STATE OF WEST VIRGINIA
Report of the Court of Claims 2003-2005
Volume 25
STATE OF WEST
VIRGINIA REPORT OF THE COURT OF CLAIMS
For the Period from July 1,2003 to June 30, 2005
by
CHERYLE M. HALL
CLERK
Volume XXV
(Published by authority W.Va. Code § 14-2-25)
W.Va.] CONTENTS
III
TABLE OF CONTENTS
Letter of transmittal Vi
Opinions of the Court VIX
Personnel of the Court IV
Former judges V
References -
Court of Claims 238
References -
Crime Victims Compensation Fund 322
Table of Cases Reported -
Court of Claims X
Table of Cases Reported -
Crime Victims Compensation Fund 269
Terms of Court VII
IV PERSONNEL
OF THE STATE COURT OF CLAIMS [W.Va
PERSONNEL
OF THE
STATE COURT OF CLAIMS
HONORABLE DAVID M. BAKER Presiding Judge
HONORABLE BENJAMIN HAYS WEBB, II Judge
HONORABLE FRANKLiN L. GRITT, JR Judge
HONORABLE ROBERT B. SAYRE Interim Judge
HONORABLE GEORGE F. FORDHAM Judge
CHERYLE M. HALL Clerk
DARRELL V. MCGRAW, JR Attorney General
W.Va.J FORMER JUDGES
V
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
December31, 1982
HONORABLE DANIEL A. RULEY, JR July 1, 1976 to
February 28, 1983
HONORABLE GEORGE S. WALLACE, JR February 2, 1976 to
June 30, 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
HONORABLE ROBERT M. STEPTOE July 1, 1989 to
June 30, 2001
HONORABLE BENJAMIN HAYS WEBB, 11 March
17, 1993 to
March 17, 2004
INTERIM JUDGES
HONORABLE GEORGE F. FORDHAM April 7, 2004 to
May 30, 2005
VI 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, two thousand three to June thirty, two thousand five.
Respectfully submitted,
CHERYLE M. HALL,
Clerk
W.Va.] TERMS OF
COURT VII
TERMS OF COURT
Two regular terms of court are provided for
annually the second Monday of April and September.
OPINIONS
Court of Claims
X TABLE OF CASES
REPORTED [W.Va.
TABLE OF CASES REPORTED
ADAMS, AMANDA VS. DiViSION OF
HiGHWAYS (CC-03-100) 64 ADKINS, THOMAS A. and THOMAS A. ADKINS, II. VS.
DIVISION OF
HIGHWAYS (CC-03-265) 175
ALLTEL VS. STATE FiRE MARSHAL (CC-03-427) 57
AMOS, ROGER VS. DiVISION OF HiGHWAYS (CC-04-146) 189
ANDREWS, ELLEN F. VS. DIVISION OF HIGHWAYS (CC-03-1 53) 118
ANTILL, LINNIE M. VS. DIVISiON OF HIGHWAYS (CC-03.-156) 169
ASH, WENDELL K. VS. DIVISION OF CORRECTIONS (CC-03-41 6) 141
BEARD, SANDRA SUE VS. DIVISION OF HIGHWAYS (CC-03-425) 46
BEDDOW, ALAN and STEPHANIE BEDDOW VS. DIVISION OF
HIGHWAYS (CG-03-403) 112
BELL, AMANDA VS. DIVISION OF HIGHWAYS (CC-01-375) 41
BELLAMY, PATRICiA SUE VS. DIVISiON OF HIGHWAYS (CC-02-506) .. 127
BERRY, STACY J. VS. DIVISION OF HIGHWAYS (CC-03-299) 100
BLAIR, NANCY VS. Dl VISION OF HIGHWAYS (CC-03-286) 179
BLAND, MICHAEL J. VS. DIVISION OF HIGHWAYS (CC-04.-065) 186
BOBO, DELORSE J. VS. DIVISiON OF HIGHWAYS (CC-02-351) 122
BOOTH, ESTHER M. and STEPHEN P. RICH VS. DIViSION OF
HIGHWAYS (CC-03-047) 107
BOXLEY, KEVIN VS. DIVISION OF CORRECTIONS (CC-02-514) 145
BROWN, JAMES, ANGELA BROWN, CHRISTINE BROWN, and JAMES
BROWN and ANGELA BROWN AS PARENTS AND NATURAL
GUARDIANS OF TASHA BROWN, AN INFANT, VS. DiVISION
OF HIGHWAYS (CC-01-213) 31
BRYANT, DANIEL and DEBRA BRYANT VS. DIVISION OF HIGHWAYS
(CC-04-023) 235
W.Va.] TABLE OF
CASES REPORTED XI
BUNTING, LENORA J. VS. DIVISION OF HIGHWAYS (CC-03-055) 137
BURDETTE, KEITH VS. DIVISION OF CORRECTIONS (CC-02-484) 128
CAMPBELL, STEVE VS. DIVISION OF HIGHWAYS (CC-04-304) 192
CARNELL, ANNA BELL VS. DIVISION OF HIGHWAYS (CC—03-333) 130
CHAPMAN, JAMES H. VS. DIVISION OF HIGHWAYS (CC-02-227) 5
CHARLESTON AREA MEDICAL CENTER VS. DIVISION OF
CORRECTIONS (CC-03-463) 162
CHARLESTON AREA MEDICAL CENTER, INC. VS. DIVISiON OF
CORRECTIONS (CC-03-449) 59
CHARLESTON AREA MEDICAL CENTER, INC. VS. DIVISION OF
CORRECTIONS (CC-03-439) 58
CHARLESTON PSYCHIATRIC GROUP, INC. VS. DIVISION OF
CORRECTIONS (CC-.03-406) 27
CITY OF ELKINS VS. DIVISION OF CORRECTIONS (CC-03-396) 27
COLLINS, LORI M. VS. DIVISION OF HIGHWAYS (CC-03-102) 172
COOK, JESSE E. and NORMA C. COOK VS. DIVISION OF HTGHWAYS
(CC-02-258) 12
COOK, DENNIS L. and WILMA COOK VS. DIVISION OF HIGHWAYS
(CC-01-381) 1
COPLEY, HOWARD AS ADMINISTRATOR OF THE ESTATE OF TERESA COPLEY, DECEASED,
HOWARD COPLEY, INDIVIDUALLY, CURTIS H. COPLEY VS. DiVISION OF HIGHWAYS
(CC-01-189) .
140
CORRECTIONAL MEDICAL SERVICES VS. DIVISION OF
CORRECTIONS (CC-03-553) 114
CORRIVEAU, MICHAEL VS. DIVISION OF CORRECTIONS (CC-02-006).. 146
CRITCHFIELD, BRANDON VS. DIVISiON OF HiGHWAYS (CC-02-397).. 102
CUSTER, JOHN A. VS. DIVISION OF HIGHWAYS (CC-04-320) 197
DABIRI, ALT R. VS. DIVISiON OF HiGHWAYS (CC-03-094) 59
DAY, DEBRA SUE VS. DIVISION OF HIGHWAYS (CC-03-.209) 174
DEPTA, ANDREA AN INFANT THROUGH HER FATHER AND NEXT
Xli TABLE OF
CASES REPORTED [W.Va.
FRIEND, GARY DEPTA VS. DIVISiON OF HiGHWAYS
(CC-02-163) 219
DEPTO, JOHN and MARY ANN DEPTO VS. DIVISION OF HIGHWAYS
(CC-02-056) 85
DEPTO, JOHN and MARY ANN DEPTO VS. DIVISION OF HIGHWAYS
(CC-02-056) 88
DERRINGER, CHARLES VS. DIVISION OF HIGHWAYS (CC-02-387) 157
DiLLON, MiCHAEL T. and CHASTITY DILLON VS. D1V1S1ON OF
HIGHWAYS (CC-04-424) 230
DILLS, MARK 0. VS. DiVISION OF HiGHWAYS (CC.-03-023) 74
DOMENICO, LAURENCE W. VS. DIVISION OF HIGHWAYS (CC-03-201).. 54
DOTY, ROBiN VS. DIViSION OF HIGHWAYS (CC-04-101) 203
DRUSCHEL, KiRBY VS. HIGHER EDUCATION POLICY COMMISSION
(CC-04-130) 151
DUNHAM, SONYA VS. DIVISION OF HIGHWAYS (CC-01-390) 26
DUNHAM, TIMOTHY, LORETTA DUNHAM, HiS WIFE AND JOEY
SMITH VS. DIVISION OF HIGHWAYS (CC-02-470) 218
EACHES, SUSAN E. VS. DIVISION OF HIGHWAYS (CC-03-152) 180
ERSKINE, KIMBERLY L. VS. DIVISION OF HIGHWAYS (CC-03-057) 149
EWiNG, BOBBY J. VS. DIVISiON OF HIGHWAYS (CC-00-437) 133
FEDERAL BUREAU OF PRISONS VS. DIVISION OF CORRECTIONS
(CC-03-484) 57
FIELDS, FORREST G. VS. DIVISION OF HIGHWAYS (CC-03-338) 233
FRAZIER, JR., GLENN 0. and SONDRA FRAZIER VS. DIViSION OF
HIGHWAYS (CC-02-493) 25
FRIEND, DAVID C. VS. DIVISION OF HIGHWAYS (CC-02-425) 66
FRIENDS OF BARBARA FLEISCHAUR and COMMITTEE TO ELECT BASTRESS FOR JUSTICE VS.
DIVISION OF HiGHWAYS
(CC-02-515) 114
GLASS, RICHARD H. VS. DIVISION OF HIGHWAYS (CC- 02-3 10) 123
W.Va.] TABLE OF
CASES REPORTED XIII
GOINS, ELMER R. VS. DIVISiON OF HIGHWAYS (CC-02-164) 120
GOLDEN, FLOSSIE VS. DIVISION OF HIGHWAYS (CC-04-228) 204
GORBEY, KALA ANN VS. Di VISION OF HIGHWAYS (CC-04-175) 190
GRANEY, JESSICA S. VS. DIVISION OF HIGHWAYS (CC-03--033) 158
GRANT, VERNON W. VS. DIVISION OF HIGHWAYS (CC-03-099) 42
GREAVER, BRIDGETTE D. VS. DIVISION OF HIGHWAYS (CC-02-417) ... 62
GROVESS, JAMES L. VS. DIVISION OF HIGHWAYS (CC—02-391) 22
GUNNO, KATHY L. VS. DIVISION OF HIGHWAYS (CC-03-077) 160
HAYNES, KIM VS. DIVISION OF HIGHWAYS (CC-03-049) 150
H1CKS, ALAN M. VS. DiVISION OF HIGHWAYS (CC-03-137) 81
HIGGINBOTHAM, WILLIAM F. and ALICE HIGGINBOTHAM VS.
DIVISION OF HIGHWAYS (CC-02-261) 10
HISAM, GARY LEE and DEBORAH K. HISAM VS. DIVISION OF
HIGHWAYS (CC-02-392) 47
HITE, RICHARD D. VS. DIVISION OF HIGHWAYS (CC-02-329) 3
HOLIZETT, KATHLEEN VS. DIVISION OF HIGHWAYS (CC-03-303) 178
HUDNALL, BOBBY WAYNE and MAUREEN HUDNALL VS. DIVISION
OF HIGHWAYS (CC-02-350) 92
HUNLEY, KAREN S. VS. DIVISION OF HIGHWAYS (CC-03-274) 135
JAN-CARE AMBULANCE VS. DIVISION OF CORRECTIONS (CC-03-529).. 99
JONES II, EDWARD C. VS. DIVISION OF HIGHWAYS (CC-02-378) 110
JORDAN, GREGORY A. VS. DIVISION OF HIGHWAYS (CC-03-296) 207
KANAWI-IA NEPHROLOGY, INC. VS. DIVISION OF CORRECTIONS
(CC-03-355) 29
KENNEDY, LANDON A. VS. DIVISION OF HIGHWAYS (CC-04-292) .... 231
KEPLINGER, STEVE VS. DIVISION OF HIGHWAYS (CC-04-068) 196
KILMER, CHARLES R. VS. DIVISION OF CORRECTIONS (CC-03-285) ... 142
XIV TABLE OF
CASES REPORTED [W.Va.
