
Court did make an award of $4,000.00 to Lawrence Ratcliff as the legal guardian
of Benjamin Ratcliff for personal injuries the minor suffered as a result of a
rock fall. The Court also awarded $2,000.00 to Lawrence Ratclif as the legal
guardian of the child for future medical expenses. Award of $6,000.00 p. 148
SEABOLT VS. DIV. OF HIGHWAYS (CC-97-150)
Where evidence establishes that respondent’s employees had actual notice of a h
azardous c ondition on a h ighway, the fact that a c ontractor for respondent
created the hazardous condition will not relieve respondent of its obligation
and duty to assure that the construction site was maintained in a proper
manner. .
. . p. 152
SEABOLT VS. DIV. OF HIGHWAYS (CC-97-150)
The provision of a “save harmless” clause in a construction contract does not
relieve respondent of its duty to protect the traveling public where its
employees are responsible for patrolling the road during the construction
project. An award was made to a claimant traveling in a construction area where
a hazardous condition at
the site existed p. 152
SELMAN VS. DIV. OF HIGHWAYS (CC-98-191)
Where the size and condition of holes in a highway are such that respondent had
constructive notice of the condition, there is sufficient evidence upon which
to
base an award p. 154
W.Va] REPORTS
STATE COURT OF CLAIMS 345
SELMAN VS. DIV. OF HIGHWAYS (CC-98-191)
If a driver of a vehicle is aware of a poorly maintained section of highway,
the Court will fmd that the driver was guilty of comparative negligence and
reduce
the award accordingly p. 154
SHIELDS VS. DIV. OF HIGHWAYS (CC-98-O1)
The Court will look to the size and condition of the hole in a roadway to
determine if r espondent ha d constructive n otice o ft he c ondition. I f c
onstructive notice is established, the Court will find respondent negligent in
the maintenance of the road and make an award to the claimant p. 156
DRAINS and SEWERS
HART VS. DIV. OF HIGHWAYS (CC-99-56)
Claimants’ property sustained damages as the result of respondent’s failure
to provide adequate drainage maintenance for the drains along the highway in
front of claimants’ property. The Court made an award for the damages as
respondent was
negligent p. 252
KENNEDY AND STACY VS. DIV. OF HIGHWAYS (CC-96-373 & CC-96-381)
Where the evidence establishes that respondent failed to maintain the drainage
system adjacent to its highway, the Court will make an award to the property
owners who suffer damages from excess water flowing from the highway
onto their properties p. 182
KENNEDY AND STACY VS. DIV. OF HIGHWAYS (CC-96-373 & CC-96-381)
Comparative negligence will be assessed against claimants who bear some of the
responsibility for damages to their own property from water drainage flowing
from the highway onto the properties. Claimants failed to maintain adequate
drainage structures to protect their properties and thus were also responsible
for the
damages p. 182
LAWRENCE, ET AL. VS. DIV. OF HIGHWAYS (CC-98-70)
A claim for propery damage alleged to be caused by excessive water
flowing from the road adjacent to the property was denied by the Court as the
evidence failed to establish that respondent maintained its drainage structures
in a
negligent manner p. 280
MARTIN VS. DIV. OF HIGHWAYS (CC-97-236)
Where the evidence failed to establish that respondent maintained its drainage
system in a negligent manner, but rather that respondent took appropriate
346 REPORTS STATE
COURT OF CLAIMS [W.Va.
action to repair its road after a landslide which prevented further damage to
claimants’ property, the Court denied the claim p. 283
MARTIN VS. DIV. OF HIGHWAYS (CC-97-236)
If a State employee makes a statement about property to a prospective property
owner, that statement would normally be outside the scope of the employee’s e
mployment. T he c laimant failed to exercise reasonable c are by not having the
property independently examined after receiving notice prior to the sale that
the terrain of the property being purchased may be subject to a slide. . p. 283
MOUNT VS. DIV. OF HIGHWAYS (CC-96-578)
Claimant brought this action against
respondent for damage to her barn as a result of a landslide which occurred
adjacent to Route 7 in Cabell County. Respondent allowed water to pond in the
ditch which was situated above claimant’s property. This set in motion the slip
which proximately caused the foundation blocks and claimant’s barn to move. The
Court held that respondent breached its duty to provide an adequate drainage
system and failed to protect claimant’ ‘s property from foreseeable damage.
Award of $7,500.00 Haught vs. Dept. of
Highways, 13 Ct. Cl. 237 (1980). Roger’s vs. Div. of Highways, 21 Ct. Cl. 97(1996) p. 135
SAVAGE VS. DIV. OF HIGHWAYS (CC-96-447)
An award was made for property damage occasioned by the negligent maintenance
of a drain adjacent to respondent’s road that was clogged and resulted in
excessive water flowing onto the property. The Court has held previously that
respondent has a duty to provide adequate drainage of surface water and devices
must be maintained in a reasonable state of repair P. 261
SCHRADER VS. DIV. OF HIGHWAYS (CC-97-58)
C1aimants alleged that the landslide which was destroying their home was caused
by respondent’s failure to maintain the ditchline adjacent to the highway
abutting claimants’ property. The Court held that respondent’s geotechnical
engineer who determined that a retrogressive slide was occurring from the West
Fork River which was below claimants’ property and this slide was pulling
claimants’ property toward the river causing the damage to their residence was
correct in his analysis of this particular situation. The Court denied the
claim p. 200
SUTTLE VS. DIV. OF HIGHWAYS (CC-99-106)
Where claimant fails to establish negligence on the part of the respondent for
drainage problems on his property alleged to have been caused by lack of
maintenance, the Court will deny the claim. The Court noted that respondent
took
W.Va.] REPORTS
STATE COURT OF CLAIMS 347
remedial measures upon receiving notice of the problem with the culvert which had
been covered at the inlet end with rocks p. 300
FALLING ROCKS AND ROCKS — See also Comparative Nelipence and Nelience
BALL VS. DIV. HIGHWAYS (CC-99-320)
Claimant and respondent stipulated that respondent was responsible for damage
to claimant’s vehicle when a rock fell from the hillside striking the vehicle
and respondent had failed to erect the proper warning signs for the traveling
public.
p.213
BEAN VS. DIV. OF HIGHWAYS (CC-00-151)
The parties stipulated that claimant’s vehicle sustained damage when it struck
rocks on the road which had been washed out from the adjacent culvert.
Respondent was aware of the condition and failed to take corrective action. The
Court made an award to claimant p. 242
BRADSHAW VS. DIV. OF HIGHWAYS (CC-99-63)
Claimant and her decedent husband were in an a ccident wherein a large boulder
came from a mountainside on 1-77 and rolled onto their vehicle. The Court held
that respondent was not liable in this claim because claimant failed to
establish that respondent was negligent in providing for the safety of the
traveling public on I-
77. It is a practical impossibility for respondent to perform intensive
investigations of all of the rock formations abutting the highways throughout
this State. Thus, the
Court denied the claim p. 170
BRADSHAW VS. DIV. OF HIGHWAYS (CC-99-63)
Where testimony from respondent’s expert geotechnical engineer was that the
rock formation consisted of a massive layer of sandstone with soft shale below
the rock, there are problems with all rock of this nature because there are
joints and fractures in the rock. The fractures result in weathering of the
support for the rock and the sandstone block may then fall off as occurred in
the instant claim when a boulder fell from the hillside of 1-77 causing
injuries to the claimant and death of her husband. However, the Court denied
the claim as an unexplained falling of a rock onto a roadway is insufficient to
justify an award p. 170
COPEN VS. DIV. OF HIGHWAYS (CC-00-209)
A claim for damage to a vehicle which struck a rock in the road was denied
where the evidence established that “Falling Rock” signs were posted by
respondent
348 REPORTS STATE
COURT OF CLAIMS {W.Va.
and there was no notice to respondent of the rock fall. There was no negligence
established on the part of the respondent p. 272
CROUSE VS. DIV. OF HIGHWAYS (CC-00-56)
Where respondent did not have notice of the rock in the road and the area was
not known for h avmg in cidents o ft his n ature, the C ourt denied a c laim
for damages to claimant’s vehicle which struck a rock in the road on Route 10.
p. 274
FOSTER VS. DIV. OF HIGHWAYS (CC-99-194)
Claimant’s vehicle was damaged when it struck a boulder in the section of W.Va.
2 in Marshall County know locally as “the Narrows”, a section of road subject
to numerous rock falls. The Court held that the evidence established that
respondent has actual knowledge of the hazardous rock falls but has not taken
remedial steps to prevent the occurrence of these incidents; therefore,
respondent is negligent in its maintenance of the area. The Court made an award
in the claim p. 248
HENRY VS. DIV. OF HIGHWAYS (CC-99-173)
Claimant’s vehicle struck rock debris on Route 2, Tyler County a known rock
fall area. To hold respondent liable claimant had to demonstrate that
respondent had actual or constructive notice of the rock fall hazard and failed
to take timely and reasonable measures to assure the safety of the traveling
public. The Court held that respondent h ad t aken timely and r easonable m
easures t o e nsure s afety b y c learly marking this area with “falling rock”
signs. Claim disallowed p. 78
HERSMAN VS. DIV. OF HIGHWAYS (CC-00-36)
Where the evidence fails to establish that respondent had not taken adequate
measures to protect the traveling public, the claim will be denied. Thus, a
claim for damages to a vehicle which struck a rock in the road was denied as
this was an area not known for having rocks fall onto the road p. 278
HUNDAGEN VS. DIV. OF HIGHWAYS (CC-98-303)
Claimant brought a ction for v ehicle damage c aused b y a rock fall while
traveling U.S. Route 250 also called the “narrows”. The Court held that given
the length of time which respondent has known of the rock falls, and the
frequency of claims brought due to rock falls in the same area that
respondent’s remedial measures of warning signs, over head lights and frequent
patrols are not enough to eradicate
this hazard. Award ofSl,550.00 p. 81
JONES VS. DIV. OF HIGHWAYS (CC-99-401)
Claimants’ vehicle struck a rock in the roadway and sustained damages for which
the Court made an award as it held that respondent was negligent for failing to
W.Va.J REPORTS
STATE COURT OF CLAIMS 349
remedy a situation where a rock was imbedded in the pavement at the edge of the
road creating a hazard for the traveling public even though this occurred as
the result of a paving project by an independent contractor p. 258
JUSTICE VS. DIV. OF HIGHWAYS (CC-99-9)
Without a positive showing that respondent had actual or constructive notice of
a dangerous condition, such as falling rocks and rock debris, posing a threat
of injury to property is insufficient to justify an award. Therefore, the claim
was denied where claimant’s vehicle struck a rock on the berm of the road and
respondent did
not have notice of this condition p. 180
PAYNE VS. DIV. OF HIGHWAYS (CC-98-314)
The Court disallowed a claim where claimant was driving on a road which
suddenly was involved in a mudslide from the adjacent hill and respondent had
no notice that such a slide was imminent. There was insufficient evidence of
any
negligence on the part of the respondent p. 189
ROY VS. DIV. HIGHWAYS (CC-00-29)
Where claimant’s vehicle sustained damage from a rock that came off the
adjacent hillside and struck the vehicle, the Court denied the claim as
respondent had “Falling Rock” signs posted and this incident was an unexplained
falling of rock or rock debris on a road which is insufficient to justify an
award p. 295
WELLMAN VS. DIV. OF HIGHWAYS (CC-98-29)
An award was made to each of the claimants for personal injuries and property
damage where the parties stipulated that respondent was aware that the area of
the accident was a known for having rocks fall from the hillside, but
respondent failed to mark the area with signs or to otherwise protect the
traveling public.
p.169
WILLIAMS VS. DIV. OF HIGHWAYS (CC-99-l 14)
Claimant brought this action for vehicle damage as a result of striking rocks
while traveling on U.S. 250 in Marshall County. The Court held, given the long
history and notoriety of this particular area of U.S. 250 as a well known
serious rock fall hazard, that respondent was and is on notice of a hazardous
condition which poses potential danger to the traveling public. Award of
$315.80 p. 109
INDEPENDENT CONTRACTORS
BAILEY VS. DIV. OF HIGHWAYS (CC-98-146)
350 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claimant brought action for damages caused to his vehicle when a road sign fell
from the 35th
Street Bridge in Kanawha County during
construction by a contractor. The Court held that in spite of a “save harmless”
clause between the contractor and respondent, that respondent was responsible
for supervising the safety of the contractor with regard to the traveling
public and that respondent had employees on location to do so. Award of $50.00
p. 19
BOYLES VS. DIV. OF HIGHWAYS (CC-98-170)
The Court held that a “save harmless” provision in a contract between
respondent and its contractor who was employed to do repair work on 1-64 does
not constitute a defense to a claim for negligence. Respondent cannot avail
itself of the protection of a “save harmless”clause between itself and its
contractor, against a third party, who is not privy to said contract.
Furthermore, the facts reveal that the respondent’s employees failed to inspect
the job site, and failed to protect the public.
Award of $296.56 p. 50
JONES VS. DIV. OF HIGHWAYS (CC-99-401)
Claimants’ vehicle struck a rock in the roadway and sustained damages for which
the Court made an award as it held that respondent was negligent for failing to
remedy a situation where a rock was imbedded in the pavement at the edge of the
road creating a hazard for the traveling public even though this occurred as
the result of a paving project by an independent contractor p. 258
LEASES
MACE VS. DEPT. OF OF ADM1N. AND DEPT. OF AGRICULTURE (CC-99- 172)
Claimants sustained a loss of rent when the Dept. of Agriculture vacated leased
premises without notice to the claimants. The Dept. of Administration had
failed to provide proper notice of the termination of the lease. The parties
stipulated the claim and the agreed to the damages for which the Court made an
award.
p.188
MOTOR VEHICLES
A&B SALES, INC. VS. DIVISION OF MOTOR VEHICLES (CC-99-104)
Claimant brought action to recover a financial loss it incurred when respondent
failed to follow proper procedure and did not indicate a lien holder on a
certificate of title for a motor vehicle. As a result of not listing the lien
holder on the certificate, claimant could not take possession of the vehicle.
The Court held that the
W.Va.j REPORTS
STATE COURT OF CLAIMS 351
failure to follow proper procedure for processing and issuing a certificate of
title
constitutes negligence. Award of $9,013.17 p. 47
BURKET VS. DIVISION OF MOTOR VEHICLES (CC-99-282)
This claim came before the Court upon a stipulation between the parties. The
Court held that respondent was negligent in its production of the certificate
of title for claimant’s motorcycle and its failure to follow reasonable
procedures in the issuance of the certificate of title for claimant’s
motorcycle causing claimant
damages. Award of $2,500.00 p. 53
DAFF VS. DIV. OF MOTOR VEHICLES (CC-00-20l)
Where respondent inadvertently revoked claimant’s motor vehicle driver’s
license,the Courtmade an award tohim forexpenses he incurredwhenhewas arrested
and had his vehicle impounded as a result p. 236
SCHREYER VS. DIV. OF MOTOR VEHICLES (CC-00-165)
An award was made to claimant for a towing charge which he incurred during a
traffic check when it was established that respondent had failed to mail a
letter of notification of the revocation of claimant’s driver’s license with
proper postage to him and it was returned to respondent. Claimant was unaware
of the revocation of his license when he was stopped by law enforcement p. 207
NEGLIGENCE —
See also Berms; Fallin2 Rocks and Rocks & Streets and Highways
BANIAK VS. DIV. OF HIGHWAYS (CC-96-419)
This claim came before the Court upon a stipulation wherein certain facts and
circumstances were agreed to. Respondent completed a construction project in
1977 on Dents Run Road, Monongalia County. The project resulted in flood damage
to claimant’s property. The Court after reviewing the claim and the stipulation
finds that respondent was negligent and that the amount of the damages is fair
and
reasonable. Award of $5,000.00 p. 48
BOYLES VS. DIV. OF HIGHWAYS (CC-98-l70)
Where claimant’s vehicle struck a large hole on 1-64 during construction by
respondent’s contractor, the Court held that respondent was negligent for failing
to inspect the site conditions. The Court held that respondent had a duty to
inspect the site and the failure to do so presented a risk to the public. Award
of $295.56. p. 50
BRAGG VS. DIV. OF HIGHWAYS (CC-97-3 11)
352 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claimant’s motorcycle struck a hole on Route 21/33 in Fayette County. The Court
held respondent had constructive notice of the hole and made an award. p.1
CLUTTER VS. DIV. OF HIGHWAYS (CC-98-157)
Claimant brought action for damage to his vehicle caused by a large hole in
Route 2, Mason County. The Court held that respondent was on notice about this
hole, especially given the fact that a prior claim was brought regarding the
exact same hole approximately two months before this claim. Award of $250.00.
p. 22
DEER VS. DIV. OF HIGHWAYS (CC-97-358)
Claimant’s vehicle was damaged while traveling on W. Va. Route 10 in Logan
County. Respondent negligently sprayed concrete on claimant’s vehicle.