KING, TAMMY L. VS. DIVISION OF HIGHWAYS (CC-02-183) 8
KINTY, JERRY LOUISE VS. DIVISION OF HIGHWAYS (CC-03-056) 104
LAFFERTY, JEFFREY VS. D1V1S1ON OF HIGHWAYS (CC-03-071) 215
MANONI, JOSEPH G. VS. DIVISION OF
HIGHWAYS (CC-03-224) 207
MANPOWER VS. DEPARTMENT OF EDUCATION (CC-03-351) 30
MARTIN, DAVID R. VS. DiVISION OF HIGHWAYS (CC—02-266) 69
MARVIN CHAPEL CHURCH VS. DIVISION OF HIGHWAYS (CC-02.-507) .. 89
MCBRIDE, HAZEL VS. DIViSION OF HIGHWAYS (CC- 02-216) 134
MCCOY, RONALD S. VS. DIVISION OF HIGHWAYS (CC-03--239) 176
MCJUNKIN, BRITTAIN, MD, and JUDITH MCJUNKIN VS. DIV1S1ON OF
HIGHWAYS (CC-02-424) 67
MCNEELY, JAMES VS. DIVISION OF HIGHWAYS (CC-02-260) 4
MCNEMAR, JUDITH A. VS. DIVISION OF HIGHWAYS (CC-03-557) 183
MERCER, TAMMY LYNN VS. DIViSION OF HIGHWAYS (CC-04-298) ... 168
MONTGOMERY GENERAL HOSPITAL VS. DIVISION OF CORRECTIONS
(CC-03-288) 23
MONTGOMERY GENERAL HOSPITAL VS. DIVISION OF CORRECTIONS
(CC-03-243) 15
MOWERY, TOMMY C. VS. DIVISION OF HIGHWAYS (CC-98-208) 152
MULLINS, KATHY and FRJLNK MULLINS VS. DIV1SION OF HIGHWAYS
(CC-03-066) 159
MURPHY, BRENDA AS ADMINISTRATIIJX OF THE ESTATE OF SCOTT
CHARLTON VS. DIVISION OF HIGHWAYS (CC-01-188) 211
MYERS, WILLIAM A., II, DMD VS. DIVISION OF CORRECTIONS
(CC-03-290) 24
NELSON, JAMES E. and CHARLEEN A. NELSON VS. DIVISION OF
HIGHWAYS (CC-03-015) 44
NICHOLS, JEFFREY A. VS. REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY (CC-04-026) 151
W.Va.] TABLE OF
CASES REPORTED XV
NORMAN, CHRISTOPHER and SUSAN NORMAN VS. DIVISION OF
HIGHWAYS (CC-04-131) 205
OSTROSKY, RONALD W. VS. DIVISION OF HIGHWAYS (CC-04-106).... 201
PECK, JANET M. VS. DIVISION OF HIGHWAYS (CC-03-168) 71
PERRINE, MARTHA R. VS. DIVISION OF HIGHWAYS (CC-03-255) 78
PEVAVAR, DAVID GRANT VS. DIVISION OF HIGHWAYS (CC-04-129).. 195
PIERSON, BECKY L. VS. DIVISION OF HIGHWAYS (CC-03-105) 161
PITTS, CHRISTOPHER VS. DIVISION OF HIGHWAYS (CC-00-413) 96
POCAHONTAS MEMORIAL HOSPITAL VS. DIVISiON OF CORRECTIONS
(CC-02-486) 28
POMEROY IT SOLUTIONS, INC. VS. DEPARTMENT OF HEALTH AND
HUMAN RESOURCES (CC-03-162) 14
PRIMECARE MEDICAL, INC. VS. DIVISION OF JUVENILE SERVICES
(CC-03-357) 30
REESE, WALLACE and KATHERINE R. REESE VS. DIVISION OF
HIGHWAYS (CC-03-1 16) 52
RENNER, SCOTT ALAN,VS. DIVISION OF MOTOR VEHICLES
(CC-03-090) 14
ROBAYO, GONZALO VS.,DIVISION,OF HIGHWAYS (CC-02-330) 20
ROSN1CK, RUDY VS. DIVISiON OF HIGHWAYS (CC—04-238) 202
RUNYON, DOUGLAS VS. DIVISION OF HIGHWAYS (CC02-450) 97
SALLADE, JACQUES L. VS. DIVISION OF HIGHWAYS (CC-03-109) 171
SANDERS, CARL VS.,PUBLIC SERVICE COMMiSSION (CC-03-426) 56
SANTOWASSO, ARTHUR W. VS. DIVISION OF HIGHWAYS (CC-04-217). 182
SEARS, RUTH VS. DIVISiON OF HIGHWAYS (CC-03-514) 216
SHAFFER, MELISSA VS. DIVISION OF HIGHWAYS (CC-00.490) 37
SHAFFER, SANFORD and GLORIA J. SHAFFER VS. DIVISION OF
HIGHWAYS (CC-03-021) 24
SHiELDS, PAMELLA and DAVID SHIELDS VS. DIVISION OF
XVI TABLE OF
CASES REPORTED [W.Va.
HiGHWAYS (CC-04-089) 225
SHREVE, BETTY VS. DIVISION OF HIGHWAYS (CC-02-457) 48
SMITH, ROBERT D., JR., VS. REGIONAL JAIL AND CORRECTiONAL
FACILITY AUTHORITY (CC-04-5 19) 210
SNODERLY, ROBERT G. VS. DIViSION OF HIGHWAYS (CC-03-065) 82 SOMMERVILLE, WANITA
L. VS. DIVISION OF HIGHWAYS (CC-04-140). 173 SPROUSE, STEPHANIE P. VS. REGiONAL
JAiL AND CORRECTIONAL
FACILITY AUTHORITY (CC-04-229) 165
STANDIFORD, JR., RALPH E. VS. DiVISION
OF HIGHWAYS
(CC-03-250) 209
STEPHENS, GEORGE C. and BETTY STEPHENS VS. DiVISION OF
HiGHWAYS (CC-03-174) 50
STRAIGHT, JOANN G. VS. DIVISION OF HIGHWAYS (CC-04-295) 184
SWEETSER, WENDELL VS. PUBLIC SERVICE COMMISSION
(CC-03-543) 100
THE HEART CENTER VS. DIViSION OF CORRECTIONS (CC-03-349) 28
THOMAS, DAWN M. VS. DIVISION OF HIGHWAYS (CC.-04-161) 187
THOMASELLI, MARY E. VS. DiVISION OF HIGHWAYS (CC-04-216) .... 198
THOMPSON, ELVIN E. VS. DIVISION OF CORRECTIONS (CC-01-340) ... 124 TOLER, RANDALL W. and DONNA M. TOLER VS. DIVISION
OF
HIGHWAYS (CC-03-017) 139
TOMBLIN, ROBERT K. and LiNDA S. TOMBLIN VS. DIVISION OF
HIGHWAYS (CC-03-.181) 193
TONCRAY, WiLLIAM J. VS. DIVISION OF CORRECTiONS (CC-03-044) ... 99 TRYGAR, AMANDA VS.,HIGHER,EDUCATION,POLICY
COMMISSION
(CC-3-332) 23
UNIVERSITY HEALTH ASSOCIATES VS. DIVISION OF CORRECTIONS
(CC-03-337) 29
VANCE, MICKEY LEE VS. DIVISION OF HIGHWAYS (CC-03-32i) 32
VERIZON WEST VIRGINIA, INC. VS. DEPARTMENT OF
W.Va.] TABLE OF
CASES REPORTED XVII
ADMINISTRATION (CC-03-503) 58
VIARS, NED cl/b/a CASS DTORAMA, INC. VS. DIVISION OF NATURAL
RESOURCES (CC-03-189) 226
WALKER, THOMAS H. and HEATHER WALKER VS. DIVISION OF
HIGHWAYS (CC-03-254) 69
WALTERS, HAROLD and LORRAINE WALTERS VS. DIVISION OF
HIGHWAYS (CC-02-375) 191
WATTS, PEARL VS. DIVISION OF HIGHWAYS (CC-01-187) 16
WAYNE COUNTY COMMISSION VS. DIVISION OF CORRECTIONS
(CC-03-428) 84
WEBMEYER, SARAH VS. HIGHER EDUCATION POLICY COMMISSION
(CC-04-213) 165
WEI, LIANG VS. HIGHER EDUCATION POLICY COMMISSION
(Cc-03-401) 106
WEST, KEVIN 0. and KATRINA L. WEST VS. DIVISiON OF HIGHWAYS
(CC-02-303) 76
WEST VIRGINIA ASSOCiATION OF REHABILITATION FACILITIES VS.
DIVISION OF REHABILITATION SERVICES (CC-03-302) 13
WHITT, CHERYL VS. DIVISION OF HIGHWAYS (CC-03-315) 176
WILSON, PAUL V. and KIM LAREW VS. DIVISION OF HIGHWAYS
(CC-00-432) 166
WILSON, GARY L. AND DIANE L. WILSON VS. DIVISION OF
HIGHWAYS (CC-03-I72) 41
WRIGHT, JEAN L. VS. DIVISION OF HIGHWAYS (CC-04-21 1) 200
YANCHAK, MARGARET and GEORGE YANCHAK VS. DIVISION OF
HIGHWAYS (CC-03-506) 188
ZIRK, JOE VS. STATE RAIL AUTHORITY (CC—03-419) 56
XVIII REPORTS STATE COURT OF CLAIMS [W.Va.
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 JULY 17,2003
DENNIS L. COOK and WILMA COOK
VS.
DIVISION OF HIGHWAYS
(CC-01-381)
Claimants appeared pro Se.
Andrew F. Tan- and Xueyan Zhang, Attorneys at Law, for respondent.
BAKER, JUDGE:
Claimants brought this action for personal injuries and damage to their vehicle
which occurred when claimant Wilma Cook was operating their vehicle on State
Route 85 near Quinland, Boone County, and the vehicle struck a hole on the edge
of the road causing claimant Wilma Cook to lose control ofthe vehicle whereupon
it crossed the road and struck the guardrail. Respondent was responsible at all
times herein for the maintenance of State Route 85. The Court is of the opinion
to deny this claim for the reasons set forth more fully below.
The incident giving rise to this claim occurred on September 28, 2001, at
approximately 10:30 a.m. Claimant Wilma Cook was driving a 1991 LTD Crown
Victoria on State Route 85. She was
traveling from her home in Gordon to Madison, in Boone County. The weather was
sunny and the roads were dry. There was very little traffic on the road.
According to Mrs. Cook, she recalls only one car near her at the time ofthis
incident and that was the vehicle behind her. She testified that she could not
recall passing any oncoming vehicles at the location of this incident, but she
does not believe she did. At the location of this incident, State Route 85 is a
two-lane, blacktop highway with double yellow center lines and white edge
lines. Mrs. Cook testified that she has traveled this road all of her life. She
estimated that she probably travels it once a week. Mrs. Cook was alone in the
vehicle and testified that she was traveling at approximately forty-five miles
per hour which is the posted speed limit for this area. Mrs. Cook was
approaching a curve to her left in the road, when suddenly the vehicle’s right
rear tire dropped off the edge of the road into a hole that was located on the
outer edge of the blacktop. The edge of the road and a portion of the white
edge line were broken off and jagged at this location. When the tire came into
contact with thejagged blacktop, it burst, causing Mrs. Cook to lose control of
the vehicle. She applied the brakes in an attempt to bring the vehicle under control
but to no avail. The vehicle quickly went across both lanes of traffic and
struck the guardrail on the left side of the road head-on. The impact was
sufficiently serious that it caused the driver’s side air-bag to deploy. Mrs.
Cook was thrown forward and struck her forehead on the windshield. As a result,
she suffered a large cut to her head which was bleeding significantly at the
scene. According to Mrs. Cook, she also suffered injuries to her
2 REPORTS STATE
COURT OF CLAIMS [W.Va.
shoulder and back. Fortunately, the occupants in the vehicle behind her at the
time of this incident stopped and assisted Mrs. Cook. Mrs. Cook was taken by
ambulance to the emergency room at Boone Memorial Hospital in Madison, where
she was treated and released. However, she had to make three additional visits
to the emergency room for xrays and follow up treatment. Mrs. Cook testified
that she now has severe headaches which she directly relates to the injuries
she received in this incident. She also testified that approximately a year and
a half after this incident she had a CT scan of her head which was negative.
Claimants submitted into evidence medical expenses incurred as a result of this
incident in the amount of$ 1,882.46. However, claimants’ health insurance carrier
paid for these expenses and as a result of the collateral source rule these
expenses cannot be considered by the Court for reimbursement to the claimants.
Claimants’ only out-of-pocket expenses related to the medical bills incurred is
$15.00. Their vehicle was a total loss as a result of this incident. However,
claimants did not present any evidence as to the value of their vehicle. It had
to be towed from the scene due to significant damage. Claimant Dennis Cook
testified that he had the vehicle towed from the repair shop to their house
where it remains. Claimants only had liability insurance coverage on their
vehicle which did not cover any portion of the losses in this claim.
It is claimants’ contention that respondent knew or should have known of the broken
and jagged blacktop along the edge of the road and that it created a hazardous
condition for the traveling public.
Respondent asserts that it had no notice of the broken blacktop at issue and
that it did not present a hazardous condition to the traveling public.
Respondent also asserts that it was not the proximate cause of claimants’
damages.
Jeffrey Dingess, a Deputy Sheriff with the Boone County Sheriff’s Department,
testified that he is familiar with the portion of State Route 85 at the
location of this incident. One of Deputy Dingess’ duties involves the
investigation of automobile accidents. He testified that in addition to the
automobile accident investigation training he received at the State Police
Academy, he also received “intermediate accident” investigation training which
is a phase of training further advanced than that required of most police
officers. Deputy Dingess was the investigating officer at the scene of this
incident. He was notified of the incident at 10:38 a.m., and arrived at the
scene on State Route 85 at 10:50 a.m. Deputy Dingess testified that he
investigated a single-vehicle accident in which Wilma Cook was the driver, and
he completed an official accident report. Deputy Dingess testified as to the
findings he made in the accident report, which was introduced into evidence at
the hearing. He testified that the edge of the road where Mrs. Cook’s tire
dropped off the road was chipped and broken off. At the edge of the road near
the broken and jagged blacktop, Deputy Dingess noticed a yaw mark, which he
described as a mark on the road resulting from a tire moving forward but
sliding sideways. He stated that the yaw mark was indicative of the place where
Mrs. Cook’s tire went off the road on the right side of State Route 85. Respondent
introduced photographs into evidence at the hearing of this matter depicting
the broken and jagged edge of the blacktop, as well as the portion of guardrail
that Mrs. Cook’s vehicle struck. Deputy Dingess concluded that the cause of the
accident was Mrs. Cook’s tire going off the edge of the road, which caused her
to “overcompensate” when she maneuvered the vehicle back onto the road, causing
the vehicle to shift sideways and forcing it across the road into the
guardrail. He determined that the distance between the location where
claimant’s tire went off the road and the point of impact on the guardrail was
201 feet. Deputy Dingess testified that he is certain that the yaw mark was
caused by claimant’s vehicle’s tire and not some other vehicle. He testified
that the yaw mark matched the
W.Va.] REPORTS
STATE COURT OF CLAIMS 3
tires on claimant’s vehicle exactly. Further, he was of the opinion that he
arrived on the scene a short time after the accident and during daylight so he
was able to determine the tire marks with certainty.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of motorists on its roads and highways. Adkins
v. Sims, 46 S.E.2d 81 (W.Va. 1947). To hold respondent liable, claimants
must establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl.