Award of $500.00 p. 2
EASTER, SR., and DEBRA SUE EASTER VS WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(CC-95-334)
The parties stipulated to this claim in the amount of $500.00. Claimants’
retaining wall located near the intersection of Route 8/4 Kanawha County was
damaged. The parties agree that the negligence of respondent w as one factor in
damaging the wall p. 6
HARTLEY VS. DIV. OF HIGHWAYS (CC-99-155)
The parties agreed to stipulate this claim for damage done to claimant’s
vehicle in the amount of $148.39 The parties agreed that respondent failed to
maintain Route 2 in Mason County on the date of this incident p. 9
HUNDAGEN VS. DIV. OF HIGHWAYS (CC-98-303)
Claimant brought a ction for vehicle damage c aused by a rock fall w hue
traveling U.S. Route 250 also called the “narrows”. The Court held that given
the length of time which respondent has known of the rock falls, and the
frequency of claims brought due to rock falls in the same area that
respondent’s remedial measures of warning signs, over head lights and frequent
patrols are not enough to eradicate
this hazard. Award of$1,550.00 p. 81
JACKSON VS. WEST VIRGINIA DEPARTMENT OF HIGHWAYS (CC-97-418)
The parties agreed to stipulate this claim in the amount of $3,500.00. Parties
agreed that respondent was responsible for some but not all of the damage done to
claimant’s vehicle while traveling on Route 315 in Mingo County... p. 7
LOOSEMORE VS. DIV. OF HIGHWAYS (CC-99-92)
W.Va.] REPORTS
STATE COURT OF CLAIMS 353
Claimant brought two separate claims for vehicle damage caused by vehicle
debris being thrown onto her parked car. The two incidents occurred within a
two week period when claimant had her car parked on the berm of Route 27, Brooke County. The first incident involved asphalt
debris being thrown onto the claimant’s car breaking the front windshield, and
the second involved her back windshield. The Court held that respondent was on
notice that there was a hazard for road debris due to serious drainage problems
and heavy truck traffic; and that it failed to take reasonable measures to
remedy the hazard. Award of $200.00. Varner ‘s Adm ‘n vs. State Road Comm ‘n
8 Ct. Cl. 119, 122 (1970); See also Cole vs. DIV. OF
HIGHWAYS, 21 Ct. Cl. 15 (1995) p. 87
NOBLE VS. DIV. OF HIGHWAYS (CC98-326)
Claimant’s vehicle was damaged when it struck a manhole depression that had not
been made level to the pavement after a paving job was performed by a
contractor for the respondent. Respondent asserts that its not responsible for
the maintenance of manholes on this route, and that the contractor was
responsible for this hazard. The Court held that County Route 52/61 had been
grandfathered into the State system and therefore respondent has an obligation
to maintain the route in a proper maimer. This obligation requires respondent
to inspect the road after any paving operation and to ensure that proper
warning signs are in place. Award of
$500.00 p.30
PAXTON VS. DIV. OF HIGHWAYS (CC-98-250)
Claimant brought action for negligent maintenance of a portion of Route 60 in
Wayne County. Claimant alleged that respondent failed to erect proper warning
signs, failed to place reduction of speed signs for the curve, and for an
unprotected embankment. The Court held that although the guardrail was in a
state of disrepair and that the curve was sharp, claimant was negligent in the
operation of his vehicle by traveling too fast especially given the inclement
weather conditions. Claim
disallowed p. 92
TALBOTT VS. DIV. OF HIGHWAYS (CC-95.308)
A consolidated claim where the driver of a vehicle was killed and the passenger
seriously injured in a collision at the intersection of U.S. Route 33/119 and
U.S. Route 47. The Court held that the intersection was not negligently
designed, constructed, or maintained; a nd that the de gree and angle o ft he
de sign did n ot prevent a motorist from having sufficient visibility distances
to enter the said
roadway in a safe fashion p. 55
TALBOTT VS. DIV. OF HIGHWAYS (CC-95-308)
354 REPORTS
STATE COURT OF CLAIMS [W.Va.
A consolidated claim where the driver of a vehicle was killed and the passenger
seriously injured in a collision at the intersection of U.S. Route 33/119 and
U.S. Route 47. The Court rejected claimants’ theory that respondent negligently
failed to place adequate traffic control signal at said location, evidence
established that based upon the Manual on Uniform Traffic Control Devices
(MUTCD) the criteria to establish the need for a traffic signal was not called
for p. 55
TALBOTT VS. DIV. OF HIGHWAYS
(CC-95-308)
A consolidated claim where the driver of a vehicle was killed and the passenger
seriously injured in a collision at the intersection of U.S. Route 33/119 and
U.S. Route 47. The Court rejected claimants’ theory that the State was
negligent for failing to erect a special “limited sight distance”warning sign
upon approaching the intersection. The Court held that there were sufficient
warning signs to notify drivers of the approaching intersection and that the
(MUTCD) does not contain such a sign. p.55 TALBOTT VS. DIV. OF HIGHWAYS
(CC-95-308)
The C ourt found, as a matter o f fact, that c laimants’ statistics listing 16
accidents at the said intersection between the dates of October 1, 1983 and
January 22, 1990, the year of this incident, did not establish that this was a
dangerous
intersection P. 55
TALBOTT VS. DIV. OF HIGHWAYS
(CC-95-308)
The Court held that respondent was not negligent in the design of the
intersection, based on the fact that it was designed for a speed limit of 40
M.P.H. and was posted for a 50 M.P.H. The design speed does not control the
posting of a speed
limit. p. 55
WEST VS. DIV. OF HIGHWAYS (CC-O0-23)
In a claim for damage to a well affected by an infiltration of iron alleged to
be c aused by b lasting b y an in dependent c ontractor of the respondent, the
C ourt denied the claim as being too speculative to conclude that the blasting
was the
proximate cause of the damage to the well p. 302
WILLIAMS VS. DIV. OF HIGHWAYS (CC-99-95)
Claimant was involved in an accident when he was driving his vehicle on County
Route 21 in Marshall County. He alleged negligent maintenance of the road as
there was a hole present at the accident scene. The Court determined the
claimant was familiar with condition of the road and he should have exercised
more care under the circumstances. There was insufficient evidence of
negligence on the part of the
respondent p. 303
W.Va.] REPORTS
STATE COURT OF CLAIMS 355
NOTICE
ADKINS VS. DIV. OF HIGHWAYS (CC-98-95)
The claimant sought an award for damage done to her vehicle caused by a
large hole in the road at the junction of W. Va. Route 61 and County Route
79/3. The respondent’s employees had inspected the junction on a regular basis
and conducted repair work on numerous occassions. The Court held that
respondent had actual notice of the hazard and failed to take reasonable steps
to repair it. Award of
$145.15 p. 16
BRAGG VS. DIV. OF HIGHWAYS (CC-97-31 1)
Claimant’s motorcycle struck a hole on Route 2 1/33 in Fayette County. The
Court held respondent had constructive notice of the hole and made an award.
p.1 BAILEY VS. DIV. OF HIGHWAYS (CC-99-l 19)
Claimant’s vehicle struck a large patch of ice with gravel and sand on top of
the ice forcing him to lose control of his vehicle. The Court held that the
clogged drain near the location as well as a cracked storm drain created a
hazard which the respondent knew or should have known existed. Award of
$1,000.00 p. 17
CLUTTER VS. DIV. OF HIGHWAYS (CC-98-157)
Claimant brought action for damage to his vehicle caused by a large hole in
Route 2, Mason County. The Court held that respondent was on notice about this
hole, especially given the fact that a prior claim was brought regarding the
exact same hole approximately two months before this claim. Award of $250.00.
p. 22
FOSTER VS. DIV. OF HIGHWAYS (CC-98.120)
The Court held that claimant did not establish that respondent had actual or
constructive notice of the hole in the road. Claimant did not present any
evidence that respondent did not take reasonable steps to ensure the safety of
Route 79/3 in Kanawha County. Pritt vs. Dept. of Highways, 16 Ct. Cl. 8
(1985); Harmon vs. Dept.
of Highways, 16 Ct. Cl. 127 (1986) p. 24
GREEN VS. DIV. OF HIGHWAYS (CC-98-281)
Where respondent knew that Route 85 in Wharton, Boone County was a problem area
for holes in the road due to heavy coal truck use, the Court held that
respondent had at least constructive if not actual notice of the hole which
damaged claimant’s vehicle. Award of $250.00 Pritt vs. Dept. of Highways, 16
Ct. Cl. 8 (1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986) p.
76
356 REPORTS
STATE COURT OF CLAIMS [W.Va,
HUGHART VS. DIV. OF HIGHWAYS (CC-98-430)
Where claimant’s vehicle struck a large piece of debris on 1-64, near South
Charleston, the Court held that respondent was not negligent in its maintenance
of the roadway since it had not received notice of the debris, as was
demonstrated by the introduction by respondent of their emergency service daily
call in records. Claim
disallowed p. 80
KUTHY VS. DIV. OF HIGHWAYS (CC-99-137)
Where claimant could not establish evidence that respondent had prior notice of
a hole on County Route 8 in Ohio County; and no evidence was presented that
respondent did not take reasonable steps to ensure the safety of motorists on
County Route 8, the Court held that there is insufficient evidence of
negligence upon which to base an award. Claim disallowed. Adkins vs. Simms, 130
W.Va. 645; 46 S.E.2d 81(1947). Pritt vs. Dept. of Highways, 16 Ct. Cl. 8
(1985); Harmon vs. Dept.
of J-Jighways, 16 Ct. Cl. 127 (1986) p. 85
NAPIER VS. DIV. OF HIGHWAYS (CC-98-1 12)
Claimant brought action for vehicle damage when she struck a hole two feet in
length, six-eight inches wide, and three-four inches deep. The Court held that
respondent had at least constructive notice of this hole since it had been
working on this stretch of road prior to this incident and should have noticed
and patched this
hole. Award of $244.51 p. 91
WELLMAN VS. DIV. OF HIGHWAYS (CC-98-29)
An award was made to each of the claimants for personal injuries and property
damage where the parties stipulated that respondent was aware that the area of
the accident was a imown for having rocks fall from the hillside, but
respondent failed to mark the area with signs or to otherwise protect the
traveling
public p. 169
PEDESTRIANS
DEAN VS. DIV. OF HIGHWAYS (CC-00-21 I)
While claimant was walking across a bridge, he stepped into a hole in the
walkway causing an injury. The parties stipulated the facts and that respondent
was negligent in its maintenance of the bridge. The Court made an award in the
amount
of the settlement p. 245
JONES VS. DIV. OF HIGHWAYS (CC-97-323
Claimant and respondent stipulated that respondent was negligent when it failed
to complete a paving project in the proper manner and left a ditch without a
W.Va.] REPORTS
STATE COURT OF CLAIMS 357
warning sign at the bottom of steps to the roadway. The Court made an award in
accordance with the stipulation p. 198
O’NEAL VS. DIV. OF HIGHWAYS (CC-99-52)
The facts and circumstances were agreed to by the parties in a claim for
physical injuries which occurred when claimant was walking through an underpass
and she stepped into a large hole. Respondent was responsible for the
maintenance of the area which was in a state of disrepair. The parties also
agreed upon an amount of the award which was granted by the Court p. 331
WOOTEN VS. DIV. OF HIGHWAYS (CC-97-7)
Where claimant slipped and fell in a hole while walking on Route 3 in Raleigh
County, the Court held that respondent did not have any notice, actual or constructive
of this road hazard and denied the claim p. 4
PRISONS AND PRISONERS
ADKINS VS. DIV. OF CORRECTIONS (CC-0O-12l)
The Court determined that it did not have jurisdiction over a claim for a
missing television set belonging to claimant, an inmate in the custody of
respondent, as the claim was not filed within the two year statute of
limitations p.
ASH VS. DIV. OF CORRECTIONS (CC-00-238)
In a claim for lost clothing, money removed from his account for items he did
not receive, and lost paper, the Court denied an award for all counts except
for the money removed from his account which appeared to have been removed in
error.
p.307
BARBOUR COUNTY COMM’N VS. DIVISION OF CORRECTIONS (CC-99- 202)
Claimant brought this action to recover costs for providing housing and/or
medical care to prisoners who have been sentenced to a state penal institution,
but who have remained in the custody of claimant. Award of $1,850.00. C ounty Comm ‘n of Mineral County vs. Division of Corrections,
18 Ct. Cl. 88 (1990). p.8 BOWERS VS.
DIV. OF CORRECTIONS (CC-O0-270)
Claimant alleged personal property was wrongfully taken from him while he was
an inmate. The Court determined that property had been confiscated with policy
guidelines for inmates. The principle of de minimis non curat lex applied
to the remainder of his claim so no award was made p. 234
358 REPORTS STATE COURT OF CLAIMS [W.Va.
CABELL COUNTY COMM’N. VS. DIV. OF CORRECTIONS (CC-00-335)
Claimant brought this action to recover costs for providing housing and/or medical
care to prisoners who have been sentenced to a state penal institution, but who
have remained in the custody of claimant. An award was made to the claimant. County
Comm ‘n of Mineral County vs. Division of Corrections, 18 Ct. CI. 88
(1990).
p.224
CUNNINGHAM VS. DIVISION OF CORRECTIONS (CC-98-239)
The Court holds that a Bailment exists where property of an inmate is recorded
for an inmate and taken for storage purposes. The respondent has an obligation
as the bailee to receive and take proper care of the bailor’s property.
Respondent breached this obligation by not having satisfactory documentation
for management of claimant’s trust account. Award of $74.24 p. 68
EDENS VS. DIV. OF CORRECTIONS (CC-00-204)
Where claimant’s personal property was confiscated to be mailed to an address
specified by claimant at the facility of the respondent and claimant determined
that the items were not received, the Court made an award for the
property as a bailment situation existed p. 221
GARDNER, JR. VS. DIVISION OF CORRECTIONS (CC-99-29l)
Claimant had his personal property recorded and taken for storage purposes by
St. Mary’s Correctional Center, a facility of respondent’s, while an inmate.
The Court held that a bailment relationship was established and that respondent,
as bailee, failed in its duty to provide satisfactory documentation for return
of the property to claimant. Award of $250.00. Heard vs. Division of
Corrections, 21 Ct. Cl. 151
(1997) p. 73
GARRISON VS. DIV. OF CORRECTIONS (CC-00-l48)
A claim for personal items lost in the prison laundry system was denied by the
Court as claimant chose to bring the personal items into the prison and he
assumed the risk of loss p. 236
HAMPSHIRE COUNTY COMMISSION VS. DIVISION OF CORRECTIONS (CC- 99-317)
Claimant brought an action to recover costs for housing prisoners who have been
sentenced to a state penal institution, but who have remained in the custody of
claimant. Award of $13,813.53. County Comm ‘n of Mineral County vs. Division
of
Corrections, 18 Ct. Cl. 88 (1990) p. 39
KING VS. DIVISION OF CORRECTIONS (CC-99-252)
W.Va.j REPORTS
STATE COURT OF CLAIMS 359
Court denied claim for destruction of
personal property. Claimant an inmate at Mt. Olive Correctional Center did not
establish sufficient evidence that his personal property was destroyed by
respondent’s employees during a search of his
cell. p. 84
McDOWELL COUNTY CORRECTIONAL CENTER VS. DIVISION OF CORRECTIONS (CC-99-3 10)
Claimant brought this action to recover costs for housing prisoners who have
been sentenced to a state penal institution, but who have remained in the
custody of claimant. Award of $224,690.14. County Comm ‘n of Mineral County vs.
Division of Corrections, 18 Ct.Cl. 88
(1990) p. 41
McDOWELL COUNTY CORRECTIONAL CENTER VS. DIVISION OF CORRECTIONS (CC-00-3 11)
Claimant brought this action to recover costs for housing prisoners who have
been sentenced to a state penal institution, but who have remained in the
custody of claimant. Award of $237,039.89. County Comm ‘n of Mineral County
vs. Division of Corrections, 18 Ct. CI. 88 (1990) p. 227
MONONGALIA COUNTY COMM’N. VS. DIV. OF CORRECTIONS (CC-00-347)
Claimant brought this action to recover costs for housing prisoners who have
been sentenced to a state penal institution, but who have remained in the
custody of claimant. An award was made to the claimant. County Comm ‘n of Mineral County vs. Division of
Corrections, 18 Ct. Cl. 88 (1990) p.
228
NASSER VS. REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY (CC-00- 104)
Where claimant’s personal property was kept in a locker at the facility of the
respondent and there was damage to the property, the Court will make an award
for the damaged property. In the instant claim, claimant was an employee of
respondent.
p.164
PAGE VS. DIV. OF CORRECTIONS (CC-00-414)
Claimant had several items of personal property secured by prison officials
while he served time in lock up and the items were missing when he was sent
back to the regular cell block. The Court held that a bailment occurred and
made an award
for the fair value of the items p. 238
PHILLIPS VS REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY (CC-00.- 179)
360 REPORTS
STATE COURT OF CLAIMS [W.Va.
A bailment situation was created when claimant turned over his watch to
respondent’s employees when he became an inmate in a facility of the
respondent; therefore, the Court made an award to claimant when the watch was
not returned to
claimant upon his release p. 199
PHILLIPS VS. REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY (CC-99-468)
Claimant, formerly an inmate at the Southern Regional Jail, brought this action
for the loss of his Gortex Rocky boots, which was allegedly lost by
respondent’s employees. The parties agreed that $200.00 was a fair and
reasonable amount for the value of claimant’s boots. Award of $200.00. p. 114
WALTERS VS. DIVISION OF CORRECTIONS (CC-96-59l)
Claimant, an inmate at Mt. Olive Correctional Center, brought this action to
recover the value of his stereo system, which he claims was never returned by
after claimant sent it out for repairs due to being dropped by an employee of
respondent’s during a shake-down. The Court held that claimant did not
establish a prima facie case of bailment, since he could not establish that
respondent ever had receipt or custody of the stereo. However, the Court made
an award of $100.00 for the damage done to the stereo when respondent’s
employees dropped it. Award of $100.00.
p.106
WARD VS. DIVISION OF CORRECTIONS (CC-98-289)
Claimant, an inmate at Mt. Olive Correctional Center, brought this action for
loss of personal property which was taken to the State Shop and inventoried by
respondent, while claimant was in lock-up for forty-five. The Court held that
claimant established that he did deliver his property to respondent; therefore
a bailment existed and respondent failed to adequately care for his property.
Award of
$32.75 p. 104
WELCH VS. DIV. OF CORRECTIONS (CC-00-24)
A claim for the loss of tuition in a computer course being taken by claimant as
an inmate was denied by the Court as claimant violated prison policy in the use
of
his computer p. 239
WHITE VS. DIVISION OF CORRECTIONS (CC-99-382)
Award of $12.00 for lost clothing while claimant was an inmate. p. 45
WOOD COUNTY COMMISSION VS. DIVISION OF CORRECTIONS (CC-99- 328)
W.Va.j REPORTS
STATE COURT OF CLAIMS 361
Claimant brought this action to recover costs for providing housing and medical
services to prisoners who have been sentenced to a state penal institution, but
who have remained in the custody of claimant. Award of $30,375.00. County Comm ‘n of Mineral County vs. Division of
Corrections, 18 Ct. Cl. (1990). P. 44
WOOD COUNTY COMMISSION VS. DIVISION OF CORRECTIONS (CC-00- 486)
Claimant brought this action to recover costs for providing housing and medical
services to prisoners who have been sentenced to a state penal institution, but
who have remained in the custody of claimant. Award of $30,375.00. County Comm ‘n of Mineral County vs. Division of
Corrections, 18 Ct. Cl. (1990). p. 270
WV REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY VS. DIVISION OF
CORRECTIONS (CC-99-451)
Claimant provides and maintains the six regional jails in the State as facilities
for the incarceration of prisoners who have committed crimes in various
counties. Claimant brought this action to recover the costs of housing and
providing associated services to prisoners who have been sentenced to a State
penal institution, but who have remained hi the
regional jails for periods of time beyond the dates of the committent orders.
Award of $4,017,465.50. County Comm ‘n
of Mineral County vs. Division of Corrections, 18 Ct. Cl. 88 (1990) p. 108
PUBLIC EMPLOYEES
BOROWSKI VS. WV SOLID WASTE MANAGEMENT BD. (CC-O0-300)
Claimant incurred travel expenses for
which she was not reimbursed in the
proper fiscal year. The Court made an award p. 234
MODESITT VS. DEPT. OF TAX AND REVENUE (CC-01-009)
Claimant made certain on behalf of the State agency for which he was not
reimbursed in the proper fiscal year. The Court made an award p. 293
TAUCHER VS. DEPT. OF PUBLIC SAFETY (CC-00-51)
When claimant brought an action for reimbursement of contributions deducted in
error from h is s alary for deposit in the D epartment o f Public S afety
Retirement Voluntary Pledge Fund, the Court denied the claim as the Fund is not
a statutory fund; therefore, the C ourt has n oj urisdiction overt he F mid and
c annot
make an award against the Fund p. 208
STATE AGENCIES
362 REPORTS STATE
COURT OF CLAIMS [W.Va.
CAMERON GAS COMPANY VS. DEPT. OF ADMIN. (CC-99-363 & CC-99-377)
Claimant brought these actions to recover various charges incurred by State
agencies when gas was purchased from claimant. The parties entered into a
consent decree setting forth an agreement for the basis for the award and the
amount of the award upon which the Court made an award p. 230
CURREY VS. DEPT. OF EDUCATION (CC-00-355)
A claim for tuition reimbursement
sought by a teacher was a denied by the Court where the agency stated that it
did not have sufficient funds at the end of the
fiscal year in question. See Air/cern p. 267
TAX NET GOVERNMENTAL COMMUNICATIONS CORPORATION VS.
DEPARTMENT OF TAX AND REVENUE
(CC-99-224)
Award of $2,124.43 for network services provided to the respondent, there were
sufficient funds expired in the proper fiscal year from which the bill could
have
been paid p. 14
STIPULATED CLAIMS
AT&T CORPORATION VS. WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIV. OF
HIGHWAYS, (CC-98-129)
This claim was submitted t o the Court based upon a stipulation. In the course
of excavating flood debris, Ground Breaker’s Inc. a contractor employed by
respondent cut a fiber optic cable owned by claimant. The parties agreed to settle
the claim for the total sum of $90,000.00. Award of $90,000.00 p. 118
BANIAK VS. DIV. OF HIGHWAYS (CC-96-419)
This claim came before the Court upon a stipulation wherein certain facts and
circumstances were agreed to. Respondent completed a construction project in
1977 on Dents Run Road, Monongalia County. The project resulted in flood damage
to claimant’s property. The Court after reviewing the claim and the stipulation
finds that respondent was negligent and that the amount of the damages is fair
and
reasonable. Award of $5,000.00 p. 48
BOOKER VS. DIV. OF HIGHWAYS (CC-98-263)
This claim came before the Court upon stipulation entered into by the parties
where the facts and circumstances were set forth by the parties. The claimant
was walking across the Coal River Bridge, Kanawha County when the concrete on
the sidewalk gave way causing him serious injuries. The Court having reviewed
the stipulation adopts it as its own and finds respondent negligent in its
maintenance of
W.Va.J REPORTS
STATE COURT OF CLAIMS 363
the bridge and agrees that the amount of the damages is fair and reasonable.
Award
of $4,000.00 p. 49
BURKET VS. DIVISION OF MOTOR VEHICLES (CC-99-282)
This claim came before the Court upon a stipulation between the parties. The
Court held that respondent was negligent in its production of the certificate
of title for claimant’s motorcycle and its failure to follow reasonable
procedures in the issuance of the certificate of title for claimant’s
motorcycle causing claimant
damages. Award of $2,500.00 p. 53
BURKIEVICZ VS. DIV. OF HIGHWAYS (CC-99-284)
This claim came before the Court for decision upon a stipulation entered into
by the parties. The Court having reviewed the facts and the stipulation fmds
that the respondent was negligent in not removing a broken sign post from the
berm of the highway which caused damage to claimant’s vehicle. Award of
$216.24. .
p. 37
DOTSON, AS GUARDIAN, NATURAL PARENT AND NEXT FRIEND OF AUSTiN RYAN DOTSON, AN
INFANT, (CC-97-388)
This claim came before the Court upon a Second Stipulation by the parties,
where the issues of liability and damages were agreed upon by the parties. The
Court having reviewed the claim and the stipulation of the parties agrees that
the settlement of the claims of the said parties for the gross sum of
$125,000.00 is fair and
reasonable p. 36
KUYKENDALL, JR. VS. STATE RAIL AUTHORITY (CC-99-399)
This claim came before the Court based upon the allegations in the Notice of
Claim and respondent’s Answer. Respondent admitted to the validity and amount
of claimant’s claim for $2,000.00 for a Black Angus Heifer that was struck and
killed by one of respondent’s trains. Respondent does not have a fiscal method
for paying for claims of this nature, therefore it is submitted to the Court
for determination.
Award of $2,000.00 p. 87
MATUSKY VS. DIV. OF HIGHWAYS (CC-99-170)
This claim came before the Court upon a stipulation. The Court having reviewed
it adopts it as its own and holds that respondent was negligent in not securing
a m etal p late c overing a hole on a bridge, and s aid negligence was the
proximate cause of claimant’s damages. Award of $500.00 p. 90
RARDON VS. DIV. OF HIGHWAYS (CC-98-345)
This claim was submitted to the Court
upon a stipulation entered into by the parties. The Court having reviewed the
facts and the stipulation fmds that respondent
364 REPORTS STATE
COURT OF CLAIMS [W.Va.
negligently left a hole in 1-79 during a construction project which caused
damage to claimant’s vehicle. The Court agrees that the amount of the
settlement is fair and
reasonable. Award of $250.00 p. 41
THE CONTINENTAL INSURANCE COMPANY VS. WEST VIRGiNIA STATE POLICE AND DEPARTMENT
OF ADMINISTRATION (CC-98-444)
This claim was submitted to the Court based upon a stipulation. The claimant
was a surety on a bond for the lead contractor for a project for the respondent
known as the “State Police Headquarters Requisition”. The contractor and the
principal on the bond failed to complete the work and defaulted on payment
obligations to the subcontractors. Claimant, as surety, paid $36,000.00 in
liquidated damages to respondent. Claimant then filed a claim to recover the
amount it paid, but
the parties agreed to settle for $21,255.00
p. 117
STREETS & HIGHWAYS — See also Comparative
Neli2ence and Nelience
ADKINS VS. DIV. OF HIGHWAYS (CC-98-368)
Claimant’s vehicle was totaled when her vehicle went into a dug out area
created by respondent in an attempt to resolve a water drainage problem. The
Court held that respondent did not use proper care by covering the hole with large metal plates, and should have used more
reasonable care until permanent repairs could be
made. Award of $500.00 p. 122
ALVARADO VS. DIV. OF HIGHWAYS (CC-98-73)
The Court made an award where claimant’s vehicle was damaged by a large hole in
Route 19 which was under construction by a contractor at the time. The Court
held that respondent had notice of the hazard. The Court also held that the
“save harmless” clause is not applicable because of a lack of privity between
claimant and the parties to the construction contract. Award of $260.95. .. p.
123
BENNTNGER VS. DIV. OV HIGHWAYS (CC-99-400)
The parties stipulated that claimant’s vehicle struck holes in the road
surface; that respondent was aware of the condition of the road; and that
respondent was negligent. The Court made an award based upon the stipulation p.
242
BRAITHEWAITE VS. DIV. OF HIGHWAYS (CC-99-435)
Claimant’s wife was operating his vehicle when it struck a hole that was
extending from the berm into the roadway. The Court held that a recovery could
be made as respondent had actual notice of the defect in the road p. 173
BRATTON VS. DIV. OF HIGHWAYS (CC-98-169)
W.Va.J REPORTS
STATE COURT OF CLAIMS 365
Claimant brought an action for damage
done to his 1962 Austin Healy 3000, a short wheel based vehicle, when it struck
a crown at an intersection. The Court held that while there is a change in the
grade at the intersection in question, it is not unlike any other in the State.
Therefore, the intersection was reasonably maintained. Furthermore, the Court
held that it would place an undue burden on the State to require it to build
all roads to suit specialty vehicles p. 52
BURKIEVICZ VS. DIV. OF HIGHWAYS (CC-99-284)
This claim came before the Court for decision upon a stipulation entered into
by the parties. The Court having reviewed the facts and the stipulation fmds
that the respondent was negligent in not removing a broken sign post from the
berm of the highway which caused damage to claimant’s vehicle, and agrees that
the amount of damages as stipulated to is fair and reasonable p. 37
CARR VS. DIV. OF HIGHWAYS (CC-00-167)
Claimant’s vehicle sustained damage when it struck a large hole on 1-70. The
Court made an award as respondent had constructive notice, if not actual
notice,
of a hole that large on an interstate p. 244
COMBS VS. DIV. OF HIGHWAYS (CC-99-402)
The unexplained existence of debris on a highway will not, in and of itself,
establish negligence on the part of the respondent. The Court will not make an
award unless respondent has notice of the debris and sufficient time in which
to remedy the
situation p. 175
COPLEY VS. DIV. OF HIGHWAYS (CC-99-l64)
A road known by respondent to be used by heavy coal trucks should be observed
more closely for road hazard problems. Respondent had constructive notice of
the hole; therefore, the Court respondent liable for the damages to claimant’s
vehicle which sustained damage when it struck the hole p. 196
CORY VS. DIV. OF HIGHWAYS (CC-98-62)
The parties stipulated that c laimant’ s vehicle was damaged when he lost
control of his vehicle which then struck a tree and the accident was the result
of the state of disrepair of the road surface. The Court reviewed the claim and
made an
award to claimant based upon the stipulation p. 225
DOTSON, AS GUARDIAN, NATURAL PARENT AND NEXT FRIEND OF AUSTiN RYAN DOTSON, AN
INFANT, (CC-97-388)
This claim came before the Court upon a Second Stipulation by the parties,
where the issues of liability and damages were agreed upon by the parties. The
Court
366 REPORTS
STATE COURT OF CLAIMS [W.Va.
having reviewed the claim and the stipulation of the parties agrees that the
settlement of the claims of the said parties for the gross sum of $125,000.00
is fair and
reasonable p. 36
FERGUSON VS. DIV. OF HIGHWAYS (CC-99-l 11)
Even though the Court found respondent had constructive notice of a hole in the
pavement, the Court denied the claim as claimant was operating his vehicle too
fast for the conditions then and there existing. His negligence was equal to or
greater
than that of the respondent p. 275
GETZ VS. DIV. OF HIGHWAYS (CC..99-353)
Claimants’ vehicle sustained damage when it struck a hole in the road in
Barbour County for which the Court made an award. The evidence established that
respondent had constructive notice of the hazardous condition which constituted
negligence. Claimants were granted an award p. 250
GREEN VS. DIV. OF HIGHWAYS (CC-98-281)
Where respondent knew that Route 85 in Wharton, Boone County was a problem area
for holes in the road due to heavy coal truck use, the Court held that
respondent had at least constructive if not actual notice of the hole which
damaged claimant’s vehicle. Award of $250.00 Pritt vs. Dept. of Highways, 16
Ct. Cl. 8 (1985); Harmon vs. Dept. oJHighways, 16 Ct. Cl. 127 (1986) p.