103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In this claim, claimants failed to establish by a preponderance of the evidence
that respondent was negligent in its maintenance of State Route 85 in Mingo
County. Claimants presented no testimony as to why Mrs. Cook drove her vehicle
onto the edge of the road. She testified that she did not recall any oncoming
vehicles that forced her to maneuver the vehicle to the edge of the road.
Further, Mrs. Cook is familiar with the road and yet failed to produce any evidence
as to why her tire dropped off the road. Claimants assert respondent
negligently maintained the road and that this negligence was the proximate
cause of their damages. However, claimants did not introduce proof to support
this allegation. To find respondent negligent in this claim would require the
Court to speculate, which it will not do. Mooney v. Dept. of Highways, 16
Ct. Cl. 84 (1986) This Court has consistently held that it will not base an
award upon mere speculation. Phares v. Div. of Highways, 21 Ct. Cl. 92
(1996). Thus, after a thorough review of the evidence, the Court finds that the
claimants have not established that the respondent was negligent.
Furthermore, the Court wants to make it clear to the claimants that even if the
Court had found the respondent liable, the Court would have only been able to
make a small award to the claimants for Mrs. Cook’s medical expenses since she
had health insurance to cover all but approximately $15.00 of her costs. The
health insurance is a collateral source and the Court is constrained by the law
to refrain from making an award wherein a collateral source has already paid
for the alleged loss. In addition, had claimants prevailed in establishing
liability in this claim, they could have recovered the value of their vehicle,
had they presented sufficient evidence of its value.
In view of the foregoing, the Court is of the opinion to and does hereby deny
this claim.
Claim disallowed.
OPIAIIONISSUED JULY17, 2003
RICHARD D. HITE
VS.
DIVISION OF HiGHWAYS
(CC-02-329)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
4 REPORTS STATE
COURT OF CLAIMS [W.Va.
PER CUEJAM:
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’s son was driving the claimant’s vehicle on Cedar Valley Road in
Jackson County when the vehicle went off the edge of the road into a large drop
off causing damage to the vehicle.
2. Respondent was responsible for the maintenance of Cedar Valley Road at this
location in Jackson County and respondent failed properly to maintain Cedar
Valley Road on the date of this incident.
3. As a result of this incident, claimant’s vehicle sustained damage in the
amount of $1,303.38. However, claimant is limited to the amount of his
insurance deductible feature which is $100.00.
4. Respondent agrees that the amount of $100.00 for the damages 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 Cedar Valley Road in Jackson County on the date
of this incident; that the negligence of respondent was the proximate cause of
the damages sustained to claimant’s vehicle; and that the amount of 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$100.00.
Award of$l00.00.
OFINIOIV ISSUED JULY17, 2003
JAMES MCNEELY
VS.
DIVISION OF HIGHWAYS
(CC-02-260)
Claimant appearedpro Se.
Andrew F. Tarr, 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 brought this action for damage to his 2002 Dodge Stratus. The incident
occurred on Route 85 near the town of Bigson, Boone County, when claimant’s
vehicle struck a large hole on the edge of the road. This portion of road is
maintained by respondent in Boone County. The Court is of the opinion to make
an award for the reasons stated more fully below.
The incident giving rise to this claim occurred on June 6, 2002, at
approximately 10:00 a.m. Claimant’s wife, Andrea McNeely, was proceeding north
on Route 85 at a speed of about forty-five miles per hour. The speed limit at
this location is fifty miles per hour. Mrs. McNeely testified that she was on
her way to pick her husband up when the vehicle struck a large hole. Claimant’s
wife was familiar with the road and testified that she traveled it almost
daily. She also stated that she did not see the hole before her
W.Va.] REPORTS
STATE COURT OF CLAIMS 5
vehicle hit it due to the rain and it was dark. She testified that she could
not have avoided this hole since it was in the travel portion of her lane and
there was a large truck traveling in the opposite lane. This road is divided by
double yellow lines with white lines on the edges. Claimant arrived at the
scene after the incident happened, at which time he had his car towed due to
two wheels being damaged. Claimant testified that he went back to the location
of the hole the next day and took measurements. On June 11, 2002, claimant took
photos of the hole. He stated that the width of the hole measured approximately
fifteen and one half inches from the white edge line into the road and it
measured about thirty-three inches in length. Claimant measured the depth of
the hole at approximately six and a half inches. As a result of this incident,
claimant’s vehicle sustained damage to two wheels in the amount of $1,033.08.
Claimant submitted repair bills for the damages; however, he had insurance
coverage with a $500.00 deductible, which constitutes the limit of any recovery
in this action. In accordance with the Court’s decision in Summerville 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).
It is the claimant’s position that the respondent knew or should have known of
this hole on Route 85 and made the needed repairs.
Respondent did not offer any evidence to rebut claimant’s allegations about the
conditions existing on 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 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 of this type, claimant must prove that respondent had
actual or constructive notice of the defect and a reasonable amount of time to
take corrective action. 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 Route 85 in Boone
County. The Court is of the opinion that the location and size of the hole in
Route 85 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 on the part of
respondent by which claimant may recover his sustained loss.
Accordingly, the Court is of the opinion to and does make an award in this
claim.
Award of $500.00.
OPINION ISSUED JULY17, 2003
JAMES H. CHAPMAN
VS.
DIVISION OF HTGFI WAYS
(CC-02-227)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage to his 1999 Ford Escort ZX2 which
6 REPORTS STATE
COURT OF CLAIMS [W.Va.
occurred when his daughter Leah Chapman was operating the vehicle on U.S. Route
52
in Mingo County. Ms. Chapman came
upon a large mudslide in the road, causing her vehicle to slide into the
hillside. Respondent was responsible at all times herein for the maintenance of
U.S. Route 52.
The Court is of the opinion to deny
this claim for the reasons set forth more fully below.
The incident giving rise to this claim occurred on May 7, 2002, at
approximately 10:00 p.m. Claimant’s daughter, Leah Chapman, was driving
claimant’s vehicle northbound on U.S. Route 52 near Maher, in Mingo County. At the location of this
incident, U.S. Route 52 is a two-lane, blacktop highway with a yellow center
line and white lines on the edges. Ms. Chapman was on her way home
approximately fourteen miles from the site of this incident. Ms. Chapman
described the weather at the time of the incident as clear, but she stated that
it had been storming and raining all week prior to the incident. According to
Ms. Chapman, the road at this location is curvy and goes up and down numerous
hills. She stated that she was traveling approximately forty-five miles per
hour in a fifty-five mile per hour zone. Ms. Chapman was approaching a curve in
the road when she suddenly saw the mudslide in her lane of travel. She was
unable to maneuver into the southbound lane due to an oncoming coal truck and
the vehicle was almost in the mudslide before she saw it. She drove the vehicle
through the mud which caused her to lose control of the vehicle. The vehicle
spun around at least twice before striking the hillside and coming to rest on
the berm of the highway facing south. She described the impact as serious. The
vehicle was significantly damaged but fortunately Ms. Chapman did not suffer
any serious injuries. Ms. Chapman testified that she travels this road almost
daily. She also testified that she traveled past the location of the mudslide
in the southbound lane earlier in the day, but she did not observe a mudslide
at that time. According to Ms. Chapman, the mudslide was approximately ten to
twelve inches into the travel portion of the road and approximately eight feet
in length.
Claimant James Chapman arrived on the scene approximately twenty minutes after
the incident. He testified that the mud on U.S. Route 52 was approximately
sixteen inches deep. Claimant also testified that the ditch line adjacent to
the road was blocked off and water had backed up onto the road. He estimated that
forty feet of the road was covered in a pool of water as a result of the ditch
line being blocked. Claimant testified that he had driven past this location
three days earlier and noticed that the ditch line was blocked and water was
running across the road. However, he did not report the problem to respondent.
Claimant submitted into evidence an estimate for the damage to the vehicle in
the amount of$5,322.00. Claimant testified that the vehicle was “totaled”, and
that to have it repaired by any auto body shop would cost more than the value
of the vehicle. Therefore, he decided to pay a friend to make the repairs.
Claimant testified that he has paid $3,500.00 for the repairs made to the
vehicle at this time. Claimant seeks $5,322.00 in damages.
Claimant asserts respondent knew or should have known that there was a
potential for a mudslide at this location and taken the proper precautions to
prevent it or to at least place the proper warning signs for the traveling
public.
Respondent contends that it had no notice of a potential for a mudslide at this
location and that it reacted diligently and reasonably upon receiving notice of
the mudslide under the circumstances existing at that time.
Cecil Collins, a Transportation Worker II and Craft Worker for respondent in
Mingo County, testified that one of his responsibilities includes answering
emergency phone calls after normal routine working hours. He is familiar with
the portion of U.S. Route 52 at issue in this claim. He stated that the width
of the road at this location is
W.Va.] REPORTS
STATE COURT OF CLAIMS 7
between eighteen to twenty-two feet. He described the road at this location as
having a dip which then goes back uphill. Further, he believes that there is a
small curve just after the location of the mudslide. According to Mr. Collins,
the weather conditions the week leading up to this incident beginning on May 2,
2002, were very stormy and rainy. He stated that during the night of May 2,
2002, the local area received heavy rains and the Tug River came out of its
banks causing respondent to go into “red alert” in the southern region of the
State. Mr. Collins stated that the drainage areas and other tributaries of the
Tug River close to U.S. Route 52 near this location were in a flood
stage. He also testified that at approximately 10:30 p.m. he received a telephone
call while he was on duty and a female informed him that her daughter had been
involved in an accident near Old Field Branch and that a vehicle had struck a
large mudslide. Mr. Collins and another employee proceeded to the scene with a
truck full of large barrels and traffic cones which they set up at and around
the mudslide. Mr. Collins also stated that he later had flashing lights placed
on the barrels to warn the traveling public. Further, he stated that upon the
arrival at the scene he observed Ms. Chapman sitting in the vehicle which was
located on the southbound berm. Respondent submitted into evidence a DOH- 12
which Mr. Collins filled out on the night of this incident that reflects the
actions taken by respondent on that evening. This document indicates that
respondent went to the scene and secured it with barrels and flashing lights.
Mr. Collins testified that he did not have any prior notice or complaints
regarding any mudslide at this location and that he responded to this incident
as quickly as possible after receiving the call. He estimates that it took him
twenty to twenty-five minutes to get to the scene. Further, he testified that
beginning on May 2, 2002, respondent was responding to numerous mudslides all
over Mingo County and that all of respondent’s remaining personnel were
committed to the day shift. Further, he stated that he and a few other
employees were on night shift and if they noticed or were called about a
hazardous location then they would mark the area with hazard signs until the
hazard could be safely resolved the following day.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of motorists on its roads and highways. Adkins V. Sims,
46 S.E.2d 81 (W.Va. 1947). To hold
respondent liable, claimant must establish by a preponderance of the evidence
that the respondent had actual or constructive notice of the road defect in
question and a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Prittv. Dept. of Highways, 16 Ct. Cl. 8(1985).
In the present claim, the Court is of the opinion that claimant failed to
establish by a preponderance of the evidence that respondent was negligent. The
respondent was operating imder a “red alert” or emergency circumstances due to
the heavy rains and flooding at the time of this incident. Given this emergency
and the fact that respondent did not have prior notice of the mudslide, the
Court is of the opinion that respondent acted reasonably and diligently under
the circumstances. While the Court is sympathetic to claimant’s loss, it is
constrained by the law to deny this claim.
Therefore, in view of the foregoing, the Court is of the opinion to and does
hereby deny this claim.
Claim disallowed.
OPINIOW ISSUED JULY 17, 2003
TAMMY L. KING
8 REPORTS STATE
COURT OF CLAIMS [W.Va.
VS.
DIVISION OF HIGHWAYS
(CC-02- 183)
Claimant appeared pro se.
Andrew F. Tarn Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage to her 1995 Chevrolet SlO pickup truck
which occurred while she was traveling eastbound on Route 61 in East Bank,
Kanawha County, and the vehicle slid on a patch of ice causing it to strike the
mountainside. Respondent was responsible at all times herein for the
maintenance of Route 61 in Kanawha County. The Court is of the opinion to deny
this claim for the reasons set forth more fully below.
The incident giving rise to this claim occurred on March 22, 2002, at 7:30 a.m.
Claimant was traveling on Route 61 through East Bank on her way to Chelyan at
approximately thirty-five miles per hour. Route 61 is a blacktop, two-lane
highway with a double yellow center line and white lines on the edges. Each
lane is approximately ten feet in width. At this location, there is a mountain
on the left side of the road and railroad tracks on the right. Claimant
testified that she is familiar with this route as she travels this portion of
Route 61 almost on a daily basis. She had last traveled in this same location
on the day prior to the incident herein. She stated that she observed water on
the road at this location prior to this incident but she had never had any
problems with ice on the road. As claimant was driving around a curve, she saw
what appeared to be water on the road and slowed down. her vehicle. However,
once she reached a specific area of the highway, she saw that it was ice. She
stated that she had almost passed through the ice patch safely when suddenly
she lost control of her vehicle and it slammed front first into the
mountainside. The force of the impact caused the truck to turn around at which
time the back end struck the mountainside and bounced off. The impact did
substantial damage to her truck which had to be towed from the scene. Claimant
testified that water flows freely from the hillside and across the road. She
stated that there is no ditch-line, barrier, or drainage system present to
prevent the water from crossing the road. Claimant submitted a repair estimate
into evidence at the hearing of this matter in the amount of $1,830.36.