76
HARLESS VS. DIV. OF HIGHWAYS (CC-98-178)
Stipulated award of $202.11, where claimant’s vehicle struck a rock which
respondent had forgotten to remove from the road after performing culvert work.
p.27 HILL VS. DIV. OF HIGHWAYS (CC-94-65 1)
The Court will deny a claim for damage to a vehicle alleged to be caused by
respondent’s failure to maintain the road in a proper manner where claimant
failed to establish that respondent had notice of the condition alleged. The
Court relies upon the principle set forth inAdkin v. Sims, 130 W.Va.
645; 46 S.E. 2d 81(1947).
p.163
KEYSER VS. DIV. OF HIGHWAYS (CC-99-233)
The Court denied this claim for damages as the result of loose gravel on the
road from placement of gravel on the berm as the Court held that this set of
circumstances is insufficient to constitute negligence on the part of the
respondent.
p.214
W.Va.] REPORTS
STATE COURT OF CLAIMS 367
LEWIS VS. DIV. OF HIGHWAYS (CC- 98-106)
Claimant’s vehicle struck a hole in the road. Respondent acknowledged that it
had prior knowledge of the hole and had filed it approximately eight days prior
to this incident with a cold mix asphalt. The Court held respondent did not
take reasonable steps to ensure the public safety given that this was a high
priority road and that respondent was aware of the hole and the propensity of
cold mix to come out
of patched holes. Award of$171.72 p. 28
LINKOUS VS. DIV. OF HIGHWAYS (CC-00-269)
Claimant’s vehicle received damages when it struck a low manhole on a street in
Webster Springs. The Court made an award to claimant as the evidence
established that respondent paved the area but failed to raise the manhole
covers to pavement level. Respondent had notice of the condition of the manholes
and was
negligent in its maintenance of the road p. 225
LOOSEMORE VS. DIV. OF HIGHWAYS (CC-99-92)
Claimant brought two separate claims for vehicle damage caused by vehicle
debris being thrown onto her parked car. The two incidents occurred within a two
week period when claimant had her car parked on the berm of Route 27, Brooke
County. The first incident involved asphalt debris being thrown onto the
claimant’s car breaking the front windshield, and the second involved her back
windshield. The Court held that respondent was on notice that there was a
hazard for road debris due to serious drainage problems and heavy truck
traffic; and that it failed to take reasonable measures to remedy the hazard.
Award of $200.00. Varner ‘s Adm ‘n vs. State Road Comm’n 8 Ct. Cl. 119,
122 (1970); See also Cole vs. DIV. OF
HIGHWAYS, 21 Ct. Cl. 15 (1995) p. 87
MCDANIEL VS. DIV. HIGHWAYS (CC-00-55)
Claimant alleged damages to his vehicle when he lost control of his vehicle in
ice and snow and it slid off the road where it received damages. The Court that
claimant was familiar with the road and should have been aware of the potential
for ice and snow to be present. There was no negligence established on the part
of the
respondent p. 291
PINKERTON VS. DIV. OF HIGHWAYS (CC-99-175)
Claimant brought action for damage to his vehicle as a result of being stuck in
mud while traveling County Road 10/2 in Belmont, Pleasants County, which is a
third priority road. The Court held respondent has a duty to maintain third
priority roads in a reasonable state of repair. Where respondent was on notice
that the road was in a state of disrepair and had been grading it due to ruts
and muddy conditions
368 REPORTS STATE
COURT OF CLAIMS [W.Va.
caused by frequent use by hunters, the Court held respondent failed to maintain
it in a
reasonable condition. Award of $275.00 p. 95
PUMPHREY VS. DIV. HIGHWAYS (CC-0O-42)
An isolated patch of ice on a road is generally insufficient to establish
negligence on the part of the respondent. Therefore, a claim b ased upon
claimant’s vehicle sliding on a patch of ice on the road was denied as
respondent did not have notice of
this condition p. 294
RARDON VS. DIV. OF HIGHWAYS (CC-98-345)
This claim was submitted to the Court upon a stipulation entered into by the
parties. The Court having reviewed the facts and the stipulation finds that
respondent negligently left a hole in 1-79 during a construction project which
caused damage to claimant’s vehicle. The Court agrees that the amount of the
settlement is fair and
reasonable. Award of $250.00 p. 41
SAVILLE VS. DIV. HIGHWAYS (CC-99-2)
Claimant received an award for damages to his vehicle when it struck a large
hole in the road. Claimant had been forced to drive to his right by traffic
passing in the left lane. The Court held that respondent, at the least, had
constructive notice of the hazard based upon the size and location of the hole
p. 190
SHANHOLTZ VS. DIV. HIGHWAYS (CC-00-220)
Where one of the claimants was aware of the hole in the road, the Court denied
the claim based upon comparative negligence even though respondent also
was aware of the hole in the road p. 297
SMITH VS. DIV. HIGHWAYS (CC-99-74)
A claim for damages was denied where the evidence established that respondent
did not have notice of the irregularity in the pavement of Route 22 which
caused the damages to claimant’s vehicle. The principle of law in West Virginia
is thatthe State isnotthe insurerorguarantorofthe safetyofthetravelerson its
highways. In order for respondent to be liable the evidence must establish that
respondent had actual or constructive notice of the defective condition. . . . p. 192
STURM VS. DIV. OF HIGHWAYS (CC-99-409)
Claimant’s vehicle sustained damage when it struck a piece of concrete on I64
in Kanawha County. The Court held that since the debris came from a
construction site and respondent had a duty to keep the site clear of hazards
to the
traveling public, claimant was entitled to an award p. 263
W.Va.j REPORTS
STATE COURT OF CLAIMS 369
SUMMERFIELD VS. DIV. OF HIGHWAYS (CC-98-325)
Where respondent had done repair work on Route 60/14 in Kanawha County, and
where the evidence was that the hole on Route 60/14 was not a recent occurring
condition, the Court held that respondent did have constructive notice of
this hole. Award of $200.00 p. 101
TALBOTT VS. DIV. OF HIGHWAYS (CC-95-308)
A consolidated this claim where the driver of the vehicle was killed and the
passenger seriously injured in a collision at the intersection of U.S. Route
33/119 and U.S. Route 47. The Court held that the intersection was not
negligently designed, constructed, o r m aintained; a nd that the de gree and
angle o ft he d esign did n ot prevent a motorist from having sufficient
visibility distances to enter the said
roadway in a safe fashion p. 55
TALBOTT VS. DIV. OF HIGHWAYS (CC-95-308)
A consolidated claim where the driver of a vehicle was killed and the
passenger seriously injured in a collision at the intersection of U.S. Route
33/1 19 and U.S. Route 47. The Court rejected claimants’ theory that respondent
negligently failed to place adequate traffic control signal at said location,
evidence established that based upon the Manual on Uniform Traffic Control
Devices (MUTCD) the criteria to establish the need for a traffic signal was not
called for p. 55
TALBOTT VS. DIV. OF HIGHWAYS (CC-95-.308)
A consolidated claim where the driver of a vehicle was killed and the passenger
seriously injured in a collision at the intersection of U.S. Route 33/119 and
U.S. Route 47. The Court rejected claimants’ theory that the State was
negligent for failing to erect a special “limited sight distance”warning sign
upon approaching the intersection. The Court held that there were sufficient
warning signs to notif’ drivers of the approaching intersection and that the
(MUTCD) does not contain such a sign. p.55 TALBOTT VS. DIV. OF HIGHWAYS
(CC-95-308)
The Court found, as a m after of fact, that claimants’ statistics listing 16
accidents at the said intersection between the dates of October 1, 1983 and
January 22, 1990, the year of this incident, did not establish that this was a
dangerous
intersection p. 55
TALBOTT VS. DIV. OF HIGHWAYS (CC-95-308)
The Court held that respondent was not negligent in the design of the
intersection, based on the fact that it was designed for a speed limit of 40
M.P.H. and
370 REPORTS STATE
COURT OF CLAIMS [W.Va.
was posted for a 50 M.P.H. The design speed does not control the posting of a
speed
limit. p. 55
WITTMAN VS. DIV. OF HIGHWAYS (CC-98-244)
Where claimant’s vehicle was damaged by striking an exposed drain cover while
turning into a store, the Court held that respondent was not responsible for
the maintenance of the drain cover due to the fact that it was 12 feet beyond
the
respondent’s right of way. Claim disallowed p. 46
YOUNG VS. DIV. OF HIGHWAYS (CC-98-87)
Where claimant was forced to navigate her vehicle close to the berm of the road
due to inclement weather and struck a hole causing damage, the Court held that
respondent knew or should have known of this hole due to the fact that
respondent had an office on an adjacent street and based upon the nature and
condition of the
hole. p. 34
TREES and TIMBER
BROWN VS. DIV. OF HIGHWAYS (CC-99-325b)
Where a dead tree fell onto claimant’s property during a storm and caused
damage, the Court held that respondent did have notice of the condition and
failed to take reasonable steps to resolve the hazard. Award of $559.88. Jones v. DIV. OF
HIGHWAYS, 21 Ct. Cl. 445 (1995) p. 125
ELSEA VS. DIV OF HIGHWAYS (CC-99-33 1)
In a claim for damage to a vehicle when it struck a fallen tree in the roadway,
the Court made an award as respondent had constructive notice that the tree
posed a hazard to the traveling public p. 176
FERANDEZ VS. DIV. HIGHWAYS (CC-96-505)
A claim for damage to a vehicle when it struck a large hole on 1-64 was denied
as respondent did not have notice of the defect on 1-64 and the e vidence
established that it effected repairs immediately upon notice p. 178
GALLOWAY VS. DIV. OF HIGHWAYS (CC-98-21 1)
The Court disallowed a claim where a dead tree fell and struck claimant’s
vehicle. Claimant did not present any evidence that the tree was on
respondent’s right of way. The Court held that respondent can not be
responsible for inspection of all trees in the area that may or may not be in
the State’s right of way. Therefore, respondent did not have notice of this
tree’s condition or that the tree posed a hazard to the public. See Jones v. DIV. OF HIGH WA YS, 21 Ct. Cl. 45 (1995). .. p. 25
W.Va.1 REPORTS
STATE COURT OF CLAIMS 371
MAYS VS. DIV. OF HIGHWAYS (CC-98-138)
Where the claimant struck two different fallen trees in the road on Route 34/8
in Putnam County, the Court held that respondent had no actual or constructive
notice of these hazards p. 10
QUEEN VS. DIV. OF HIGHWAYS (CC-99-279)
Where a tree limb that was hanging over the roadway fell onto claimant’s
vehicle causing damage, the Court held that respondent had notice of the hazard
since the limb had been there for three years and claimant had called
respondent on two occasions prior to this incident. Award of $213.66 p. 147
THORNTON VS. DIV. OF HIGHWAYS (CC-98-347)
The Court held that respondent was not liable for damages to claimant’s car
trailer which s truck a tree leaning in to the roadway because the tree was not
on respondent’s right of way and the evidence did not establish that respondent
had notice that the tree was a hazard to the traveling public p. 193
WILEY VS. DIV. OF HIGHWAYS (CC-99-376)
Where respondent was aware of a tree in a precarious position to fall, it has a
duty to take affirmative action rather than waiting for it to fall. Thus,
claimant was made an award for damage to his residence when a tree fell on his
residence and the
tree was on the State’s right of way p. 266
VENDOR
ALLTEL CORPORATION VS. DEPT. OF NATURAL RESOURCES (CC-Ol-053)
Claimant provided state-wide mobile telephone services to respondent for which
it was not paid in the proper fiscal year. The Court made an award for the
services p. 308
ATTORNEY GENERAL VS. DIV. OF CORRECTIONS (CC-00-487)
Claimant provided professional services to respondent for which it was not paid
in the proper fiscal year. The Court made an award in an amount differing from
the amount claimed as the parties agreed to a lower amount p. 306
BATRA CARDIOLOGY ASSOCIATES, INC. VS. DIVISION OF JUVENILE SERVICES (CC-99-1 55)
Award of $276.00 for providing
medical services to a juvenile inmate at the Northern Regional Juvenile
Detention Center a facility of the respondent. The documentation for these
services was not processed in the proper fiscal year; there
372 REPORTS STATE
COURT OF CLAIMS [W.Va.
were sufficient funds expired at the end of the proper fiscal year from which
the bill
could have been paid p. 9
BECKLEY NEWSPAPERS VS. PUBLIC SERVICE COMM’N. (CC-00-83)
Award of $66.64 was made by the Court for advertising services provided to
respondent. The documentation for these services was not processed for payment
within the appropriate fiscal year; there were sufficient funds expired at the
end of the proper fiscal year from which the bill could have been paid p. 162
BELL ATLANTIC -
WEST VIRGINIA, INC. VS. ADJUTANT GENERAL
(CC99-191)
Award of $1,108.32 for providing telephone services to respondent. The
documentation for these services was not processed in the proper fiscal year;
there were sufficient funds expired at the end of the proper fiscal year from
which the bill
could have been paid p. 1
BELL ATLANTIC -
WEST VIRGiNIA, INC. VS. EDUCATION AND
STATE EMPLOYEES GRIEVANCE BOARD (CC-00-107)
Award of $224.96 was made by the Court for unpaid telephone services provided
to respondent. The documentation for these services was not processed for
payment within the appropriate fiscal year; there were sufficient funds expired
at the end of the proper fiscal year from which the bill could have been paid. ... p. 162
BILL LEWIS MOTORS, INC. VS. DIV. OF LABOR (CC-00-197)
Claim for automotive repair services was granted by the Court where the
documentation for these services was not processed for payment within the
appropriate fiscal year; there were sufficient funds expired at the end of the
proper fiscal year from which the bill could have been paid p. 223
BLUEFIELD REGIONAL MEDICAL CENTER VS. DIVISION OF JUVENILE SERVICES (CC-99-308)
Award of $209.75 for providing medical services to a juvenile at
respondent’s facility in Bluefield, Mercer County. The documentation for these
services was not processed for payment within the appropriate fiscal year;
there were sufficient funds expired at the end of the proper fiscal year from
which the bill could
have been paid p. 20
BROWNING FERRIS INDUSTRIES VS. DIVISION OF CORRECTIONS (CC-99- 364)
Award of $374.25 for providing waste removal services at several of
respondent’s facilities. The documentation for these services was not processed
W.Va.] REPORTS
STATE COURT OF CLAIMS 373
within the appropriate fiscal year. There were sufficient funds expired. Award
of
$374.25 p. 112
CAMC DENTAL CENTER VS. DIVISION OF JUVENILE SERVICES (CC-99- 374)
Award of $1,159.00 for providing dental services to a juvenile at respondent’s
West Virginia Industrial Home For Youth. The documentation for these services
was not processed within proper fiscal year. There were sufficient
funds expired in the appropriate fiscal year p. 67
CAMDEN CLARK MEMORIAL HOSPITAL VS. DIVISION OF JUVENILE SERVICES (CC-99-232)
Award of $75.00 for providing medical services to a juvenile at respondent’s
facility in Parkersburg, Wood County. The documentation for these services was
not processed for payment within the appropriate fiscal year; there were
sufficient funds expired at the end of the proper fiscal year from which the
bill could
have been paid p. 21
CHARLESTON DEPARTMENT STORE VS. PUBLIC SERVICE COMMISSION (CC-99-373)
Award of $463.79 for work clothing provided to respondent. The documentation
was not processed for payment within the appropriate fiscal year;
sufficient funds were expired P.