However, she had insurance coverage to cover this loss at the time of the
incident with a deductible of $500.00.
Claimant asserts that respondent was negligent in not having an adequate
drainage system to prevent the water from flowing onto the road and that
respondent failed to treat this portion of Route 61 to prevent the build up of
ice in an adequate manner.
Respondent contends that it was on SRTC (snow removal and ice control) at the
time of this incident and that it had inspected the area of the incident and
saw no ice build up. Thus, respondent contends it had no notice of this
particular hazard.
Frank McGuire, a foreman for respondent in Kanawha County, is responsible for
maintaining this portion of Route 61. He testified that he is also a dispatcher
for respondent. His duties as a dispatcher include receiving telephone calls,
radio messages, and keeping track of the trucks on duty. He is familiar with
the Route 61 at the location of this incident and was on duty at the time it
occurred. He testified that he is aware of claimant’s incident. According to
Mr. McGuire, respondent was on SRIC at the time of the incident. He stated that
while on SRIC, respondent’s employees patrol the roads with
W.Va.] REPORTS
STATE COURT OF CLAIMS
trucks containing various abrasives to be applied to any portion of the highway
which the driver believes is slick, icy, or otherwise needs to be treated.
Further, Mr. McGuire testified that he is required to keep a SRIC Log which
documents all truck drivers on duty, the routes each driver patrols, the time
of such patrol, and the condition of each route as determined by the driver.
Respondent introduced the log maintained by Mr. McGuire on March 22, 2002,
which indicates that one of respondent’s drivers traveled through the location
where claimant encountered ice on the road between approximately 5:30 a.m. and
6:00 a.m. The log also indicates that respondent’s driver reported that portion
of the road as clear. Further, Mr. McGuire testified that he had not received
any prior complaints about this portion of the road being slick or icy nor had
he received complaints about water flowing onto the road.
It is a well established principle that the State is neither an insurer nor a guarantor
of the safety ofmotorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 81 (W.Va. 1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that the respondent had actual or
constructive notice of the road defect at issue and a reasonable amount of time
to take corrective action. Chapman v.
Dept. of Highways 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
Respondent cannot be expected or
required to keep highways absolutely free of ice and snow at all times, and the
presence of an isolated patch on a highway during the winter months is normally
insufficient to charge the respondent with negligence. Christo v. Dotson 151 W.Va. 696,155 S.E.2d 571 (1967);McDonaldv.Dept.
of Highways, 13 Ct. Cl. 13 (1979).
However, respondent owes a duty to travelers to exercise reasonable care and
diligence in the maintenance of highways. Lewis v. Dept. of Highways, 16
Ct. Cl.
136 (1986).
In the instant claim, the Court is of the opinion that claimant failed to
establish by a preponderance of the evidence that respondent was negligent in
the maintenance of Route 61 at the time of her accident. The evidence
establishes that respondent was operating under SRIC at the time of this
incident; that a driver for respondent had just patrolled the location where
the incident occurred approximately an hour and a halfprior to the incident;
and that the driver did not see any ice or water on the road. Therefore, the
ice that claimant encountered formed quickly giving respondent very little time
to recheck the same area. Further, respondent had not received any complaints
prior to this incident regarding an on-going ice or water problem on the road
at this location. Thus, the Court is of the opinion that respondent acted
diligently in treating the roads on the date of this incident. While
sympathetic to claimant’s loss, the Court is constrained by the evidence to
deny a recovery in the claim.
In view ofthe foregoing, the Court is of the opinion to and does hereby deny this
claim.
Claim disallowed.
OPINION ISS UED JULY17, 2003
WILLIAM F. HTGGJNBOTHAM and ALICE HIGGINBOTHAM
VS.
DIVISION OF HIGHWAYS
(CC-02-26 1)
10 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimants brought this action for damage to their vehicle which occurred when
claimant Alice Higginbotham was traveling on Floradale Drive near Cross Lanes,
in Kanawha County, and their vehicle struck a boulder on the edge of the road.
Respondent was responsible at all times herein for the maintenance of Floradale
Drive. The Court is of the opinion to make an award for the reasons set forth
more fully below.
The incident giving rise to this claim occurred on October 2, 2001, at 8:45 a.m. Alice Higginbotham was driving her two children
to school in claimants’ 1991 Ford Econovan. The weather was clear and the road
was dry. She is familiar with the road and travels it often. Mrs. Higginbotham
was traveling at approximately ten miles per hour as she turned off of Koontz
Drive onto Floradale Drive. She traveled down a hill and proceeded to maneuver
around a right curve where there were four boulders on the edge of the road.
She safely passed the first three boulders, but as she passed the fourth
boulder, she was forced to maneuver the vehicle to the edge of the road due to
an oncoming vehicle. At this time, the vehicle’s passenger side door came into
contact with one of the boulders. Mrs. Higginbotham testified that the impact
with the boulder “pounded” the passenger door and then the boulder rolled back
and got caught under the rear bumper of the vehicle. She attempted to maneuver
the vehicle off of the boulder, and in doing so the vehicle dragged the boulder
out into the middle of the road. Eventually, she was able to maneuver the
vehicle and free it from the boulder. Mrs. Higginbotham described Floradale
Drive as a narrow, two-lane residential road. She testified that there are
locations on the road where it is difficult for vehicles to safely pass without
the drivers maneuvering to the edge of the road. According to Mrs.
Higginbotham, the road at the location of this incident proceeds downhill into
a right curve. She testified that the four boulders are located on the
respondent’s right-of-way at the edge of the grass adjacent to the road. She
also introduced into evidence a photograph of the location as well as the
boulders, which depicts the first three boulders laying flat on the ground and
the pointed edges of the boulders extending away from the road. However, the
fourth boulder is situate with the base on the ground, but the pointed edge
extends over the edge of the road. Further, she testified that the fourth
boulder also is located in a blind spot in the curve and that she did not see
the edge of the boulder until it was too late to react. Mrs. Higginbotham
admits that she knew the boulders were there because she travels the road
often. However, she testified that she was not aware of how far the one boulder
extended into the road. Claimants submitted a repair estimate into evidence in
the amount of $1,998.63.
Claimants assert that respondent was negligent in allowing boulders to be
placed at the edge of the road creating a hazardous condition that was the
proximate cause of claimants’ damages.
It is respondent’s position that it had no notice that the boulders presented a
risk to the traveling public.
Garry Westfall, a foreman for respondent in Kanawha County at the time of this
incident, is responsible for the routine maintenance of the road at the
location of this incident. Mr. Westfall is familiar with Floradale Drive
including the location of this incident. According to Mr. Westfall, Floradale
Drive is a priority one road for snow and ice imoval purposes since it is
located near a public school. However, for surface repairs and other
maintenance it is a priority two road. Mr. Westfall testified that
W.Va.]
REPORTS STATE COURT OF CLAIMS
11
respondent first
became aware of the rocks being a problem when the State School bus garage
called and asked respondent on or about January 9, 2002, if respondent could
remove the rocks. He and a crew of respondent’s employees went to the location
to move the rocks on January ii, 2002. However, the property owner whose land
abuts respondent’s right-of-way demanded that respondent not move the rocks. He
testified that the property owner stated that the rocks belonged to them and
that the rocks were on their property. Mr. Westfall stated that he then
informed his supervisor, Chuck Smith, of the problem. Mr. Smith contacted
respondent’s right-of-way division which determined that the rocks were in fact
on respondent’s right-of-way. Upon obtaining this information, Mr. Westfall had
the rocks removed despite threats from the property owners. According to Mr.
Westfall, respondent was not aware that the rocks had been replaced in the same
location. He testified that no one had made any calls or complaints regarding
the rocks until the school bus garage called on or about January 9, 2002. However,
Mr. Westfall admitted that he and other employees occasionally travel this
road, and that even though the rocks are visible, respondent did not remedy the
condition. He stated that the property owners “kept inching” the rocks closer
to respondent’s right- of-way.
It is a well established principle of law that the State is neither an insurer
nor a guarantor ofthe safety ofmotorists on its roads and highways. Adkins
v. Sims, 46 S.E.2d 81. (W.Va. 1947). To hold respondent liable, the
claimants must establish by a preponderance ofthe evidence that the respondent
had actual or constructive notice of the road defect in question and a
reasonable amount of time to take corrective action. Chapman v. Dept. of
Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. ofHighways, 16 Ct.
Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent had at
least constructive if not actual notice of the location of the rocks at the
edge of the road. The evidence adduced at the hearing of this matter established
that respondent’s employees travel this road often enough to have noticed this
hazardous condition. Further, respondent treats this road as a priority one
road for snow and ice removal purposes and thus it should have been more
diligent and remedied this hazardous condition. However, the Court is also of
the opinion that claimant Alice Higginbotham is not without fault in this
incident. She was familiar with the road, and she knew that the rocks were
present. She should have exercised more care in operating the vehicle under the
conditions then and there existing.
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
finding of fact and conclusions of law stated herein above, the Court has
determined that claimant Alice Higginbotham was 40% negligent for the incident
that occurred. Since respondent’s negligence was greater than the negligence of
claimant Alice Higginbotham, claimants may recover sixty per cent (60%) of
their loss.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimants in the amount of$1,199.l8.
Award of$ 1,199.18.
OPINION ISSUED JULY 17, 2003
12 REPORTS STATE
COURT OF CLAIMS [W.Va.
JESSE E. COOK and NORMA C. COOK
VS.
DIVISION OF HiGHWAYS
(CC-02-258)
Claimants appeared pro Se.
Andrew F. Tarr, Attomey at Law, for
respondent.
PER CURIAM:
Claimants brought this action for damage to their vehicle which occurred when
claimant Norma Cook was operating the vehicle on Dry Branch Drive in Kanawha
County and the vehicle struck a sharp edge of a drainage culvert. Respondent
was responsible at all times herein for the maintenance of Dry Branch Road in
Kanawha County. The Court is of the opinion to make an award in this claim for
the reasons set forth below.
The incident giving rise to this claim occurred on or about May 15, 2002, at
approximately 4:30 p.m. near the intersection of Nunley Drive and Dry Branch
Drive. Claimant, Norma Cook, was traveling from her home in Campell ‘s Creek to
her mother’s home on Nunley Drive which is approximately six or seven miles
from claimants’ home. Mrs. Cook was driving a 2002 Buick LaSabre. She is
familiar with the road having grown up and lived in the area most of her life.
The weather on the date of this incident was clear, but there had been a heavy
rainstorm a few days prior. Nunley Drive is a one- lane, blacktop road with no
center or edge lines. As Mrs. Cook turned off of Dry Branch Drive onto Nunley
Drive, she was approached by an oncoming truck that was exiting Nunley Drive.
She had to back her vehicle out of Nunley Drive and onto Dry Branch Drive to
allow the oncoming truck to pass safely. According to Mrs. Cook, there is a
curve in the road on Dry Branch Drive where she backed the vehicle. Once she
maneuvered the vehicle to this location, the front passenger side tire struck a
sharp edge of a metal culvert bursting the tire. Mrs. Cook testified that the
heavy rainstorm on May 5, 2002, caused a lot of water to wash leaves, tree
limbs, and other debris into the ditch line along Nunley Drive and also into
the culvert. She stated that due to this debris she could not see the culvert
or the sharp metal edge. On May 7, 2002, Mrs. Cook called respondent at Chelyan
to inform them that the ditch line on Nunley Drive had overflowed onto the
road, her mother’s driveway and nearly flooded her house. However, Mrs. Cook
testified that respondent did not clean out the ditch line until after the
incident at issue. In order to replace the tire, claimants went to two separate
dealers. The dealers informed claimants that they did not have the same model
tire in stock and that it would take four or five days before the same model
tire could be delivered to the store. Mrs. Cook testified that the dealer
informed the claimants that they could sell them two comparable tires. She
testified that the dealer informed the claimants that they would not recommend
just replacing one front tire, leaving two different brands of tires on the front
of the vehicle. The claimants purchased two new front tires and had the tires
balanced at a total cost of $279.80. However, Mr. Cook testified that he drove
the vehicle on the interstate with the two new tires and noticed that the
vehicle did not handle as well. He attributed this to the fact that the vehicle
had two new tires on the front that were different from the two back tires.
Further, Mr. Cook read a section of the vehicle’s owner’s manual into the
record at the hearing which stated that if any tire is replaced it should be
the same as the original or else it may affect the handling of the vehicle.
Therefore, claimants decided to go back to the dealer and purchase two new rear
tires as well. The cost of the two rear
W.Va.] REPORTS
STATE COURT OF CLAIMS 13
tires was $264.11. Thus, claimants seek a total award of $531.40 in damages.
Claimants testified that their insurer informed them that this loss was not
covered under their insurance policy.
Claimants assert that respondent negligently maintained the culvert by not
remedying its sharp edge or at least placing warning signs around the culvert
to protect the traveling public.
Respondent did not introduce any evidence at the hearing of this matter to
rebut claimants’ allegations about the culvert on Dry Branch Drive.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its roads and highways. Adkins v.
Sims, 46 S.E.2d 811 (W.Va.1947). To hold respondent liable, claimants must
establish by a preponderance ofthe evidence that the respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman
v. Dept. ofl-Iighways 16 Ct. Cl. 103
(1986); Pritt v. Dept. ofHighways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent was negligent
in failing to correct a defective and hazardous condition. The evidence
established that there was a very sharp edge at the end of the culvert on Dry
Branch Drive. Further, the evidence established that there was debris covering
the hazardous edge of the culvert which prevented Mrs. Cook from seeing it.
Respondent had at least constructive notice of the debris in the area due to
claimants’ telephone call to the respondent about the local ditch line being
clogged. Respondent should have remedied the clogged ditch-line sooner and it
would have or at least should have remedied the defective culvert. However, the
Court will make an award to claimants for the one tire that was damaged as a
proximate result of respondent’s negligence. It is not reasonable to require
respondent to pay for four new tires when claimants could have waited a few
days more for a replacement tire that matched the original tires. Furthermore,
the Court will reduce the award for the one damaged tire since it was an
original tire and had approximately 35,000 miles on it. This is at least
one-half the life of a tire. The Court is of the opinion that the cost of a new
General tire is approximately $170.00, and given the age of the damaged tire in
this claim, claimants are entitled to receive one-half the cost of a new tire.
Thus, the Court makes an award to claimants in the amount of $85.00.
Award of $85.00.
OPIWION ISSUED JULY17, 2003
WEST VIRGINIA ASSOCIATION
OF REHABILITATION FACILITIES
VS.
DIVISION OF REHABILITATION SERVICES
(CC-03-302)
Claimant appeared pro Se.
Joy M. Bolling, Assistant Attorney
General, for respondent.
PER CUEJAM:
14 REPORTS STATE
COURT OF CLAIMS [W.Va.
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant seeks $4,053.95 for providing maintenance services to
respondent State agency. 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.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $4,053.95.
Award of $4,053.95.
OPINION ISS UED JULY17, 2003
SCOTT ALAN RENNER
VS.
DIViSION OF MOTOR VEHICLES
(CC-03-090)
Claimant appeared pro Se.
Joy M. Bolling, 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 expenses incurred when respondent wrongfully
suspended his motor vehicle driver’s license, causing his car to be impounded
while he was traveling in New Matamoras, Ohio.
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 $100.00.
Award of$lOO.00.
OPINION ISS UED JULY17, 2003
POMEROY IT SOLUTIONS, INC.
VS.
DEPARTMENT OF HEALTH AND HUMAN RESOURCES
(CC-03-162)
Claimant appeared pro Se.
Joy M. Bolling, Assistant Attorney
General, for respondent.
W.Va.] REPORTS
STATE COURT OF CLAIMS 15
PER CUR1AM:
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$ 18,724.00 plus interest for computer
merchandise purchased by respondent in Kanawha County. 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.
The Court denies claimant’s request for interest based upon the provisions in
W.Va. Code §
14-2-12 which states “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.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of$ 18,724.00.
Award of$ 18,724.00.
OPINJONISSUED JULY17, 2003
MONTGOMERY GENERAL HOSPITAL
VS.
DIVISION OF CORRECTiONS
(CC-03-243)
Claimant appears pro Se.
Charles P. Houdyschell, Jr., 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 $35,593.23 for medical services
rendered to an im-nate in the custody ofrespondent at Mount Olive Correctional
Complex, 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 Airken,
Sales and Service, et al. vs. Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED A UGUST 25,2003
16 REPORTS STATE
COURT OF CLAIMS [W.Va.
PEARL WATTS
VS.
DiVISION OF HiGHWAYS
(CC-01-1 87)
Mark French, Attorney at Law, for claimant.
Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent.
WEBB, JUDGE:
Claimant brought this action for property damage to her home located in Dunbar,
Kanawha County, which she alleges occurred during a construction project on
1-64 in October2000. Claimant alleges that her home sustained the most serious
damage on one particular day in October 2000. Respondent is responsible for the
maintenance of 1-64 in Kanawha County. The Court is of the opinion to deny this
claim for the reasons set forth more fully below.
Claimant, Pearl Watts, a 72-year-old widow resides at her home in Dunbar.
Claimant’s home fronts Route 25, also referred to as Fairlawn Avenue. it is a
single story home made of masonry block. The left side of the house is an
addition and is constructed over a crawl space while the right side is part of
the original home and is constructed over a basement. There are three covered
porches on the front, left, and rear sides. The house has three bedrooms. It is
located approximately seventy-five to one hundred yards from 1-64, which is
located on the other side of Route 25 and above claimant’s home. Claimant
purchased her home in 1976 and has lived there ever since. At the time this
incident occurred, the exterior of her home was made of stucco, but sometime in
the summer of 2001, claimant had vinyl siding installed in place of the stucco.
During this time period, she has made normal routine maintenance repairs to her
home. Claimant installed a drainage system in the basement of her home and a
sump pump approximately fifteen or sixteen years prior to 2002, when this claim
was heard. Claimant had the sump pump installed due to concerns of potential
water damage in the basement. She had some exterior patching done to her home approximately
fifteen or sixteen years ago. Claimant also stated that she recalls having some
minor cracking problems on the front portion of her home in the early to mid
1980’s. However, she stated that she had it repaired and she has not had any
trouble since then until this incident. She stated that she had her basement
water proofed in 1990, and the gutters replaced in the mid 1980’s. However,
most work performed on her home was to ensure that it would remain in good
condition. Beginning in 1999, respondent was in the process of an on-going
construction project on 1-64 to add a third lane in both directions of the
interstate and to install a new permanent concrete barrier. Heavy equipment was
being used on a daily basis, and Jersey barriers were placed to provide lane
separation during various stages of the construction project. She testified
that she had not experienced any problems regarding cracking of the walls or
other foundational problems until the incident at issue in this claim. Although
claimant could not see the construction work from her home, she saw it often
while driving on the interstate. One night in late October 2000, claimant felt
extremely strong vibrations and heard loud noises coming from the construction
area on 1-64. She testified that the doors and windows on her house shook and
rattled. She could feel her home vibrating. The next morning she awoke and
attempted to exit her home through the front door facing 1- 64 but was unable
to do so because it wasjammed. She was also unable to open the door at the east
end of the house, which was also jammed. The only door in the house that she
was able to open was the sliding glass door located at the back of the house.
She
W.Va.j REPORTS
STATE COURT OF CLAIMS 17
telephoned her brother-in-law, Freer Oxley, to come and assist her with opening
the two doors which she was unable to open. In addition, outside of the house
there are numerous cracks over the windows and around the doors including the
living room window as well as a large crack in the wall of the back porch.
Claimant also stated that the porch on the left side of the house was pulled
loose from the house due to the vibrations. The outside wall above the door
leading from this porch to the utility room also has a significant crack above
it which extends from the corner of the door to the roof above the porch. The
down spout gutter was broken loose from the right front corner of the northern
end of the house and there is a large, deep crack in the external wall of the
right rear corner of the house. Claimant testified that the down spout was
significantly displaced from the gutter. She also testified that this occurred
on the same night in October 2000 that she felt strong vibrations and heard
loud noises. She stated that she had not had any problems with her gutter or
down spouts coming loose or displaced prior to this event. Claimant introduced
photographs into evidence demonstrating most of these damages md uding the
door in the laundry room which has “dropped down” and cannot be opened without
pulling the door facing loose. Claimant also submitted photographs into
evidence showing cracked plaster above the windows in all three bedrooms of the
house. Some areas were significantly cracked and damaged. She has attempted to
repair these cracks but has been unsuccessful in doing so. Furthermore,
claimant testified that there is significant cracking of the concrete or cinder
blocks that make up the foundation of the front corner of her home. Additional
photographs introduced by claimant show several large cracks extending
horizontally through and along the mortar lines of these blocks. Claimant also
testified that there is some cracking of the concrete or cement blocks in the
crawl space under the front portion of her home.
Alexander Brast Thomas, a certified civil engineer with the Thomas Company,
testified as claimant’s expert in this claim. Mr. Thomas visited claimant’s
home and spoke to her regarding the incident and the subsequent damages. He
reviewed the report prepared by Mr. Pemiington of Civil Tech Engineering, an
agent of claimant’s homeowner’s insurance carrier State Farm. He also reviewed
Mr. Pennington’s report and photographs regarding the damage to claimant’s home
and spoke to a geologist in his own firm regarding the issues in this claim.
Upon examining this information, Mr. Thomas concluded to a reasonable degree of
engineering certainty that the proximate cause of claimant’s damages was due to
shock induced vibrations. He testified that the shock induced vibrations
probably started with the beginning of the construction work on 1-64 near
claimant’s home. According to Mr. Thomas, the fact that claimant alleges to
have suffered damage in such a short period of time corroborates his opinion
that shock induced vibrations were the “contributing cause” of the damage to
claimant’s home. Mr. Thomas also disagrees with respondent’s theory that
claimant’s damages were caused by water, given the short amount of time in
which the damages allegedly occurred. Mr. Thomas stated that the testimony
presented by claimant that her home was not damaged prior to the incident at
issue, nor was it damaged once respondent’s construction work on 1-64 was
complete, corroborates his theory that claimant’s damages were caused by shock
induced vibrations and not water damage or shrinkage. Thus, Mr. Thomas does not
believe that water caused this damage given the short period of time that the
damage occurred. However, he did testify that it was “conceivable” that the
groundwater level, which was at ten feet, might affect the soil under and
around claimant’s home in such a way that it intensified the shock from the
construction site to claimant’s property. Mr. Thomas described this process as
“saturation” or “liquefaction”. Mr. Thomas also disagrees with respondent’s
theory that “soil shrinkage”caused or contributed to
18 REPORTS STATE
COURT OF CLAIMS [W.Va.
claimant’s damages. He ruled out soil shrinkage as a possible cause since
claimant has lived in the house for 27 years and she has never observed any
cracking or other problems with the walls or foundation ofthe house.
Furthermore, upon observing the spread footing of the house, he saw no evidence
of settlement damage. Further, Mr. Thomas also testified as to his reasons for
disagreeing with Mr. Pennington’s report which concluded that claimant’s
damages were not caused by the construction on 1-64. He stated that Mr.
Pennington neglects entirely the effect of traffic and events which occurred
during the construction activity such as the dropping of concrete barriers.
However, Mr. Thomas admits that he was not on site while the construction work
was ongoing and that neither he nor claimant ever saw the concrete barriers
being dropped. The only information he has regarding barriers being dropped
during the construction project comes directly from information given to him by
claimant. Based upon his expertise in civil engineering and his review of the
evidence he received in this claim, Mr. Thomas is of the opinion that shock
induced vibration was the primary cause of the damage to claimant’s home.
John Wiseman, a project manager and estimator for Wiseman Construction Company,
testified as claimant’s expert witness as to the damage done to her home and
the cost of repairs. Mr. Wiseman testified that he inspected claimant’s home
both inside and outside. Mr. Wiseman stated that he observed cracking in the
masonryjoints as well as through the block. He also observed photographs that
depicted damage in the crawl space of the house which he described as the type
of repair work that is labor intensive due to it being in such a confined
space. The fact that it’s a confined space brings about ventilation factors
which increases labor costs. Based upon these observations and factors, he
estimated the total cost of repairs to be $41,225.00. However, Mr. Wiseman
estimated that to replace the stucco with the vinyl siding would cost an
additional $5,200.00. Mr. Wiseman stated that materials and supplies would be
needed such as mortar, a lot of grout to fill voids in the structure due to
slippage, paint, and wallpaper. Further, he stated that carpet and baseboards
for the interior are needed as well as smaller miscellaneous items. Claimant
submitted an estimate for the repair work she asserts is needed to repair the
damage to her home in the amount of $41,225 .00.
It is claimant’s contention that respondent knew or should have known that the
strong vibrations and loud noises coming from its road construction work would
cause damage to nearby houses, and that respondent’s conduct was the proximate
cause of the damage to her home.
Respondent asserts that it did not perform any work during the 1-64
construction project that contributedto or caused claimant’s damages. Instead,
respondent asserts that claimant’s damages were caused by water and soil
shrinkage.
Dr. George A. Hall, the geotechnical research engineer with the Engineering
Division for respondent, testified as respondent’s expert witness. Dr. Hall
first visited claimant’s property in November 2000, at the request of Bruce Leedy,
one of respondent’s area engineers to whom claimant had made a complaint about
the construction project on 1-64 and the damages to her home. At that time, Dr.
Hall viewed the inside and outside of claimant’s home. Claimant spoke with Dr.