CORRECTIONAL FOODSERVICE MANAGEMENT VS. DIVISION OF CORRECTIONS (CC-99-69)
Award of $69,289.25 for providing food services to Mt. Olive Correctional
Center, a facility of respondent. The documentation for these services was not
processed for payment within appropriate fiscal year; sufficient funds were
expired.
Award of $69,289.25 p. 112
DANKA VS. ADJUTANT GENERAL (CC-00-032)
The Court made an award of $303.87 for maintenance services provided. The
documentation for these services was not processed for payment within the
appropriate fiscal year and there were sufficient funds available. Award of
$303.87.
p.131
DICKINSON FUEL COMPANY, INC. VS. ALCOHOL BEVERAGE CONTROL ADMINISTRATION
(CC-99-4 15)
Award of $508.27 for repairs made to air cooling system at respondent’s
Charleston office. The documentation for services was not processed in proper
fiscal
374 REPORTS
STATE COURT OF CLAIMS [W.Va.
year. There were sufficient funds expired in the appropriate fiscal year from
which
the bill could have been paid. Award of $508.27 p. 113
DIV. OF ENVIRONMENTAL PROTECTION VS. DIV. OF CORRECTIONS (CC0 1-178)
A claim for providing a Sludge Land Application Fee as required by law for a
facility of the respondent was not paid in the proper fiscal year. The Court
made an
award for the Fee p. 332
EDENS, CCR VS. BOARD OF BARBERS AND COSMETOLOGISTS (CC-99- 359)
Award of $209.60 for providing Court reporter services for the respondent. The
documentation for the services was not provided within the appropriate fiscal
year. Respondent admits the validity of the claim as well as the amount and
that
there were sufficient funds expired p. 39
EMP OF OHIO COUNTY VS. DIVISION OF JUVENILE SERVICES (CC-99-303)
The Court made an award of $135.40 for medical services provided to a juvenile
at respondent’s facility in Wheeling, Ohio County. The invoice was not
processed in the proper fiscal year and sufficient funds were expired from
which the
bill could have been paid p. 23
FERGUSON BROS. PLUMBING AND HEATING COMPANY VS. DIV. OF CORRECTIONS (CC-00-467)
A claim for air conditioner repair services was granted by the Court where the
documentation for these services was not processed for payment within the
appropriate fiscal year; there were sufficient funds expired at the end of the
proper fiscal year from which the bill could have been paid p. 268
GREEN ACRES REGIONAL CENTER C!O SHELTERED WORKSHOP OF NICHOLAS COUNTY VS.
DIVISION OF CORRECTIONS (CC-99-304)
Award of $468.40 for providing bottled water delivery and services at Mt. Olive
Correctional Center. The documentation for these services was not processed for
payment within the appropriate fiscal year and sufficient funds were expired
from
which the bill could have been paid p. 26
MASON VS. ALCOHOL BEVERAGE CONTROL ADM1N. (CC-00-435)
Award for providing storage facilities for liquor inventory under a agreement
with respondent was made as the documentation for services was not
W.Va.J REPORTS
STATE COURT OF CLAIMS 375
processed in proper fiscal year. There were sufficient funds expired in the
appropriate fiscal year from which the bill could have been paid. Award of
$508.27.
p.289
REVEAL VS. ETHICS COMMISSION (CC-99-339)
Award of $2,706.28 for legal services provided to respondent. The documentation
for these services was not processed within the appropriate fiscal year
and sufficient funds were expired P. 43
TAYLOR & JAMES, PLLC VS. WEST VIRGINIA INSURANCE COMMISSION (CC-99-290)
Award of $4,127.00 for legal services provided to respondent. The documentation
for these services was not processed for payment within the appropriate fiscal
year and sufficient funds were expired from which the bill could
have been paid p. 33
THOMAS MEMORIAL HOSPITAL VS. DIVISION OF JUVENILE S ERVICES (CC-99-495)
The Court made an award of $10.20 for providing medical services to a juvenile
at the South Central Regional Juvenile Detention Center. The invoice was not
processed in the proper fiscal year and sufficient funds were expired from
which the bill could have been paid. Award of $10.20 p. 114
UNIVERSITY OF GEORGIA RESEARCH FOUNDATION, INC. VS. DIV. OF NATURAL RESOURCES
(CC-00-109)
The Court made an award to claimant in accordance with the terms of its
contract for studying wildlife health conditions and it was not paid because
the invoice for the services was not processed in the proper fiscal year p. 211
VALLEY RADIOLOGISTS, INC. VS. DIVISION OF JUVENILE SERVICES (CC99-442)
The Court made an award of $226.00 for providing medical services to a juvenile
at the Northern Regional Juvenile Detention Center. The documentation for these
services was not processed for payment within proper fiscal year and there were
sufficient funds available. Award of $226.00 p. 115
WEST GROUP VS. DIVISION OF CORRECTIONS (CC-99-278)
Award of $5,317.08 for legal publications provided to Mt. Olive
Correctional Complex, a facility of the respondent. Documentation for these
publications was not received in the proper fiscal year. Respondent admitted
the
376 REPORTS STATE
COURT OF CLAIMS [W.Va.
claim and there were sufficient funds available from which the bill could have
been
paid. p. 34
WEST VIRGINIA ASSOCIATION OF REHABILITATION FACILITIES VS.
DEPARTMENT OF ADMINISTRATION
(CC-98-395)
Award of $27.62 for providing bulk mailing services to respondent. The
documentation for these services was not processed for payment within the
appropriate fiscal year; there were sufficient funds expired at the end of the
proper fiscal year from which the bill could have been paid p. 15
WV REGIONAL JAILS A ND C ORRECTIONAL FACILITY AUTHORITY VS. DIV. OF CORRECTIONS
(CC-00-447)
An award was made to claimant for maintaining prisoners in its facilities that
were to be housed in the prisons of the State but for reasons beyond the
control of the respondent the prisoners had to be held in facilities of the
claimant. The Court made an award in the amount agreed to by the parties. Award
of $4,583,896.00.
p.265
VENDOR — Denied because of insufficient funds
CABELL COUNTY COMMISSION VS. SUPREME
COURT OF APPEALS (CC99-476)
Claimant s eeks $8, 908.00 for home c onfmement drug testing fees which were
inadvertently credited to the wrong account for the fiscal years 1992 through
1998. Respondent admits the validity of the claim, but states that there were
insufficient funds expired in the appropriate fiscal year from which the claim
could
have been paid. Air/cern p. 120
CHARLESTON AREA MEDICAL CENTER, INC. VS. DIVISION OF CORRECTIONS (CC-99-265)
The Court disallowed a claim for $120,563.33 for medical services provided to
an imnate in the custody of respondent. The respondent admitted the validity of
the claim but stated there were insufficient funds expired in the appropriate
fiscal year from which the claim could have been paid. Air/cern p.
116
CORRECTIONAL MEDICAL SERVICES, INC. VS. DIVISION OF CORRECTIONS (CC-99-504)
Claimant seeks payment of $322,005.69
for medical services provided to an inmate. Respondent admits the validity of
the claim but states the amount is
W.Va.} REPORTS
STATE COURT OF CLAIMS 377
$315,427.47. There were insufficient funds available in the appropriate fiscal
year
from which the claim could have been paid. Air/cern p. 120
CORRECTIONAL MEDICAL SERVICES, INC. VS. DIVISION OF CORRECTIONS (CC-00-474)
Claimant seeks payment of $577,363.04 for medical services provided to
an inmate. Respondent admits the validity of the claim but states the amount is
$543,957.81. There were insufficient funds available in the appropriate
fiscal year from which the claim could have been paid. Airkem p. 268
CURREY VS. DEPT. OF EDUCATION (CC-0O-355)
A claim for tuition reimbursement sought by a teacher was a denied by the
Court where the agency stated that it did not have sufficient funds at the end
of the
fiscal year in question. See Air/cern p. 267
DAVIS MEMORIAL HOSPITAL VS. DIVISION OF CORRECTIONS (CC-99- 486)
The Court disallowed a claim for $34,331.13 for medical services provided to an
inmate. Respondent admitted validity of the claim, but states that there were
insufficient funds in its appropriation for the fiscal year from which the
claim could
have been paid. Air/cern P. 116
HIGHLAND CELLULAR, INC. VS. DIV. OF CORRECTIONS (CC-00-206)
The Court will disallow a claim for services where the State agency did not
expire sufficient funds in the appropriate fiscal year with which to pay the
invoice for
the services p. 197
MONTGOMERY GENERAL HOSPITAL VS. DIVISION OF CORRECTIONS (CC-99-2 12)
The Court disallowed a claim for $9,772.63 for medical services provided to
inmates at Mount Olive Correctional Center, as there were insufficient funds
expired in the appropriate fiscal year. Air/cern Sales and Service,
et aL vs. Dept. of Mental
Health8Ct.Cl. 180 (1971) p.12
MONTGOMERY GENERAL HOSPITAL VS. DIVISION OF CORRECTIONS (CC-00-488)
The Court disallowed a claim for medical services provided to inmates at Mount
Olive Correctional Center, as there were insufficient funds expired in the appropriate
fiscal year. Air/cern Sales and Service, et al. vs. Dept. of Mental
Health 8
Ct. Cl. 180 (1971) p.269
378 REPORTS
STATE COURT OF CLAIMS [W.Va.
OHIO VALLEY MED. CENTER VS. DIV. OF CORRECTIONS (CC-00-436)
Claimant seeks payment for medical services provided to an inmate. Respondent
admits the validity of the claim but states that there were insufficient funds
available in the appropriate fiscal year from which the claim could have been
paid. Afrkem p. 260
RADIOLOGY, INC. VS. DIVISION OF CORRECTIONS (CC-99-243)
Court disallowed a claim for $33.00 for medical services rendered to a county
jail inmate who should have been in custody of respondent. Airkem Sales and
Service, eta!. vs. Dept. of Mental Health 8 Ct. Cl. 180 (1971) p. 13
STEVENSON VS. ATTORNEY GENERAL (CC-99-256)
The Court disallowed a claim for $11,706.13 for travel expenses incurred by an
employee of respondent, as there were insufficient funds expired at the end of
the
appropriate fiscal year. Airkem p. 43
TEAYS RIVER CONSTRUCTION COMPANY VS. DIV. LABOR (CC-00-177)
Claimant seeks payment for electrical services provided to respondent.
Respondent admits the validity of the claim but states that there were
insufficient funds available in the appropriate fiscal year from which the
claim could have been paid. The Court denied the claim based upon its decision
in Airkem p. 211
TYGART VALLEY TOTAL CARE CLINIC VS. DIVISION OF CORRECTIONS (CC-99-l 95)
The Court disallowed a claim for $625.00 for medical services rendered to an
inmate in Pruntytown Correctional Center, as there were insufficient funds
expired
in the appropriate fiscal year. Airkem p. 14
UNIVERSITY HEALTH ASSOCIATES VS. DIVISION OF CORRECTIONS (CC- 99-27 1)
The Court disallowed a claim for $77,501 1.75 for medical services provided to
inmates at Huttonsville, Pruntytown, and Mt. Olive, as there were insufficient
funds expired at the end of the appropriate fiscal year. Airkem p. 44
WEST VIRGINIA UNIV. HOSPITALS, INC. VS. DIV. OF CORRECTIONS (CC- 00-312)
Claimant seeks payment for medical services provided an inmate in the custody
of the respondent. Respondent admits the validity of the claim but states that
there were insufficient funds available in the appropriate fiscal year from which
the claim could have been paid. The Court denied the claim based upon its
decision in
Airkem p.229
W.Va.] REPORTS
STATE COURT OF CLAIMS 379
W.VA. UNIVERSITY
BOARD OF TRUSTEES OF THE UNIVERSITY SYSTEM OF WEST VIRGINIA (CC-99-205)
The Court made an award of $100.00 for damage
done to claimant’s VCR while electrical work was being done in the apartment
which claimant rented from
respondent p. 33
BALLENGEE VS. BOARD OF TRUSTEES (CC-99-395)
Claimant seeks $53.00 for personal property damaged as a result of water
damage caused by a sprinkler system malfunction in her dormitory room at
respondent’s facility. Award of $53.00 p. 119
HUGHART VS. HIGHER ED. POLICY COMM’N. (CC-00-137)
Claimant’s personal property sustained damage when a hot water valve burst in
claimant’s dormitory room. Respondent admitted the validity and the amount of
the claim. The Court made an award as respondent does not have a fiscal method
to
pay such a claim p. 214
LOGAN MERRITT VS. BOARD OF TRUSTEES OF THE UNIVERSITY SYSTEM OF WV (CC-99-472)
The Court made an award of $339.18 for water damage done to claimant’s stereo
as a result of a water leak around a window at respondent’s facility. Award of
$339.18 p. 121
ORDERS
Crime Victims Compensation Fund
W.Va.J REPORTS STATE
COURT OF CLAIMS 381
TABLE OF CONTENTS
AMERICAN NATIONAL PROPERTY & CASUALTY COMPANY
(CV-0l-113) 388
BELT, MILDRED LENNA (CV-99-070) 398
CUSTER, CHRISTOPHER G. (CV-00-43) 394
EVANS, DAVID B. (CV-00-316) 393
FLETCHER, BARBARA J. (CV-00-286) 400
HARDY, JR., ROBERT M. (CV-00-340) 396
PITZER, LEROY J. (CV-99-230) 382
RILEY, LEWIS F. (CV-0O-199) 395
RILEY, LEWIS F. (CV-00-199) 395
TAPCO UNDERWRITERS (CV-01-173) 391
TEETS, MARY M. (CV-00-333) 383
WINGETT, MICHAEL N. (CV-98-3 13) 384
382 REPORTS
STATE COURT OF CLAIMS [W.Va.
ORDER ISSUED DECEMBER 5, 2000
Leroy I. Pitzer
(CV-99-230)
Robert E. Hofroyd, Attorney at Law, for claimant.
Joy M. Boiling, Assistant Attorney General, for the State of West Virginia.
BAKER, JUDGE:
An application of the claimant, Leroy I. Pitzer, for an award under the West
Virginia Crime Victims Compensation Act, was filed June 29, 1999. The report of
the Claim Investigator, filed March 1, 2000, recommended that no award be
granted, to which the claimant timely objected. An Order was issued on April
19, 2000, confirming the Investigator’s recommendation, in response to which
the claimant’s request for hearing was filed May 19, 2000. This matter came on
for hearing October 11, 2000, the claimant appearing in person and by counsel,
Robert E. Holroyd, attorney at law, and the State of West Virginia by counsel,
Joy M. Boiling, Assistant Attorney General.
On April 24, 1999, the claimant’s 19-year-old son, Samuel Aaron Pitzer, was
struck and killed by a vehicle driven by Stephen L. Shaver on U.S. Route 219 in
Raines Corner, Monroe County. Apparently, there had been two verbal
altercations between Mr. Pitzer and Mr. Shaver at a local bar on the night in
question. After the second confrontation, Mr. Shaver got into his vehicle and
left the scene. Shortly thereafter, Mr. S haver b egan to drive b ack to the s
cene. M eanwhile, Mr. P itzer began walking northbound in the southbound lane
of U.S. Route 219. According to a statement given to Senior Trooper Donald
Havens, Tracy Walters was driving north in the northbound lane, and was begging
Mr. Pitzer to get out of the middle of the road. He refused.
As Mr. Shaver drove towards the bar, his vehicle struck Mr. Pitzer in his lane
of travel. Mr. Pitzer struck the left front windshield, roof, and h ood of the
vehicle. Thereafter, Mr. Shaver left the scene and returned to his residence.
Mr. Pitzer sustained a severe closed head injury and a broken leg. In addition,
Mr. Pitzer had a b lood alcohol concentration o f 0 .153. H e was
transported to the C arilion Roanoke Memorial Hospital in Roanoke, Virginia,
where he was pronounced brain dead later that evening. As a result of the
incident, Mr. Shaver pleaded no contest to a charge of negligent homicide, and
received two consecutive one-year terms in the Southern Regional Jail in
Raleigh County.
The Court must conclude that the victim’s actions did constitute contributory
misconduct such that an award should be denied. The victim should not
W.Va.J REPORTS
STATE COURT OF CLAIMS 383
have been walking southbound in the northbound lane of U.S. Route 219.
Moreover, the victim was not of legal age to consume alcoholic beverages. It is
truly tragic that a young life was lost, and this Court’s sympathy is extended
to the family. However, nothing adduced at the full evidentiary hearing compels
the Court to reverse its prior ruling. Based on the foregoing, this claim must
be, and is hereby, denied.
ORDER ISSUED JANUARY 17, 2002
MaryM. Teet
(CV-00-333)
Claimant appeared in person.
Joy M. Boiling, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Mary M. Teet, for an award under the West
Virginia Crime Victims Compensation Act, was filed August 28, 2000. The report
of the Claim Investigator, filed March 16, 2001, recommended that no award be
granted, to which the claimant timely responded. An Order was issued on May 25, 2001,
upholding the Investigator’s recommendation, in response to which the
claimant’s request for h earing was filed June 8, 2001. T his matter came on
for hearing October 19, 2001, the claimant appearing in person, and the State
of West Virginia by counsel, Joy M. Bolling, Assistant Attorney General.
On or about July 10, 2000, the claimant’s 42-year-old son, Elmer Eugene
Teet, was shot and killed by Walter J. Thompson, Jr., in Beckley, Raleigh
County.
The o ffender was in dicted on first-degree murder charges. H e p leaded guilty
to
manslaughter, and was sentenced to a term of six months to two years in the
Anthony
Correctional Center.
The initial denial of an award was based on the alleged contributory misconduct
of the victim, Elmer Eugene Teet. Based on the report of the Beckley Police
Department, the offender shot the victim because the victim owed him money for
drugs.
At the hearing, claimant Mary M. Teet testified that her son’s probation
officer had advised her that her son was “clean” when he was tested for drugs,
and that “everybody tells me that he wasn’t on no kind of drugs” (Transcript,
page 5). She also indicated that “they” told her that “the boy (Walter
Thompson) was just up there showing off but said he didn’t mean to shoot my
son.” The claimant further
lay in the rain for over two hours, and that his funeral
384 REPORTS
STATE COURT OF CLAIMS [W.Va.
Corporal Dean R. Bailey of the Beckley Police Department confirmed that the
body was not discovered by the first officer on the scene. Corporal Bailey was
the second officer to respond to shots fired in the area; he stated that tall
grass probably obscured the view the first time (Transcript, page 18). He
stated that the investigation led officials to believe that the shooting
resulted from “an argument over drugs or money or both” (Transcript, page 13).
Upon additional questioning by the State, Ms. Teet admitted that four or five
months prior to the shooting, she paid money to a drug dealer “because I didn’t
want my son dead” (Transcript, page 21).
The fmal witness at the hearing, David Hudson, stated that he was present
during the criminal proceeding. He indicated that “Not one time in that court
hearing have I heard that it was over a drug deal gone bad or anything like
that” (Transcript, page 23).
It is evident to this Court that the claimant did what she could to protect her
son, and his death was indeed a tragedy. But the circumstances surrounding the
shooting remain unclear. Witness statements are in conflict as to whether it
was an accident or whether the offender meant to kill the victim.
When the events leading up to criminal conduct are too vague to determine
whether or not the victim played a role, this Court has declined to approve an
award of compensation. From the evidence in the record of this claim, it seems
more likely than not that the motive for the shooting was somehow linked to
illegal drug activity.
Based on the foregoing, the claim must be, and is hereby, denied.
ORDER ISSUED MAY 31,2001
MICHAEL N. WINGETT
(CV-98-3 13)
Claimant appeared in person.
Joy M. Boiling, Assistant Attorney General, for the State of West Virginia.
WEBB, JUDGE:
Claimant appeared in person.
Joy M. Boiling, Assistant Attorney General, for the State of West Virginia.
WEBB, JUDGE:
W.Va.] REPORTS
STATE COURT OF CLAIMS 385
An application of the claimant,
Michael N. Wingett, for an award under the West Virginia Crime Victims
Compensation Act, was filed October 14,1998. The report of the Claim
Investigator, filed June 18,1999, recommended that no award be granted, to
which the claimant timely objected. An Order was issued on March 29, 2000,
confirming the Investigator’s recommendation, in response to which the
claimant’s request for hearing was filed April 18, 2000. This matter came on
for hearing de nova January 17, 2001, the claimant appearing in person,
and the State of West Virginia by counsel, Joy M. Boiling, Assistant Attorney
General.
The 24-year-old claimant was a victim of criminal conduct in Dunbar, Kanawha
County, on or about August 3,1998. The claimant testified that he had started a
new job that day and had worked for twelve hours. He was walking home at
approximately 7:30 p.m., when he was approached by two men on the sidewalk. As
they passed each other on the street, they braised (sic) him. Claimant
testified that he had never seen the men before, that no words were exchanged,
and that no fighting occurred. (Transcript, p ages 5-6.) C laimant
testified that b etween 7:30 and 9:30 p.m., he was at a friend’s house and that
he had consumed approximately two or three beers. However, later in the
hearing, the claimant testified that he may have had three or four beers.
(Transcript, page 16.)
The claimant apparently then walked from the convenience store to his friend’s
house. On his way home, he stopped at the Dunbar Convenient Mart again. At this
time, the claimant testified that Emily Amend ran into the store and said to
him that there were two guys outside who wanted to kill him. (Transcript, page
6.) It is the claimant’s testimony that when he walked out of the Dunbar
Convenient Mart, Christopher Scott Adkins and James Cook approached him.
Christopher Scott Adkins acted as though he wanted to fight. Claimant testified
that he did not wish to fight either Christopher Adkins or James Cook. Claimant
asserts that when he then turned his back on the two men, Christopher Scott
Adkins stabbed him in the back with a large knife. (Transcript, page 6.) The
claimant fell to the ground. He does not recall anything after collapsing until
he was at the hospital.
It is not disputed that the claimant suffered near-fatal injuries, including
collapsed lungs, serious infections, a great loss of blood, and obvious pain
and suffering. He spent twenty-five days at Charleston Area Medical Center and
has permanent scarring as a result of this vicious attack.
By Order issued June 18, 1999, this claim was denied on the basis that at the
time of the writing of the original Finding of Fact and Recommendation there
was no record of the incident being reported to the police, which is required
under W. Va. Code §
14-2A- 14(b). On March 17, 2000, the
Kanawha County Prosecuting Attorney provided a copy of the police report, made
part of the record in this claim. The report indicates that the crime had in
fact been timely reported, and also provided the court record revealing that
the offender was arrested for malicious wounding and was
386 REPORTS
STATE COURT OF CLAIMS [W.Va.
subsequently convicted of unlawful wounding of the claimant. Therefore, this
claim is not being denied on this ground.
However, this Court does adopt the Claim Investigator’s recommendation as
stated in his memo to the Chief Deputy Clerk dated March 21, 2000, that this
claim be denied. The Investigator’s denial was based upon the fact that the
claimant was not an innocent victim of crime because he was intoxicated and had
entered into mutual combat. The Court also finds that the claimant was guilty
of contributory misconduct. Nothing adduced at the hearing convinces this Court
otherwise.
W. Va. Code § l42A-3(1) defmes “Contributory misconduct” as:
“any conduct of the claimant, or of the victim through whom the claimant claims
an award, that is unlawful or intentionally tortious and that, without
regard to the conduct’s proximity in time or space to the criminally injurious
conduct has causal relationship to the criminally injurious conduct that is the
basis of the claim and shall also include the voluntary intoxication of the
claimant, either by the consumption of alcohol or the use of any controlled
substance when the intoxication has a causal connection or relationship to the
injury sustained.”
Furthermore, W. Va. Code §
14-2A-14 provides the Court with the
discretion to deny or modify an award based upon the contributory misconduct of
the claimant or the victim through whom a claim is made. Therefore, when a
claimant’s actions fall without the express wording of contributory misconduct
as defined in W. Va. Code §
14-2A-3( 1), the Court will then look to
the purpose and intent of the Act. The Act established a system of compensation
for innocent
citizens who are victims of crime.
While misconduct includes unlawful conduct as a matter of law, “misconduct” may
be something less than unlawful conduct, though more than an act in poor taste.
Misconduct requires some deviation from the accepted norm or standard of proper
behavior. Conduct may be construed as “Contributory Misconduct” if an ordinary
prudent person could have reasonably foreseen that such a result, or
consequences of a generally injurious nature, was probable under all the facts
as they existed. In re Trador, CV-97-56 (1997). The proximate cause does
not require that the claimant should have been able to foresee the injury in
the precise manner in which it actually occurred, but only that consequences of
a generally injurious nature were probable under all the facts.
In this claim, it is evident from the claimant’s medical records that he was
intoxicated. The claimant’s blood alcohol level content was .20%. This is twice
what the legal limit would be if claimant were driving a vehicle. Furthermore,
the claimant testified that at the time of this incident he weighed only one
hundred forty pounds, and that he had druith no more than four beers.
(Transcript, page 16.) According to the claimant’s own testimony, these beers
were consumed in less than a two-hour period, between 7:30 p.m. and 9:30 p.m.,
the approximate time of this incident. (Transcript, page 15.) The
claimant’s brother, Kevin Alan Wingett, also made a recorded statement to
Officer W.S. Lucas of the Dunbar Police Department
W.Va.] REPORTS
STATE COURT OF CLAIMS 387
that everyone was drinking that day, and that “I was about the only sober one
there that night, you know.” Claimant also tested positive for marijuana.
Although he testified that he had not smoked marijuana for more than two weeks
and that he was trying to quit because his new employer was going to do drug
testing, this Court must take into consideration that this testimony from the
claimant may be self- serving. (Transcript, page 16.)
Although intoxication is not an absolute bar to an award, where there is a
causal connection between the intoxication and the injury sustained, the
claimant is not an innocent victim. In this claim, the claimant’s intoxication
does appear to have had a causal connection to his injuries. It is highly
probable that his intoxication did cloud his judgment in this incident,
especially when he left the Dunbar Convenience Mart, after he had been told
that there were two guys outside who wanted to kill him. Regardless of whether
or not the claimant’s intoxication clouded his judgement, his decision to leave
the store after being told that there were two people outside who wanted to
kill him was not the action of a reasonably prudent person. A reasonably
prudent person would not place himself in that situation, especially given the
fact that he had had an earlier confrontation with the two men who were outside
the store, who had threatened to kill him. It is reasonably foreseeable that
some form of harm would result under those circumstances.
Claimant testified that he did not know that the threat to kill him was made by
the same two men with whom he had had an earlier confrontation. However, his
own testimony contradicts this assertion as does his recorded statement to the
investigating officer, Officer W.S. Lucas of the Dunbar Police Department, on
August 31, 1998. Claimant made the following statement to Officer Lucas: “I
went on ahead and went home and then uh-went up to the store right beside my
house to get some cigarettes and was there about five minutes a girl come in
there and said that there was two guys out there that was wanting to kill me.
When I looked outside it was the same two guys that was out there so I just
proceeded down to my house and they confronted me at the-in front of my driveway
and I thought we were going to fight again.” On cross-examination, the claimant
was asked if he became concerned upon being told that two guys wanted to kill
him. His answer was very unclear at best. He stated, “I wasn’t really concerned
about it because they was a couple houses down and I just seen that it was the
two guys that I’d had —
there wasn’t a run-in, no words was said,
no punches was thrown.” (Transcript, page 10.) This response indicates,
especially with the claimant’s hesitation in his testimony, that he did know
that the same two men he had a confrontation with earlier were outside and had
made the threat to kill him. The claimant’s mother, Linda Wingett, also made a
recorded statement to Officer Lucas that contradicts the claimant’s testimony
that he had not had a confrontation or an earlier “run-in” with the two men.
She stated that she knew that there was a first incident as Jerry Wingett and
Michael Wingett were walking on the sidewalk. She said they bypassed the two
other men
388 REPORTS
STATE COURT OF CLAIMS [W.Va.
and that the “tallest guy had pushed Mike and then just kind of provoked him,
maybe you want a piece of me, you know, come on let’s fight.”
Clearly, these are not the actions of a prudent person. Even if the Court were to
adopt the claimant’s testimony that he did not know that the two men waiting
outside were the same two men whom he had encountered before, and that they had
not really had a real confrontation earlier on the sidewalk, a prudent person
would not have left the relative safety of the convenience store. A prudent
person would have called the police and taken some form of precautionary
measures for his own safety.
Finally, one of the most important statements made to Officer Lucas was that of
Joseph Daniel Snyder, a friend and apparent distant relative of the claimants.
Mr. Snyder stated that he witnessed Michael Wingett and “the guy with no shirt
on fighting and that Mike had him down and then a boy, the other guy come up
behind him and then hit him in the back.” Mr. Snyder also stated that “it
looked like Mike was beating the hell out of him at first, you know, I mean, he
was (sic) they started fighting and Mike just went crazy on them, you know.”
It is the law of this State that one has a duty to retreat, if such a path is
available, before resorting to physical force. In re Schunn, CV-89-1 12
(1991). The evidence presented in this case and the police report indicate
that the claimant had an opportunity to avoid this conflict and may have
engaged in mutual combat. This by no means justifies the vicious conduct of
Christopher Scott Adkins. However, it does constitute contributory misconduct
and bars claimant from any award.
The Court is constrained by the evidence to stand by its previous ruling, and
deny the claim.
Claim denied.
ORDER ISSUED NO VEMBER 28, 2001
AMERICAN NATIONAL PROPERTY & CASUALTY COMPANY
(CV-0l..l 13)
Brian Casto, Attorney at Law, for the claimant.
Joy M. Bolling, Assistant Attorney General, for respondent.
GRITT, JUDGE:
An application of the claimant, American National Property & Casualty
Company (ANPAC), for an award under the West Virginia Crime Victims
Compensation Act, was filed March 29, 2001. The report of the Claim
Investigator,
W.Va.J REPORTS
STATE COURT OF CLAIMS 389
filed April 11, 2001, recommended that no award be granted. An Order was issued
on May 25, 2001, denying the claim in response to which the
claimant’s request for hearing was filed June 14, 2001. This matter came on for
hearing on September 21, 2001, ex pane, the claimant appearing by
counsel, Brian Casto, and the State of West Virginia h aving b een represented
b y counsel, Joy M. Bo lling, Assistant Attorney General.
The claimant, an insurance company, claims to have been the victim of criminal
conduct on or about November 27, 1999, in Huntington, Cabell County. This claim
arises out of the criminal conduct of Randall Adkins and his wife, Lee Anne
Bailey Watson Adkins. The Adkinses were policyholders of an ANPAC automobile
policy. The Adkinses had their 1995 Ford Mustang GT, vehicle identification
number 47-A-01K935, insured under this policy. On November 27,1999, at
approximately 7:00 p.m., the Adkinses purportedly drove their 1995 Ford Mustang
to the parking lot of Bank One in Huntington. The Adkinses stated that they
went to a movie at a nearby theater. A t a pproximately 9:30 p .m., the
Adkinses claimed that they had returned from the movie to their car to find
that it had been “stolen by an unknown suspect”. The Huntington Police
Department responded to the A dkinses’ 911 call for assistance. The Adkinses
then filed a report with the Huntington Police Department and an Affidavit of
Theft indicating that their vehicle was stolen. According to the police report,
the perpetrator was listed as “unknown”. The Adkinses filed a claim with ANPAC
seeking compensation for their loss under the comprehensive coverage provisions
of the policy which covered theft loses. As of January 4, 2000, the vehicle had
not been recovered nor had any individual been arrested for the alleged theft.