Hall on that occasion to explain to him that she had had some problems with
damage to her home in 1999, but in the fall 2000, the problems worsened. At
that time, Dr. Hall assumed that claimant’s property was situate on sandy soil
and it was possible that vibration damage could have occurred. He thought that
if there had been sufficient vibration to the sandy soil, then the kind of
damages experienced by claimant to the porches and doors of her home were
possible. After the instant claim was filed, however, Dr. Hall revisited the
property in February 2002 to obtain soil samples. This effort took two visits
as the hand auger he had
W.Va.] REPORTS
STATE COURT OF CLAIMS 19
planned to use for obtaining the soil sample would not penetrate the soil
sufficiently. On the second attempt to obtain a core boring a portable gasoline
powered auger was used successfully to retrieve a core boring twelve (12) feet
deep, well below the foundation level of claimant’s home, Dr. Hall performed
this investigation as he had read a report prepared by Mark Pennington for
State Farm Insurance Company which indicated that there was clay soil in the
crawl space beneath claimant’s home. Mr. Pennington observed shrinkage cracks
in the soil in the crawl space. Thus, Dr. Hall performed his own investigation
of the soil and developed his expert opinions about the damages to claimant’s
home based upon this investigation. First, he stated that clay soil is not
susceptible to settlement from vibration because the particles are “somewhat
glued together” such that these do not move during vibration. Sandy soil,
particularly loose sandy soils, are subject to vibrations. The upper three feet
of soil in the boring was wet which he explained was normal for the wet season
of winter. The next four feet of the sample was dry soil and the water table
was apparent at ten feet. The core boring revealed to Dr. Hall that the soil
beneath claimant’s home is silty clay soil and the water table being at ten
feet was a relatively high level. When silty clay soil dries out, Dr. Hall
explained, the clay soils shrink due to loss of surface tension from the water
and the particles of soil come closer together to fill the voids where water
once filled the soil. When this occurs, he stated that anything resting on the
soil, such as the foundation of a home, goes down with the shrinking soil.
Since the drought of 1988 in West Virginia, our area experienced hotter, drier
summers just prior to that drought and then again in 1999 there was another
drought followed by a wet spring in 2000 with another drought. Dr. Hall
mentioned these facts in explaining that was the reason that claimant started
to notice significant foundation problems at that time, and it is his opinion
that the shrinkage of the soil caused a portion of the damages to her home as
it relates to the foundation. In fact, it is Dr. Hall’s opinion that she
noticed her problems with the porches and doors suddenly because the shrinkage
became sufficiently severe that cracking began to occur quickly. The stresses
reached such a level that the porches lost support at the corners so the
corners began to settle first thereupon inducing stresses in the house and
doorways actually pushing the doors so that the tops of the doors were rubbing
against the door frames. Therefore, there were damages sustained to the door
frames and cracks to the porch. In his opinion, ninety per cent (90%) of the
damages to the porches is the result of soil shrinkage.
Dr. Hall also addressed the expert opinion of Mr. Thomas that vibration shock
caused claimant’s damages. He stated that he reviewed the construction project
documents and determined that there was no blasting performed on the project.
He scaled the distances from the highway to claimant’s property at 200 or 300
feet from the highway closest to her property, 800 feet from the Roxalana
Intersection, and 2000 feet from the Dunbar Bridges. Any vibrations from
construction activities would have, in his opinion, been too distant and would
not have been significant.
As to the cracks at the ceilings in claimant’s home, Dr. Hall testified that in
his opinion these were caused by water seeping into the stucco from the gutter
and down spouts which were corroding and allowing water to leak out onto the
stucco. The type of cracking occurring radiates outward and this fact in his
opinion supports his position that the corrosion at the down spouts are the
cause of these damages. This cracking is referred to as secondary cracking
since the source of the water is from the gutters and/or the down spouts.
Thus, to summarize Dr. Hall’s testimony, he opined that there are two causes
for the damages to claimant’s home: the first cause is the shrinkage of soil
due to the drought
20 REPORTS STATE
COURT OF CLAIMS [W.Va.
periods, and the second cause is water getting into the stucco from the down
spouts causing water damage to the interior walls of claimant’s home.
In all negligence claims, it is the burden of the claimant to establish by a
preponderance of the evidence that respondent acted negligently and that the
alleged negligence was the proximate cause of the claimant’s damages. Louk v. Isuzu Motors, Inc. 198 W.Va. 250,479
S.E.2d 911(1996). See also Roush v. Johnson 139W. Va. 607, 80 S.E.2d 857 (1954).
In the instant claim, the claimant bears the burden of proving by a
preponderance of the evidence that respondent negligently caused vibrations
while performing construction work on 1-64 and, further, that such vibrations
were the proximate cause of the damage to claimant’s home. Absent specific
evidence that the proximate cause of the damage to claimant’s property was
vibrations induced by respondent, the Court is constrained to speculate as to
the cause of claimant’s damages. Stephenson
v. Division of Highways 22 Ct. Cl. 98
(1998). This Court has consistently held that an award camiot be based on mere
speculation. Mooney v. Dept. of highways 16 Ct. Cl. 84(1986); Phares v. Division of Highways 21 Ct. Cl. 92(1996).
After a thorough review of the evidence, the Court is of the opinion that the
claimant has not established that the damage to her home was caused by any
specific acts or omissions on the part of the respondent. Claimant was only
able to speculate that respondent may have dropped the concrete “Jersey
Barriers” causing vibration induced damage to her home. However, she never saw
the Jersey Barriers dropped or produced any evidence that they were dropped.
Further, claimant’s expert witness based his conclusions on the claimant’s
speculation that respondent may have dropped the barriers. In addition, claimant
failed to produce any evidence that respondent did any blasting or otherwise
committed any act or omission that proximately caused vibration damages to her
home. It would be mere speculation for the Court to assume that respondent
negligently induced vibrations that proximately caused the damage to claimant’s
property. While sympathetic to the claimant’s position, the Court is unable to
justify an award under these circumstances.
Accordingly, the Court is of the opinion to and does hereby deny this claim.
Claim disallowed.
OPINION ISSUED A UGUST 25, 2003
GONZALO ROBAYO
VS.
DIVISION OF H1GHWAYS
(CC-02-330)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant broughtthis action for damage to his 1989 BM W-329i which occurred
when he was operating his vehicle on County Route 60/4 in Barboursville, Cabell
County, and the vehicle struck a large hole on the edge of the road. Respondent
was responsible at all times herein for the maintenance of County Route 60/4. The
Court is of the opinion to make an award in this claim for the reasons stated
more fully below.
W.Va.] REPORTS
STATE COURT OF CLAIMS 21
The incident giving rise to this claim occurred on July 26, 2002, at 11:00 a.m.
Claimant, Gonzalo Robayo, was traveling eastbound on County Route 60/4, also
referred to as Spring Road, in Barboursville. County Route 60/4 is a narrow,
two-lane blacktop road with double yellow center lines and no white edge lines.
The road is a secondary highway approximately sixteen feet wide in most places.
There is a steep hill on the right side of the road for eastbound traffic. On
the date of the incident at issue, claimant was traveling to his girlfriend’s
house. He estimates that he was traveling between twenty- five and thirty miles
per hour. He testified that he was approximately two hundred yards from his
girlfriend’s house when he observed a large oncoming truck. He stated that he
was afraid that the truck was going to strike his vehicle so he maneuvered it
to the right edge of the road. Suddenly, the two right side tires dropped off
the paved portion of the road down into a large hole. He immediately heard the
air leaking out of both right side tires. Claimant testified that a large
portion of the road at this location was broken off or otherwise missing and
that the edge of the road was veryjagged. He estimates that there was a
drop-offapproximately three-quarters to a half foot deep between the paved
portion of the road and the ground where the pavement was missing. Claimant was
able to drive his vehicle to his girlfriend’s driveway and park it. He
discovered that both right side wheels were destroyed. Claimant introduced
photographs into evidence at the hearing of this matter which depict a large
hole along the edge of the road with jagged edges in the blacktop. The
photographs also depict a significant drop off at the location where the road
had broken off. Further, the photographs depict the fact that the portion of
the berm where claimant’s tires dropped off the blacktop was not covered with
weeds as was the remaining berm near this location but was soil only. Claimant
presented an estimate to the Court in the amount of $591.48 for the two wheels
and an estimate in the amount of $112.19 for a four-wheel alignment. Claimant seeks
a total award in the amount of
$703.67 for the damages incurred. Claimant has automobile liability insurance
to cover this damage with a deductible feature of $500.00; therefore, claimant
is limited to a recovery of his deductible feature of $500.00.
Claimant asserts that respondent knew or should have known that this portion of
the road was broken off and that it presented a hazardous condition to the
traveling public.
Respondent contends that it did not have notice of this condition, and thus, it
was not negligent in maintaining the road at the location of this incident.
Charles King, Maintenance Crew Supervisor for respondent in Cabell County,
testified that his responsibilities include maintaining the roads and
responding to complaints. He testified that he is responsible for County Route
60/4 and he is familiar with the area of this incident. Mr. King testified that
County Route 60/4 is a secondary road with less traffic than the local primary
routes. He stated that it is not a high priority route in terms of routine
maintenance. He stated that respondent maintains secondary roads by responding
to complaints from the traveling public and by relying upon respondent’s
employees who may happen to notice a problem while traveling these roads. Mr. King
testified that he did not know about this incident nor was he aware of the
hole. In addition, he stated that respondent had not received any complaints
regarding the hole. According to Mr. King, the only complaints that respondent
had received about County Route 60/4 were those regarding weeds and brush
growing along the roadside. Further, Mr. King is of the opinion that the hole
had not been present for very long due to the fact that the photographs
introduced into evidence depict that the weeds on the side of the road did not
grow to the edge of the blacktop. He testified that weeds which have grown to
the edge of a blacktop road where there is a hole indicates a high probability
that the
22 REPORTS STATE
COURT OF CLAIMS [W.Va.
hole had been present for a significant amount of time. However, Mr. King
testified that a crew leader/foreman lived in the area at the time of this
incident and that he traveled this portion of road everyday. According to Mr.
King, this crew leader/foreman must not have thought the hole claimant’s
vehicle struck was a “major hazard” or he would have responded to it.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 81 (W.Va. 1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that the respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman
v. Dept. of Highways 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
Tn the present claim, the Court is of the opinion that respondent had at least
constructive, if not actual, notice of the defect on County Route 60/4 and a
reasonable amount of time to remedy the defect. The evidence established that
there was a large hole on the edge of the road where the blacktop had broken
off and that this hole created a hazardous condition for the traveling public.
Respondent had an employee who passed this location daily who could have seen
this condition and responded to it in a timely manner. Further, the Court is of
the opinion that given the size and location of this hole it had been present
for a significant period of time. Consequently, there is sufficient evidence
that respondent was negligent in this claim and that this negligence was the
proximate cause of the damages to claimant’s vehicle.
Accordingly, the Court is of the opinion to and does make an award to claimant
in the amount of $500.00.
Award of $500.00.
OPINION ISSUED AUGUST25, 2003
JAMES L. GROVES
VS.
DIVISION OF HIGHWAYS
(CC-02-39 1)
Claimant appearedpro se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURTAM:
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 was traveling northbound on W. Va. Route 62 in the area known as
the “Escue Curves” when the edge of the pavement gave way causing claimant to
lose control of his motorcycle which then struck the guardrail along the
northern roadway edge.
2. Respondent was responsible for the maintenance of the portion of W. Va.
Route 62 known as the “Escue Curves” in Mason County, and respondent failed to
maintain properly this portion of W. Va. Route 62 on the date of this incident.
3. As a result of the incident herein, claimant’s motorcycle sustained damage
W.Va.] REPORTS
STATE COURT OF CLAIMS 23
and claimant suffered personal injuries, including pain and suffering, for a
total amount of damages of $7,000.00 as agreed to by the parties.
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 W. Va. Route 62 in Mason County on the date of
this incident; that the negligence of respondent was the proximate cause of the
damages sustained to claimant’s motorcycle and the injuries which he suffered;
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 $7,000.00.
Award of $7,000.00.
OPINION 155 UED AUGUST25, 2003
MONTGOMERY GENERAL HOSPITAL
VS.
DIVISION OF CORRECTiONS
(CC-03-288)
Claimant appears pro Se.
Charles P. Houdyschell, Jr., 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 $4,071.25 for medical services rendered
to inmates in the custody of respondent at Mount Olive Correctional Complex, 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 AUGUST25, 2003
AMANDA TRYGAR
VS.
HIGHER EDUCATION POLICY COMMISSION
(CC-03-332)
Claimant appearedpro Se.
24 REPORTS STATE
COURT OF CLAIMS [W.Va.
Jendonnae L. Houdyschell, Assistant Attorney General, for respondent.
PER CUR1AM:
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 $150.00 for personal
property damage as a result of water leaking from a dormitory room located
above claimants room in Arnold Hall. 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.
Tn view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $150.00.
Award of $150.00.
OPINION ISS UED AUGUST25, 2003
WILLIAM A. MYERS, 11, DMD
VS.
DIVISION OF CORRECTIONS
(CC-03-290)
Claimant appears pro Se.
Charles P. Houdyschell, Jr., 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 $2,398.45 for medical services rendered
to an inmate in the custody of respondent at Huttonsville Correctional Center,
a facility of the respondent. Respondent, in its Answer, admits the validity of
the claim, and further states that there were insufficient funds in its
appropriation for the fiscal year in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem
Sales and Service, et al. vs. Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED OCTOBER 6, 2003
SANFORD SHAFFER and GLORIA J. SHAFFER
VS.
DIVISION OF HIGHWAYS
(CC-03-02 1)
W.Va.J REPORTS
STATE COURT OF CLAIMS 25
Claimant appearedpro Se.
Andrew Tarr, Attorney at Law, for
respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimants and respondent wherein certain facts and circumstances of the
claim were agreed to as follows:
I. On October 19, 2002, claimant Gloria J. Shaffer was traveling on US Route
622, Martins Branch Road, in Pocatalico, Kanawha County, when claimants’
vehicle, a
1997 Ford Escort, struck a hole in the road damaging two wheels.
2. Respondent was responsible for the maintenance of US Route 622 in Kanawha
County and respondent failed to maintain properly US Route 622 on the date of
this incident.
3. As a result of this incident, claimants chose to purchase four wheels for
their vehicle. However, claimants are limited to the amount of$ 159.40 for
the cost of the two wheels which were actually damaged as a result of this
incident.