ANPAC received an appraisal report for the vehicle which valued it at
$14,500.00. ANPAC then paid the lien holder of the vehicle, The City of
Huntington Federal Credit Union, in the amount of $10,461.64. ANPAC paid
$750.00 to Enterprise Rent A Car and $4,038. 18 to the Adkinses personally.
On or about December 5, 2000, Detective Mullins of the Huntington Police
Department informed the claimant that the motor and transmission of the
Adkinses’ vehicle had been recovered. Criminal charges were pursued against the
Adkinses. The prosecution asserted that the Adkinses and an accomplice had
engaged in fraud by faking the theft of the vehicle, stripping it, selling the
parts for cash, and pocketing the insurance money paid by ANPAC.
By Order issued May 25, 2001, this claim was denied on the basis that the
claimant, an insurance company, did not meet the definition of “victim” nor did
it suffer a “personal injury” as defined under W Va. 14-2A-3(a). Furthermore,
the Order stated that a ruling which would in effect indemnif,’ insurance
companies would be contrary to the purpose of the crime victim compensation
statute. Nothing adduced at the hearing on September 21, 2001, convinces this
Court to rule otherwise.
390 REPORTS
STATE COURT OF CLAIMS [W.Va.
It is clear that ANPAC, although an insurance company and not a “natural
person”, may be a “victim”of a crime under W. Va. Code § 61-I1A-4,West Virginia’s Victim Protection Act. In the
present claim, it is evident that ANPAC is a victim of insurance fraud and may
be entitled to restitution under W. Va § 61-1
1A-4. However, W. Va. Code §61-I IA-4 differs from W. Va. Code § 14-2A-3(k) in the defmition of who may be a “victim”.
W. Va. Code 14-2A-3(k) defines “victim”, in part, as “a person who suffers personal
injury or death” as a result of criminally injurious conduct.
This language is very specific, and the Legislature has made it clear that the
Crime Victims Compensation Act was intended to apply only to conduct which
causes or poses a substantial threat of injury or death to a “person”, meaning
the physical body and/or mind of an individual. The purpose and intent of the
Legislature in creating the Crime Victims Compensation Act is set forth under
W.Va. Code §
14-2A-2, which defmes who qualifies as a
“claimant” and specifically includes the spouse and dependents of individuals
who are victims of criminal conduct. These definitions demonstrate the intent
of the Legislature to make awards to natural persons who suffer personal injury
or death and to their dependents that suffer emotional trauma and/or economic
loss as a result of the death of the primary income earner in the family
structure. Insurance companies are not included in any of these definitions.
The only section of the statute that mentions insurance deals with t he
collateral sources which are to be deducted from any award. Since the
Legislature specifically lists insurance companies in regard to collateral
sources and does not include insurance companies as “claimants,” it is
reasonable to infer that had the Legislature intended to include insurance
companies as “claimants,” it would have done so. This language, as well as the
overall reading of the statute, demonstrates that the intent of the Legislature
was to provide compensation to natural persons who suffer injuries to their
bodies and/or minds, and to provide limited economic assistance to their
dependents when appropriate.
The Court must take notice that the claimant did not and cannot cite any crime
victims compensation statute nor any case law interpreting such statutes in the
United States which provide any award to insurance companies under any
circumstances.
This claim is a companion claim to one filed by TAPCO Underwriters (CV01-173),
which suffered an economic loss due to insurance fraud. The Court makes note of
the fact that, although neither party in these claims qualifies as a “claimant”
under the Crime Victims Compensation Act, arson as compared to fraud is a risk
which an insurance carrier can and does take into account in establishing
premiums. Insurance fraud is much more difficult, if not impossible, to
predict, to rate, and to take into account in establishing premiums.
The Court is constrained by the law and the evidence to stand by its previous
ruling; therefore, this claim must be and the same is hereby denied.
W.Va.j REPORTS
STATE COURT OF CLAIMS 391
ORDER ISSUED NOVEMBER 28, 2001
TAPCO UNDERWRITERS
(CV-0l-173)
Brian Casto, Attorney at Law, for the claimant.
Joy M. Boiling, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, TAPCO Underwriters (TAPCO), for an award under
the West Virginia Crime Victims Compensation Act, was filed May 21, 2001. The
report of the Claim Investigator, filed June 8, 2001, recommended that no award
be granted, to which the claimant timely objected. An Order was issued on July
11, 2001, confn-ming the Investigator’s recommendation, in response to which
the claimant’s request for hearing was filed August 1, 2001. This matter came on
for hearing on September 21, 2001, ex parte, the claimant appearing by counsel,
Brian Casto, and the State of West Virginia, having been represented by
counsel, Joy M. Boiling, Assistant Attorney General.
The claimant, an insurance company, claims to have been the victim of criminal
conduct on or about September 20, 2000, in Summersville, Nicholas County. This
claimarisesoutofthe crirninalconductofone ormoreunknown arsonists. T he c
laimant insured property owned by John and Brenda Johnson in Summersville,
Nicholas County. The Johnsons purchased the property at issue in 1994, and
purchased an annually renewable policy with TAPCO through the Ramsay Insurance
Agency. The building was divided into a business section called the Pioneer Jim
and an apartment section where Mr. Pritt, an employee and friend of the
Johnsons, lived. At approximately 4:47 a.m. on September 20, 2000, Mr. Pritt
was awakened by a series of loud noises. He went to investigate the source of
the noises and discovered a large fire blazing in the upper business level of
the building. The fire department responded and extinguished the fire, but the
building was a total loss.
There were two investigations involved in this loss. First, the claims
investigator for the claimant, employed Casto Investigations to perform one.
The second investigation was performed by Roger York, an Assistant State Fire
Marshal. Both independent investigations led to the same conclusion that the
cause of the fire was incendiary in nature and that the fire was intentionally
caused by an unknown person or persons. This act constitutes the crime of arson
under W.Va. Code §61 -3-5 The person or persons who committed this act
have not been apprehended as of this date.
392 REPORTS
STATE COURT OF CLAIMS [W.Va.
By Order issued July 11, 2001, this claim was denied on the basis that the
claimant was not a “victim” and that it did not suffer a “personal injury” as
defined under W.Va. Code §
14-2A-3(a). Furthermore, the Order stated
that a ruling which would, in effect, indemnify insurance companies, would be
contrary to the purpose of the crime victim compensation statute. Nothing
adduced at the hearing on September 21, 2001, convinces this Court to rule
otherwise.
It is clear that TAPCO, although not a “natural person”, may be a “victim” of a
crime under W.Va. Code §61-1 1A-4, West Virginia’s Victim Protection Act. The
West Virginia Supreme Court held in State v. Lucas that an insurance company
can be a “direct victim” of a crime and is eligible for restitution under West
Virginia’s Victim Protection Act. 201 W.Va. 271, 496 S.E.2d 221 (1997). In the
present claim, it is evident that TAPCO is the victim of the crime of arson and
may be entitled to restitution under W.Va. §61-11 A-4.
However, W.Va. Code §61-1 1A-4 differs from W.Va. Code §14-2A-3(k) in the
definition of who may be a “victim”. W.Va. Code §14-2A-3(k) defines “victim” in
part as “a person who suffers personal injury or death” as a result of
criminally injurious conduct.
This language is very specific, and the Legislature has made it clear that the
Crime Victims Compensation Act was intended to apply only to conduct which
causes or poses a substantial threat of injury or death to a “person,” meaning
the physical body and/or mind of an individual. The purpose and intent of the
Legislature in creating the Crime Victims Compensation Act is set forth under
W.Va. Code § 14-2A-2, which defmes who qualifies as a “claimant”
and specifically includes the spouse and dependents of individuals who are
victims of criminal conduct. These definitions demonstrate the intent of the
Legislature to make awards to natural persons who suffer personal injury or
death and to their dependents that suffer emotional trauma and/or economic loss
as a result of the death of the primary income earner in the family structure.
Insurance companies are not included in any of these definitions. The only
section of the statute that mentions insurance deals with the collateral
sources which a re to be deducted from any award. Since the Legislature specifically
lists insurance companies in regard to collateral sources and does not include
insurance companies as “claimants,” it is reasonable to infer that had the
Legislature intended to include insurance companies as “claimants,” it would
have done so. This language, as well as the overall reading of the statute,
demonstrates that the intent of the Legislature was to provide compensation to
natural persons who suffer injuries to their bodies and/or minds, and to
provide limited economic assistance to their dependents when appropriate.
The Court also must take notice that the claimant did not and cannot cite any
crime victim compensation statute nor any case law interpreting such statutes
in the United States which provide any award to insurance companies under any
circumstances.
W.Va.] REPORTS
STATE COURT OF CLAIMS 393
This claim is a companion claim to one filed by American National Property
& Casualty Company (CV-01-113), which suffered an economic loss due to
insurance fraud. The Court makes note of the fact that, although neither party
in these claims qualifies as a “claimant” under the Crime Victims Compensation
Act, arson as compared to fraud is a risk which an insurance carrier can and
does take into account in establishing premiums. Insurance fraud is much more
difficult, if not impossible, to predict, to rate, and to take into account in
establishing premiums.
The Court is constrained by the law and the evidence to stand by its previous
ruling; therefore, this claim must be and the same is hereby denied.
ORDER ISSUED JANUARY17, 2002
DAVID B. EVANS
(CV-00-3 16)
Claimant appeared in person.
Joy M. Boiling, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, David B. Evans, for an award under the West
Virginia Crime Victims Compensation Act, was filed August 11, 2000. The report
of the Claim Investigator, filed March 12, 2001, recommended that no award be
granted, to which the claimant timely responded. An Order was issued on April
16, 2001, u pholding the Investigator’s r ecommendation, in response to which
the claimant’s request for hearing was filed May 10, 2001. This matter came on
for hearing October 19, 2001, the claimant appearing in person, and the State
of West Virginia by counsel, Joy M. Bolling, Assistant Attorney General.
The 48-year-old claimant was attacked with a knife and struck in the head by an
assailant on March 3, 2000, in Charleston, Kanawha County. The offender, Keisha
Hayes, was charged with malicious wounding.
This Court’s initial denial of an award was based on the alleged contributory
misconduct of the claimant. The Claim Investigator’s report indicated that the
claimant and the offender were in the offender’s apartment drinking beer when
the claimant began making unwanted advances toward her. When she refused, he
physically assaulted her, grabbed the television remote control, and attempted
to leave the residence. She then attacked him.
At the hearing, the claimant testified that he and the offender were at her
residence watching TV when she stated that she wanted to sleep for an hour
(Transcript, page 6). H e told her, “Well, if you’re going to sleep, I ‘m going
to
394 REPORTS
STATE COURT OF CLAIMS [W.Va.
leave.” When he left, she chased him down the steps and accused him of taking
her remote control (Transcript, page 7).
When the claimant was “about three or four houses from the corner,” the
claimant came running up to him and struck him on the arm. She also knocked his
hat and glasses off, and that is when he saw the knife (Transcript, page 7).
The claimant stated that as he walked away, he felt wetness on his arm, took
off his coat, and saw blood. He called 911 and was taken to the hospital
(Transcript, page 8). The claimant testified that he had known the offender for
five years, and that she had never been violent toward him.
As for his damages, the claimant stated that he missed either three or five
days of work, and has incurred medical expenses (Transcript, page 15).
At the request of the Court, the Claim Investigator was directed to prepare
an economic loss analysis of the claimant’s out-of-pocket losses in this
matter. By memorandum dated December 7, 2001, the Investigator found said
losses to be in the amount of $325.49. Accordingly, an award in that sum
is hereby granted, as documented in said memorandum.
ORDER ISSUED JUNE 28, 2001
Christopher
G. Custer
(CV-O0-43)
Claimant appeared in person.
Joy M. Boiling, Assistant Attorney General, for the State of West Virginia.
STEPTOE, JUDGE:
An application of the claimant, Christopher G. Custer, for an award under the
West Virginia Crime Victims Compensation Act, was filed January 31, 2000. The
report of the Claim Investigator, filed July 6, 2000, recommended that no award
be granted, to which the claimant timely responded. An Order was issued on
August 23, 2000, upholding the Investigator’s recommendation, in response to
which the claimant’s request for hearing was filed September 25, 2000. This
matter came on for hearing May 18, 2001, the claimant appearing in person, and
the State of West Virginia by counsel, Joy M. Boiling, Assistant Attorney
General.
The 28-year-old claimant was the victim of a shooting on November 1, 1999, in
Martinsburg, Berkeley County, West Virginia. He was shot by his brother-in-law,
Joseph Hendrickson, who was indicted for malicious wounding and domestic
battery.
W.Va.J REPORTS
STATE COURT OF CLAIMS 395
This
Court’s initial decision was based upon the Claim Investigator’s finding of
contributory misconduct on the part of the claimant, who allegedly had pushed
his sister during an argument, prompting the retaliatory act by the offender.
At the hearing, it was revealed by counsel for the Fund that additional
information, which was not available at the time of the initial investigation,
had been brought forth by the investigating officer, Sergeant Macher. According
to said information, the shooting was actually a planned assault, and in the
interests of justice, the claim ought to be paid. (Transcript, p. 3.)
The Court therefore directed the Claim Investigator to prepare an economic loss
analysis to determine the claimant’s out-of-pocket losses. By memorandum dated
June 25, 2001, the Claim Investigator determined the claimant’s unreimbursed
medical expenses and lost wages to be $16,308.69.
Accordingly, an award in that sum is hereby granted, pursuant to said
memorandum.
ORDER ISSUED JUNE 30, 2001
LEWIS
F. RILEY
(CV-00-1 99)
Claimant appeared in person and by counsel, John C. Skinner and J. Alexander
Alvarez, Attorneys at Law.
Joy M. Boiling, Assistant Attorney General, for the State of West Virginia.
STEPTOE, JUDGE:
An application of the claimant, Lewis F. Riley, for an award under the West
Virginia Crime Victims Compensation Act, was filed May 30,2000. The report of
the Claim Investigator, filed January 10,2001, recommended that an award
of$4,195.85 be granted, which represents a 25% reduction of the of the total
losses. An Order was issued on February 21, 2061, denying the claim outright,
in response to which the claimant’s request for hearing was filed March 2,2001.
This matter came on for hearing May 18,2001, the claimant appearing in person
and by counsel, and the State of West Virginia by Joy M. Boiling, Assistant
Attorney General.
The 44-year-old claimant was the victim of a beating on June 26,1998, in the
West
396 REPORTS
STATE COURT OF CLAIMS [W.Va.
Ridge
Hills subdivision in Jefferson County, West Virginia. He was attacked by the
offender, Thomas Laupert, after their vehicles collided on a dirt road.
This Court’s initial decision, that no award be granted, was based on a finding
of the claimant’s contributory misconduct in the incident. However, the hearing
held on May 18,2001, produced no evidence of such contributory misconduct.
The Claim Investigator was then directed by the Court to submit an economic
loss analysis of the claimant’s total unreimbursed expenses in this case. He
did so, via memorandum dated July 20, 2001, and found that the unreimbursed m
edical e xpenses a nd w ork I oss s uffered b y t he c laimant totaled
$9,882.70. Therefore, an award in that sum is hereby granted, as set forth in
said memorandum.
ORDER ISSUED APRIL 3, 2002
ROBERT
M. HARDY, JR.
(CV-00-340)
Claimant appeared in person.
Joy M. BoIling, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Robert M. Hardy, Jr., for an award under the
West Virginia Crime Victims Compensation Act, was filed August 30, 2000. The
report of the Claim Investigator, filed March 30, 2001, recommended that no
award be granted, to which the claimant timely responded. An Order was issued
on April 27, 2001, upholding the Investigator’s recommendation, in response to
which the claimant’s request for hearing was filed May 11, 2001. This matter
came on for hearing October 19, 2001, the claimant appearing in person, and the
State of West Virginia by counsel, Joy M. BoIling, Assistant Attorney General.
The 55-year-old claimant was the victim of a beating on November 24, 1999, in
Charleston, Kanawha County, West Virginia. He had gone to a bar owned by the
offender, Mike Shepherd, to discuss a business debt owed by Mr. Shepherd. The
claimant testified that when he touched the offender on the cheek and said,
“I’ll see you in court” (Transcript, page 8.), the offender attacked him. The
claimant was struck in the back, knocked to the floor, and kicked in the face.
As a result, he lost his right eye. (Transcript, page 8.)
W.Va.J REPORTS
STATE COURT OF CLAIMS 397
This
Courts initial decision was that no award be made because of the claimanVs
contributory misconduct. However, based upon his testimony at the hearing, the
Court finds that the claimant was in fact an innocent victim of crime.
When questioned about his work loss, the claimant stated that he was a contract
employee for the Charleston Economic Community Development Corporation, as
executive director, and that his salary “is based on if funds are available
within the agency.” (Transcript, page 16.)
The
claimant stated that “I missed a few paychecks, yeah.” (Transcript, page 19.)
When asked how many days he was incapacitated due to the injury, the claimant
replied, “Probably ten.” (Transcript, page 21.)
The claimant further revealed that his medical bills were covered by his wifes
insurance under Charleston Housing, which pays 80 percent. (Transcript, page
21.) A civil suit was filed, but the claimant testified that the insurance
company settled for $225,000.00. (Transcript, page 22.)
Following the hearing of this matter, the Court received a letter from the
claimant on October 19, 2001, in which he explained the distribution of the
$225,000.00 settlement. Payment of attorney fees and reimbursement to Trustmark
Insurance totaled $92,500.00, leaving a balance of $132,500.00 to the claimant.
These funds were spent on various items, including: a certificate of deposit,
investment securities, a church donation, vacation costs, a dump truck, home
repairs, medical bills, credit card debt, and gifts to family members and
others.
The Court received another letter from the claimant on February 19, 2002,
asserting outstanding debts of $22,114.41 for which he seeks reimbursement:
-$17,468.59 (Trustmark Insurance’s lien on the settlement proceeds)
- $ 3,404.91 (owed to
Retina Consultants; turned over for collection)
- $1,240.91 (owed
to Don’s Disposal Service, a business expense)
The Court w ill first consider the loss of the claimant’s right eye. Clearly,
this is a catastrophic injury for which compensation ought to be made. However,
awards for such injuries were not compensable for crimes occurring prior to
July 1, 2001. W.Va. Code §14-2A-14(g). During the claimant’s period of
incapacitation, the Court will consider his lost income. Based on the Claim
Investigator’s memorandum of April 1, 2002, this lost income for two pay
periods totals $1,280.00.
As for the outstanding debts of $22,114.41, the Court must subtract the
business debt of $1,240.91 which is not an allowable expense, and finds that
the remaining $20,873.50 is not in excess of the portion of the settlement
398 REPORTS
STATE COURT OF CLAIMS [W.Va.
proceeds
received by the claimant. Therefore, said debts must be borne by the claimant.
Based on the foregoing, the Court hereby grants an award of $1,280.00 as set
forth in the Claim Investigator’s memorandum.
ORDER ISSUED FEBRUARY 21, 2002
MILDRED LENNA BELT
(CV-99-070)
Christopher S. Moorehead, Attorney at Law, for the claimant.
Joy M. Boiling, Assistant Attorney General, for the State of West Virginia.
WEBB, JUDGE:
An application of the claimant, Mildred L. Belt, for an award under the West
Virginia Crime Victims Compensation Act, was filed February 17, 1999. The
report of the Claim Investigator, filed November 30, 1999, recommended that no
award be granted, to which the claimant timely objected. An Order was issued on
January 20, 2000, confirming the Investigator’s recommendation, in response to
which the claimant’s request for hearing was filed February 22, 2000. This
matter came on for hearing September 12, 2001, the claimant appearing in person
and by counsel, Christopher S. Moorehead, and the State of West Virginia by
counsel, Joy M. Bolling, Assistant Attorney General.
On or about February 2, 1999, the claimant’s 23-year-old son, Arthur Belt, was
fatally stabbed by Roy Garrison in Cowen, Webster County. The offender was
indicted for murder and is currently serving a prison sentence.
The initial denial of an award was based on the alleged contributory misconduct
of the victim, Arthur Belt. Based on the report of the West Virginia State
Police, the victim and others voluntarily pursued the offender Roy Garrison
instead of reporting the crime to law enforcement officials.
Sergeant Robert Lee Stickley of the West Virginia State Police testified at the
hearing of this matter. Sergeant Stickley investigated the murder of Mr. Belt
which occurred on the night of February 2, 1999 (Transcript, page 12). Sergeant
Stickley was informed of the crime by the Summersville State Police Detachment.
Upon investigation, Sergeant Stickley determined that the events leading up to
this tragic crime involved the theft of Kenneth Naylor’ s vehicle. Mr. Naylor
was a friend or acquaintance of Mr. Belt (Transcript, page 13). Roy Garrison
had stolen Kenneth Naylor’ s car a few days prior to this incident. Kenneth
Naylor, Roy Naylor, Steve Stevens, and Arthur Belt traveled together to Cowen
in Webster County for the
W.Va.] REPORTS
STATE COURT OF CLAIMS 399
purpose of finding the stolen vehicle (Transcript, page 13). According to
Sergeant Stickley, Mr. Belt and the three individuals in the vehicle with him
located Mr. Garrison in Cowen on the night in question. Upon seeing them, Mr.
Garrison immediately ran from them (Transcript, page 13). At that time, Kenneth
Naylor and Mr. Belt got out of the vehicle and pursed Mr. Garrison. However,
Mr. Belt was the only individual who was physically able to catch up with Mr.
Garrison. He pursued him through a field. Unfortunately, it was at this time
that Mr. Garrison turned and stabbed Arthur Belt to death (Transcript, page
14).
The investigation revealed no witnesses who saw the altercation. It occurred at
night in a dark field, making it difficult, if not impossible, for witnesses to
see anything. One witness did see Mr. Belt chase Mr. Garrison into the field,
and subsequently heard someone scream (Transcript, page 14). Sergeant Stickley
testified that he did not believe that Mr. Belt and Mr. Garrison knew each
other. He also testified that it was possible that Mr. Garrison was running
because he feared for his life or personal safety. He also stated that the
stolen vehicle had been reported to law enforcement prior to this incident, but
he could not explain why Mr. Belt and the individuals with him did not wait for
the police to investigate the matter. Based on his seventeen years of
experience as a police officer, Sergeant Stickley did not consider it prudent
on the part of the victim Arthur Belt to chase a stranger suspected of stealing
a vehicle into a field at night (Transcript, page 24).
There is no doubt that Arthur Belt was a victim of criminal conduct, and his
murder is indeed a tragedy. However, this Court is constrained by the evidence
to adopt the Claim Investigator’s recommendation to deny this claim because the
claimant was guilty of contributory misconduct.
WVa. Code §14-2A-3(l) defmes “Contributory misconduct” as “any conduct of the
claimant, or of the victim through whom the claimant claims an award, that is
unlawful or intentionally tortious and that, without regard to the conduct’s
proximity in time or space to the criminally injurious conduct has causal
relationship to the criminally injurious conduct that is the basis of the claim
and shall also include the voluntary intoxication of the claimant, either by
the consumption of alcohol or the use of any controlled substance when the
intoxication has a causal connection or relationship to the injury sustained.”
This Court has consistently held that an individual who pursues another
regarding a matter that should be handled by the police places himself in
harm’s way, and such conduct constitutes contributory misconduct. In re Jarrell, CVR-82-4
(1984); In re Woolley, CVR-82-l8 (1983). This Court does not wish to encourage
individuals to take law enforcement responsibilities into their own hands. Such
actions are risky and invite violence which can lead to tragic outcomes such as
the one at issue. The evidence in this claim demonstrates that Arthur Belt and
three other individuals w ere s earching for Mr. Garrison w ho t hey h ad r
eason t o b elieve had
400 REPORTS STATE
COURT OF CLAIMS [W.Va.
stolen Kenneth Naylor’s car. Instead of going after Mr. Garrison on their own,
Mr. Naylor and Mr. Belt should have waited for the police to apprehend him.
Contributory misconduct also includes intentionally tortious conduct on the
part of a victim where the intentional tort has a causal relationship to the
criminally injurious conduct at issue. An assault is an intentional tort
defined as an intentional act which places another in reasonable apprehension
of imminent harmful or offensive contact. W. PAGE KEE TON ETAL, PROSSER AND KEETON ON THE LAWOF TORTS §10, at 43& 44( 5thed. 1984). T heevidenceadducedatthe hearing establishes that Mr. Belt’s
pursuit of Mr. Garrison, given the circumstances, constituted an assault.
Certainly, Mr. Garrison’s actions were not justifiable by any means. However,
Mr. Garrison was approached at night by a car full of individuals, one of whose
vehicle he had stolen. When two individuals got out of this vehicle to chase
him, it was reasonable for him to be in fear of imminent harmful or offensive
contact from his pursuers.
This claim was initially denied on the basis of contributory misconduct on the
part of the claimant. Nothing adduced at the hearing convinces this Court
otherwise.
The Court is constrained by the evidence to stand by its previous ruling and
deny the claim.
ORDER ISSUED MARCH20, 2002
BARBARA J. FLETCHER
(CV-00-286)
Claimant appeared in person.
Joy M. Boiling, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Barbara J. Fletcher, for an award under the
West Virginia Crime Victims Compensation Act, was filed July 21, 2000. The
report of the Claim Investigator, filed September 5, 2000,
recommended that no award be granted, to which the claimant timely objected. An
Order was issued on October 18, 2000, confirming the Investigator’s
recommendation, in response to which the claimants request for hearing was
filed November 14, 2000. This matter came on for hearing January 17, 2002, the
claimant appearing in person, and the State of West Virginia by counsel, Joy M.
Bolling, Assistant Attorney General.
The claimant’s 36-year-old husband, Bruce Fletcher, was struck by an automobile
driven by Keith Jameson on Avenue in Charleston, Kanawha County,
W.Va.1 REPORTS
STATE COURT OF CLAIMS 401
on March 8, 2000. The claimant testified that her husband was in a coma for
weeks. (Transcript, page 8.) He spent two months in the hospital, and was
confined to a wheelchair for over a year. He endured many surgeries, including
three eye procedures to correct his double vision. (Transcript, page 8.) The
claimant stated that her husband will never be able to go back to work.
According to the claimant, they received insurance proceeds of $100,000.00 from
State Farm. After attorney fees, their actual payment was
$66,000.00. (Transcript, page 11.) The money was spent on dental work, leg
braces, and home care. The claimant ultimately quit her job to stay home with
her husband for five months. (Transcript, page 13.)
Bruce Fletcher testified that, on the night in question, he was crossing the
road, and when he got to the median, “that’s where I was hit.” (Transcript,
page 16.) He stated that he had been drinking that evening, but could not
remember where. Upon cross-examination, Mr. Fletcher indicated that hi s memory
loss was due to brain damage. (Transcript, page 18.) When asked how he could be
sure that he was hit while on the median, he replied, “That’s the way the
report was.” (Transcript, page 18.) Counsel for the Fund stated, “The report
reflects that you were actually in the road,” and when she asked Mr. Fletcher
if he was 100 percent sure he was on the median, he replied, “No, ma’am. I’m
not 100 percent sure.” (Transcript, page 19.)
The fmal witness to testify was Keith Jameson, the driver of the automobile.
Mr. Jameson stated that he had consumed two beers that night at a friend’s
house. (Transcript, page 25.) He remembered driving down the road and “the next thing
I know there was a big boom.” (Transcript, page 21.) Mr. Jameson admitted
speeding away for fear of being arrested for DUI. He further stated that he
never was on the median. (Transcript, page 22.)
Upon cross-examination, Mr. Jameson testified that he had his headlights on,
and that he remembered a black Ford pickup truck parked on the side of the
street where Mr. Fletcher was coming from. (Transcript, page 26.) He stated
that when he got to the front of the truck, “that’s when the big boom happened.
‘ (Transcript, page
26.)
This claim was initially denied on the basis of contributory misconduct on the
part of the claimant. Nothing adduced at the hearing convinces this Court otherwise.
There was conflicting testimony with regard to exactly where the claimant was
struck, whether in the road or on the median; but the hospital report showed
the claimant’s serum alcohol level to be 283, which converts to a .24 blood
alcohol level, over twice the legal limit (Exhibit 3, page 5). The
claimant’s intoxicated state was causally related to his subsequent injury.
The Court is constrained by the evidence to stand by its previous ruling, and
deny the claim.
402
REPORTS STATE COURT OF CLAIMS [W.Va.
West Virginia Crime Victims Compensation Fund
Reference to Opinions
American National Property & Casualty Company (CV-0I-1 13)
Claimant could site any crime victims statutes or any case law interpreting
such statutes in the United States which provide any awards to insurance
companies under any circumstances, because, the Court stated that the intent of
the Legislature in creating such statute was to provide compensation to natural
persons who suffer injuries to their bodies andlor minds, and to provide
limited economic assistance to their dependents when appropriate; therefore, a
claim for the value of a vehicle which was paid to insured who filed a
fraudulent claim was denied p. 388
Belt, Mildred Lenna (CV-99-070)
A claim in which claimant’s decedent was stabbed to death during the chase of
an offender car thief, the Court denied the claim because the Court has
consistently that an individual who pursues another regarding a matter that
should be handled by the police, places himself in harm’s way, and such conduct
constitutes contributor
misconduct p. 398
Custer, Christopher G. (CV-0O-43)
The Court made an award to the claimant where it was established after the
issuance of the Finding of Fact and Recommendation of the claim investigator that
the claimant was the victim of a planned assault p. 394
Evans, David B. (CV-00-3 16)
Claimant was attacked and stabbed by an assailant whom he had been visiting in
her home. The Court determined that he was an innocent victim of a crime
and made an award p. 393
Fletcher, Barbara J. (CV-0O-286)
Claimant, a victim of a hit and run, was struck by an automobile and received
severe injuries but the evidence established that he was in the middle of the
highway so the Court held that he was guilty of contributory misconduct and
denied
the claim p. 400
Hardy Robert M. Jr. (CV-00-340)
Where the claimant, a victim of a beating during which he lost an eye, was
determined to be an innocent victim of a crime, the award was based by upon
that amount of out-of-pocket expenses he incurred after consideration of a
monetary settlement he had received from a civil suit against the offender p.
396
W.Va.J REPORTS
STATE COURT OF CLAIMS 403
Lewis, Riley F. (CV-00- 199)
Where the evidence at the hearing established that the claimant was an innocent
victim of a beating after an automobile accident when he was attacked by the
driver of the other vehicle, the Court made an award p. 395
Pitzer, Leroy J. (CV-99-230)
A claim was denied where the evidence established that the claimant’s decedent
was guilty of contributory misconduct when he was run over by a vehicle as he
walked in the middle of a highway late at night, and he was not of the legal
age to consume alcohol which he had consumed prior to the incident p. 382
TAPCO Underwriters (CV-0 1-173)
A claim by an insurance carrier alleging it was the victim of a crime within
the Crime Victim Compensation Fund statute was denied on the basis that the
claimant did not suffer a “personal injury” as defined in the statute and to
indemnify insurance companies would be contrary to the purpose of the statute.
Claimant insurance carrier had paid a claim for their insureds who lost a
building due to arson. p.391 Teet, Mary M. (CV-00-333)
When the events leading up to a crime are too vague to determine whether or not
the victim played a role, this Court has declined to approve an award. Thus,
the claim based upon the death of the victim was denied as it appeared to be
linked to
illegal drug activity p. 383
Wingett, Michael N. (CV-98-3 13)
It is the law of this State the one has a duty to retreat, if such a path is
available before resorting to physical force. Since the claimant had an
opportunity to avoid the conflict during which he was stabbed by an offender on
the street, the Court
denied the claim p. 384