4. Respondent agrees that the amount of $159.40 for the damages as put forth by
the claimants is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of US Route 622 in Kanawha County on the date of
this incident; that the negligence of respondent was the proximate cause of the
damage sustained to claimants’ vehicle; and that the amount of the damages
agreed to by the parties is fair and reasonable. Thus, claimants may make a
recovery for their loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of$ 159.40.
Award of$159.40.
OPINiON ISS UED OCTOBER 6, 2003
GLENN 0. FRAZIER, JR.
and SONDRA FRAZIER
VS.
DIVISION OF HIGHWAYS
(CC-02-493)
Claimant appeared pro Se.
Andrew Tarr, 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:
I. On November 22, 2002, claimant Glen 0. Frazier, Jr. was traveling over an
ice covered bridge on 1-79 in Big Otter, Clay County, which caused claimants’
2000 Ford F150 pick-up truck and a camper being towed by the truck to
‘jackknife” and flip over.
26 REPORTS STATE
COURT OF CLAIMS [W.Va.
2. Respondent was responsible for the maintenance of 1-79 in Clay County and
respondent failed to maintain properly 1-79 on the date of this incident.
3. As a result of this incident, claimants’ vehicle was a total loss. Claimants
sustained damages in the amount of $1,248.75 for their insurance
deductible and a tow bill.
4. Respondent agrees that the amount of$ 1,248.75 for the damages as put
forth by the claimants is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of 1-77 in Clay County on the date of this
incident; that respondent’s negligence proximately caused claimants to incur
certain expenses; and that the expenses are fair and reasonable. Thus,
claimants may make a recovery for their loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of$1,248.75.
Award of$l,248.75.
OPINION ISSUED OCTOBER 6, 2003
SONYA DUNHAM
VS.
DIVISION OF HiGHWAYS
(CC-0 1-390)
Laura R. Rose, Attorney at Law, for claimant.
Andrew Tarr, 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 October 29, 1999, claimant was traveling northbound on State and Local
Service Route 30 near Martinsburg in Berkeley County when her vehicle
encountered some gravel on the roadway causing her to lose control of her
vehicle which then struck a tree.
2. Respondent was responsible for the maintenance of State and Local Service
Route 30 in Berkeley County and respondent failed to maintain properly Route 30
on the date of this incident.
3. Respondent had been working in the area of claimant’s accident and it had
placed gravel on the berm. Traffic on the road kicked some of the loose gravel
onto the road surface. Respondent had constructive, if not actual, notice of
this condition.
4. As a result of this incident, claimant was injured. Claimant agrees to
accept
$9,000.00 as full and complete satisfaction for her claim.
5. Respondent agrees that the amount of $9,000.00 for the damages as put
forth by the claimants is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Route 30 in Berkeley County on the date of this
incident; that the negligence of respondent was the proximate cause of the
damages sustained to
W.Va.] REPORTS
STATE COURT OF CLAIMS 27
claimant; 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 $9,000.00.
Award of $9,000.00.
OPINION ISSUED OCTOBER 6, 2003
CHARLESTON PSYCHIATRIC GROUP, INC.
VS.
DIVISION OF CORRECTIONS
(CC-03-406)
Claimant appears pro Se.
Charles P. Houdyschell, Jr., Assistant
Attorney General, for respondent.
PER CUPJAM:
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 $2,804.00 for medical services rendered
to inmates in the custody of respondent at Huttonsville 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 Air/cern
Sales and Service, et al. vs. Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED OCTOBER 6, 2003
CITY OF ELKINS
VS.
DiVISiON OF CORRECTIONS
(CC-03-396)
Claimant appeared pro se.
Charles P. Houdyschell, Jr., 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 $225.00 for waste water testing performed at Huttonsville
28 REPORTS STATE
COURT OF CLAIMS [W.Va.
Correctional Center, a facility of the respondent.
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.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $225.00.
Award of $225.00.
OPINION ISSUED OCTOBER 6, 2003
POCAHONTAS MEMORIAL HOSPITAL
VS.
DIVISION OF CORRECTIONS
(CC-02-486)
Claimant appeared pro se.
Charles P. Houdyschell, Jr., 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 $1,674.14 for medical services rendered
to an inmate in the custody of respondent at Denmar 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 1-[ealth, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED OCTOBER 6, 2003
THE HEART CENTER
VS.
DIVISION OF CORRECTIONS
(CC-03-349)
Claimant appears pro Se.
Charles P. Houdyschell, Jr., 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 29
Claimant seeks payment in the amount of $39.00 for medical services rendered to
an inmate in the custody of respondent at Anthony 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 Airkern Sales and Service, et al. vs.
Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED OCTOBER 6, 2003
UNIVERSiTY HEALTH ASSOCIATES
VS.
DIVISION OF CORRECTIONS
(CC-03-337)
Claimant appears pro Se.
Charles P. Houdyschell, Jr., 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 $6,858.00 for medical services
rendered to inmates in the custody of respondent at Pruntytown Correctional
Center and Huttonsville Correctional Center, facilities ofthe 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 OCTOBER 6, 2003
KANAWHA NEPHROLOGY, INC.
VS.
DIVISION OF CORRECTIONS
(CC-03-355)
Claimant appears pro se.
Charles P. Houdyschell, Jr., Assistant Attorney General, for respondent.
30 REPORTS STATE
COURT OF CLAIMS [W.Va.
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 $1,520.00 for medical services
renderedto an inmate in the custody ofrespondent at Mount Olive Correctional
Complex, 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 OCTOBER 6, 2003
MANPOWER
VS.
DEPARTMENT OF EDUCATION
(CC-03-35 1)
Claimant appeared pro Se.
Joy M. Boiling, 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 $1,855.48 for providing temporary services to respondent. The
hourly amount exceeded the State Contract amount; 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.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of$1,855.48.
Award of $1,855.48.
OPINION ISSUED OCTOBER 6, 2003
PRIMECARE MEDICAL. INC.
VS.
DIVISION OF JUVENILE SERVICES
(CC-03-357)
Michele Grinberg, Attorney at Law, for claimant.
Barbara F. Elkins, Assistant Attorney General, for respondent.
W.Va.J REPORTS
STATE COURT OF CLAIMS 31
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 provided medical laboratory tests to the employees of the WV
Industrial Home for Youth, a facility of the respondent.
2. Respondent admits the validity of the claim, but states that the amount of
$5,700.56, rather than the amount claimed of $11,401.12, is fair
and reasonable.
3. Claimant agrees to accept $5,700.56
as full and complete compensation for
the medical laboratory tests performed on respondent’s employees.
4. Respondent agrees that the amount of damages as agreed to by claimant is
fair and reasonable and states that there were sufficient funds expired in the
appropriate fiscal year from which the invoices could have been paid.
The Court has reviewed the facts of the claim and finds that respondent is
responsible for the medical laboratory tests performed on respondent’s
employees and that the amount of damages agreed to by the parties is fair and
reasonable. Thus, claimant may make a recovery for its sustained loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $5,700.56.
Award of $5,700.56.
OPINION ISSUED OCTOBER 9, 2003
JAMES BROWN, ANGELA BROWN, CHRISTINE BROWN,
and JAMES BROWN and ANGELA BROWN as parents and natural guardians
of TASHA BROWN, an infant,
VS.
DIVISION OF HIGHWAYS
(CC-Ol-21 3)
Samuel F. Hanna, Attorney at Law, for claimant.
Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent.
GRTTT, JUDGE:
Claimants brought this action for personal injuries received by claimant James
Brown, for loss of consortium suffered by claimant Angela Brown, his wife, and
for loss of comfort suffered by his children, claimants Christine Brown and
Tasha Brown, when claimant James Brown had an accident while operating a
motorcycle on Tony’s Branch Road, also designated as State Route 3/2, near the
community of Bloomingrose in Boone County. The respondent was at all times
herein responsible for the maintenance of Tony’s Branch Road. The Court is of
the opinion to make an award in this claim for the reasons stated herein below.
The facts of this claim establish that on June 5, 1999,
claimant James Brown and his wife, claimant Angela Brown, were attending a
graduation party being given by one of Mr. Brown’s coworkers. The location
ofthe party was on Tony’s Branch Road, a twolane asphalt road which is a
dead-end road extending from W. Va. State Route 3. The claimant and his wife
arrived at the party at approximately 7:00 p.m., having driven there
32 REPORTS STATE
COURT OF CLAIMS [W.Va.
in their 1984 Chevrolet Blazer with two passengers, Mr. Brown’s brother and his
wife. Mr. Brown drove the Blazer to the party. At around 9:00 p.m., Paul Foster
and his girlfriend arrived at the party riding on Mr. Foster’s 1991 Heritage
Soft Tail Harley Davidson motorcycle. After being at the party a few minutes,
Mr. Brown asked permission to ride the motorcycle and Mr. Foster gave his
permission. Thereupon, Mr. Brown rode the motorcycle to the dead-end of Tony’s
Branch Road, tumed around and proceeded toward the intersection of Tony’s
Branch Road and W. Va. State Route 3. He turned around in an adjacent yard
prior to the intersection to proceed back to the party. On this return trip,
claimant James Brown encountered a cut made in the roadway during the installation
of two culverts beneath Tony’s Branch Road by employees of the respondent. At
the location of the cut, a depressed area had developed and the motorcycle went
into the depressed area. At that moment, claimant James Brown lost control of
the motorcycle whereupon he proceeded down the road some distance and went into
the ditch on the left side of the road, traveling some seventy (70) feet in the
ditch and then he fell from the motorcycle which pinned him on the ground. The
people in attendance at the party were informed of the accident and several of
them went to the scene, including claimant Angela Brown. They found the
claimant some ten (10) to twelve (12) feet from the motorcycle. An ambulance
was summoned to take him to the hospital in Charleston and a law enforcement
official came to the scene to perform an accident investigation. Claimant James
Brown sustained severe injuries as a result of this accident.
Claimants allege that respondent was negligent in its maintenance of Tony’s
Branch Road based upon the condition of the cut made across Tony’s Branch Road
at the time of the incident described herein above. Claimants contend that
respondent failed to remedy the depression of the cut even though respondent
had adequate notice that it posed a danger to the traveling public on Tony’s
Branch Road; that respondent failed to warn motorists of the area of the cut;
and that the work performed at the cut by respondent was not done in accordance
with proper engineering methods.
Respondent asserts that although there was a cut in Tony’s Branch Road, it did
not pose any danger to the traveling public. It further asserts that the
accident which occurred was the result of negligence on the part of the
claimant Mr. Brown in his operation of a motorcycle with which he was not
familiar.
During the hearing of this claim, several witnesses who lived on Tony’s Branch
Road testified as to the work done on the road at the location of the cut and
the depth of the cut below existing pavement level on the date of claimant Mr.
Brown’s accident. Beverly Milam, a resident of Tony’s Branch Road and a school
bus driver, testified that she is very familiar with Tony’s Branch Road since
she drives over the road on a daily basis. She stated that she made a telephone
call to personnel at respondent’s office in Rock Creek because there were
problems on a bridge in the area and with the cut on Tony’s Branch Road. After
her telephone call, employees placed gravel at the bridge and at the site of
the cut. She made a second telephone call to complain about the cut
specifically because in her opinion “it was a hazard.” She explained to the
Court that she had to stop her school bus to cross the cut in the road because
it was too deep. She described the cut as having a depth of four (4) inches, a
width of one and a half to two feet and that it crossed both lanes of the road.
She remembered that there was gravel and pavement in the cut, but the
depression at the cut continued to exist even at the time of claimant Mr.
Brown’s accident. She went to the scene of the accident on the night of June 5, 1999, and thought that the time was between 9:30 and
10:00 p.m. Another resident of Tony’s Branch Road at the time of the incident,
Angela Begler, testified that
W.Va.] REPORTS
STATE COURT OF CLAIMS 33
at the time of Mr. Brown’s accident she was familiar with the road and the cut
on Tony’s Branch Road. She stated that the cut was made by respondent about a
month before claimant Mr. Brown’s accident. She remembered that the “rut”
across the road was about one and a half to two feet wide and four to five
inches deep. She testified that she had called respondent’s office in Madison
to complain that vehicles were dragging and that somebody was going to get
hurt. She also stated that from her observations a driver had to come to a
complete stop to go across the “hole.” Since she drove a truck, her vehicle did
not drag in that area. She further testified that respondent placed more gravel
in the cut, but it did not solve the problem.
Cecil Brown, claimant James Brown’s brother and a resident of Tony’s Branch
Road at the time, testified that he made a video recording of the accident
scene on June 6, 1999, the day after the accident. The video was admitted in
evidence. He testified that the cut was made for the installation of a culvert
pipe and that gravel was placed over the pipe. He described it as a “gravel
tar” and it bounced out of the hole. He went to the accident scene shortly
after the accident where he observed his brother and it was his opinion that he
had been thrown off the motorcycle.
The owner of the motorcycle being ridden by claimant James Brown on June 5, 1999, was Paul Foster, a coworker. His motorcycle, a
1991 Harley Davidson, did not have a crash bar or a windshield. He arrived at
the party that evening around dusk and he stated that claimant James Brown
asked permission to ride his motorcycle so he let him take it for a ride. He
stated that claimant James Brown did not appear to be impaired or inebriated.
In fact he stated, “If I thought he was, you know, drunk I wouldn’t have let
him rode (sic) my bike.” He observed him riding by the site of the party and he
estimated his speed at 25 to 30
miles per hour. It was getting dark and soon thereafter an individual identified
as Shane Harper came to the party to inform the participants that “Jamie Brown
had wrecked down in the hollow.” Mr. Foster testified that he went to the
accident scene where he observed the claimant James Brown some ten to twelve
feet from the motorcycle which was laying in the ditch. It was quite dark by
that time so he could barely see the claimant James Brown who was lying on the
ground. He also testified that he had encountered the cut in the road on his
way to the party on his motorcycle. He was about twenty feet from the cut when
he saw it; he was traveling at about fifty miles per hour, but he braked his
motorcycle to about twenty-five to thirty miles per hour; he was able to
maneuver the motorcycle across the cut, but he stated that he “had a pretty
bigjolt from it.” There were no warning signs at the area of the cut. He
estimated the depth of the cut at anywhere from two to six inches with the
deeper area being in the lane over which the claimant James Brown was traveling
on his return to the party. He also stated that the accident scene is about one
mile from the location of the party.
George Milam, a former employee of the respondent and one of the employees who
worked on the cut on Tony’s Branch Road in April or May 1999, testified that in
1999 he was employed as a crew chief for respondent at the Seth office in Boone
County. He stated that Tony’s Branch Road is a paved, secondary road without
markings. He testified as to the procedure used by respondent in the
installation of the culvert on Tony’s Branch Road since he supervised the
employees during the time that two fifteen inch culverts were installed across
Tony’s Branch Road. The culverts were placed in a ditch that was forty feet in
length across the road, twenty-eight inches wide, and twentyeight to thirty
inches deep. After the culverts were placed in the ditch, crusher run limestone
was used to cover the culverts and it was tamped in place with the backhoe. He
explained that asphalt would normally be laid over the gravel after four or
five days,
34 REPORTS STATE
COURT OF CLAIMS [W.Va.
but it was not laid over the area on Tony’s Branch Road as the new supervisor
in Boone County did not give direction for this to be done. He was aware of
several complaints about the cut when the gravel settled into the ditch. He
would tell the people to call the Boone County Headquarters about their
complaints. He testified that the gravel in the cut area settled approximately
four or five inches below the level of the pavement of Tony’s Branch Road.
There were no warning signs placed at the location of this cut. He stated that
he was at the party on the evening that claimant James Brown had his accident
and that he went to the accident scene.
Claimant James Brown testified about the circumstances of his motorcycle
accident. He described driving to the party on Tony’s Branch Road on the
evening of June 5,
1999. He, his wife, his brother and
his sister-in-law went to the party together in his Chevrolet Blazer and they
arrived there at approximately 7:00 p.m. He did not eat anything since he had
eaten dinner at his own home earlier. Although he drove over the cut on Tony’s
Branch Road on the way to the party in his Blazer, he did not notice it at that
time. Although he had driven on Tony’s Branch Road on previous occasions, he
had not driven there during the time the cut existed on the road until this
evening. He did not see any warning signs about the cut as he drove by the area
on the way to the party. He stated that he had brought beer to the party and he
drank two or three beers prior to riding the motorcycle which belonged to a
coworker also attending the party. He was candid in stating that he had not
ridden on a motorcycle in some years, that he did not have a helmet on at the
time he had the accident, and that he requested Paul Foster to allow him to
take a ride on the motorcycle. He described the route of his ride on the
motorcycle as follows: he first rode to the dead-end of the hollow on Tony’s
Branch Road where he turned around; he then rode past the site of the party
toward the Route 3 intersection; he rode over the cut area on his way toward
Route 3, but he did not notice it as being a bad area; he then turned the
motorcycle around in a yard to drive back to the party when the accident occurred.
He described what occurred as follows: “...when I turned around and was coming
back in the hollow it was aggressive (referring to the cut area when the
motorcycle struck it). The bike bottomed out and I bobbled. I had my feet off
the peg[s] ‘cause I lcnowed (sic) I was going to dump this boy’s bike. I just
knowed (sic) it when I hit that. That’s the reason I had my feet up to try to
hold myself and that’s the reason that I traveled instead of stopping. I didn’t
have my feet on the brakes because it hit me so hard.” He traveled on the
motorcycle about one hundred eighty-one( 181) feet from the cut in the road to
the ditch, then seventy (70) feet in the ditch to his left. He was lying ten
(10) to twelve (12) feet from the ditch on a bank above the road. He remembers
that the motorcycle was on him when he fell from the motorcycle and he knew
that he was injured since he felt paralyzed. He stated that he remembered the
people from the party arriving at the scene and talking to them. An ambulance
arrived at the scene and he was taken to the trauma center at the General
Division of Charleston Area Medical Center in Charleston, Kanawha County.
The investigating officer for claimant James Brown’s accident was Danny
McNeely, Deputy Sheriff for the Boone County Sheriff’s Office. He received
notice of the accident on Tony’s Branch Road at approximately 9:50 p.m. and he
immediately went to the scene. When he arrived, the emergency personnel were
treating claimant James Brown so he was unable to talk to him about the circumstances
of the accident. He took measurements of the area and noted the distance from
the time Mr. Brown drove the motorcycle into the ditch to where the motorcycle
stopped seventy (70) feet as well as the distance Mr. Brown himself evidently
landed away from the motorcycle twelve (12) feet. He noted these distances on
his office report in the drawing of the accident scene.
W.Va.J REPORTS
STATE COURT OF CLAIMS 35
On his report, Deputy McNeely marked
the section for “Contributing Circumstances” of the accident on the part of the
driver, “Failure to Maintain Control.” He based this conclusion upon statements
he heard at the scene by by-standers who were making voluntary comments that
Mr. Brown was unfamiliar with riding on a motorcycle and the fact that the
motorcycle left the roadway on the opposite side of the road from the lane in
which he was traveling. He stated, “It was just obvious that he lost control of
the motorcycle or else he wouldn’t have wrecked.” The Deputy later interviewed
claimant James Brown at the hospital where he took a statement and recorded
that statement in his report as follows: “Driver states he went down the road
and turned and started back up the hollow. He states that he was not going fast
but was changing gears on the motorcycle and crossed a rough section of road
and lost control and ran in the ditch.” When Deputy McNeely was later contacted
by an investigator for respondent and they returned to the accident scene, he
measured the distance from a dark area of pavement which he assumed was the
ditch referred to as the “rough section of road” mentioned by claimant James
Brown in his statement to the area of the ditch where the motorcycle left the
paved portion of the road. This measurement was one hundred eighty-one (181) feet.
The Court first will address the issue of liability in this claim. The claimant
James Brown is an individual who was not familiar with the Harley Davidson
motorcycle he was taking for a ride on Tony’s Branch Road with which he was not
very familiar. He had driven on this stretch of road on the way to a party with
three passengers and he drove over the cut across Tony’s Branch Road created by
respondent at least a month prior to June 5, 1999. He was at the party a couple of hours during
which time he consumed two to three beers. He then requested permission to ride
on the Harley Davidson motorcycle and he drove off. It was dark by this time of
the evening (9:00 to 9:30 p.m.) and he proceeded to the dead-end of Tony’s
Branch Road where he turned around and drove back passing the location of the
party and toward the intersection of Tony’s Branch Road and State Route 3. He
crossed the cut in Tony’s Branch Road with the motorcycle on the side of the
cut that was not very deep. (The video in evidence reveals that the cut was
deeper on one side of the road than the other and this fact was borne out by
statements from the various witnesses.) He thereupon proceeded a short distance
further (maybe a quarter of a mile or a little more according to his testimony)
and turned around on the motorcycle to return to the party concluding his ride
on the motorcycle. On this return trip he again came to the cut across the
roadway only the motorcycle struck a deeper section of the cut (anywhere from
four to six inches deep according to testimony from witnesses) and the
motorcycle “bobbled” him. His feet were off the pegs and he tried to gain
control of the motorcycle which was a natural reaction. He did not want the
motorcycle to fall over with him and get damaged since it was not his
motorcycle. Thus, a driver on a strange motorcycle was being propelled down the
road while he tried to gain control. It is logical to believe that he twisted
the throttle for gas control which would explain the distance he went of some
one hundred eighty-one (181) feet before the motorcycle went into the ditch on
his left across the road from his lane of travel. The motorcycle then traveled
seventy (70) feet before turning over and the claimant James Brown either fell
beneath it or was thrown from it. (The testimony differed among the witnesses.)
The motorcycle was twelve (12) feet from him, perhaps because after the
accident, the first people at the scene moved it off of him and parked it along
the side of the road.
Taking into consideration all of the evidence in this claim, the Court
concludes that the cut made by respondent across Tony’s Branch Road was the
proximate cause of
36
REPORTS STATE COURT OF CLAIMS
[W.Va.
the accident
which is the subject matter of this claim. The testimony from witnesses in this
claim establishes that respondent created a hazard on Tony’s Branch Road when it failed to
pave the cut area in a timely manner or to place warning signs or to momtor the
cut with the knowledge that the gravel placed in the cut would naturally
settle. A settlement of anywhere from two to six inches is not unusual for a
cut made across the entire width of a road. Traffic proceeding over the gravel
will put ruts in the gravel. The expert witness for the claimants, Victor
Dozzi, explained to the Court that limestone crusher run (the kind of gravel
placed by respondent over the culverts installed in the cut area on Tony’s
Branch Road) is a mixture of one and a quarter (1 1/4) inch limestone with
smaller particles so that the material actually binds together when it is
tamped down. He was of the opinion that the material should have been placed in
layers and tamped down layer by layer. The Court agrees that this is probably
the preferred engineering technique, but the Court also recognizes that this is
an impractical requirement for respondent’s employees on small cuts such as the
one herein. However, nothing in the record absolves respondent of its duty to
maintain a cut such as this one by laying asphalt over the gravel in a timely
manner, or in the alternative, monitoring the settlement of the gravel so that
additional gravel is placed to prevent a hazardous condition for travelers
using the road. At the least, respondent could have placed a warning sign to
alert drivers not familiar with the area about the uneven surface or dip at the
cut.
In previous claims considered by this Court, the Court found negligence on the
part of the respondent in claims where a cut was made by respondent across the
width of a roadway or part of the roadway and the evidence established that
respondent failed to maintain the area such that it was maintained at the level
of the existing pavement. (See Hale v.
Dept. of Highways 11 Ct. Cl. 93
(1976), Withrow v. Dept. ofHighways 17 Ct. Cl. 47 (1987), Boyle v. Division of Highways 19
Ct. Cl. 103 (1992).) Thus, the conclusion of the Court herein is that
respondent was negligent in its maintenance of Tony’s Branch Road and this
decision is in accordance with previous decisions. The issue of liability
having been established by claimants in this action, the Court must now
consider the comparative negligence of claimant James Brown in his operation of
the motorcycle, if any.
The Court has determined that claimant James Brown must bear some
responsibility for the accident which occurred on Tony’s Branch Road resulting
in his injuries. He was riding an unfamiliar motorcycle and he should have been
more aware of his surroundings as he rode on Tony’s Branch Road. He did not
wear a helmet as required by law in our State. W.Va. Code 17C-15-44(a) states
as follows: “No person shall operate ... any
motorcycle or motor-driven cycle unless the person is wearing securely fastened
on his or her head by either a neck or chin strap a protective helmet designed
to deflect blows, resist penetration and spread impact forces. ...“ This violation of the law meant to protect operators of
motorcycles must be taken into consideration by the Court when calculating any
measure of comparative negligence. However, the Court also is of the opinion
that his comparative negligence does not approach the “equal to or greater
than” threshold which would result in a denial of an award. The Court is of the
opinion that claimant James Brown bears thirty-three and one-third percent (33
½%) of the responsibility for the accident herein and the injuries resulting
therefrom; therefore, the award to him for his injuries will be reduced by this
percentage.
Claimant James Brown, 33 years of age at the time of the accident and now 38
years of age, received serious personal injuries in this motorcycle accident.
His current treating physician, Dr. Constantino Y. Amores, a neurosurgeon,
testified that claimant James Brown sustained a cervical injury that resulted
into a temporary paralysis. He was
W.Va.] REPORTS
STATE COURT OF CLAIMS 37
in the hospital from June 6, 1999, to June 11, 1999, and then in rehabilitation
from that date to June 18, 1999. He was discharged after receiving
rehabilitation during his initial hospital treatment. He wore a Minerva collar
which is stiffer in nature than the normal collar used in neck injury patients.
He suffered a slight hemiation of the disc between two vertebrae in his neck.
He also had a maxillary fracture for which he was treated by a plastic surgeon.
Dr. Amores testified that he last saw claimant James Brown in February and
April 2002. Mr. Brown had complaints about the pain in his neck area which is
subjective in nature, but according to Dr. Amores the complaints were credible.
He stated that his prognosis for Mr. Brown’s physical condition from a
neurological point of view was good.
Claimant James Brown described his injuries during the hearing. He suffered a
neck injury as mentioned herein above, injury to his front teeth and to his
face, as well as a laceration to his chest which required stitches, and a four
to six inch cut on the left side of his knee cap on his right leg. His medical
bills totaled $38,733.12 of which amount he paid $280.16. He is a truck driver
for a coal hauling company. He suffers with pain which is continuing in nature
and which has affected his ability to perform the normal activities in which he
engaged prior to the accident. His life style has changed as a result of his
injuries. He is not able to enjoy the same sports activities such as hunting,
fishing, volley ball games, badminton games, etc. He has been unable to play
with his two children as he once did. He stated that the pain he experiences is
“severe” at least once a week. He lost work from June 5, 1999, to
December 28, 1999, when he returned to work for light work duty only. He
incurred a loss of wages in the amount of $17,744.00 during 1999 as a result of
the motorcycle accident.
Claimant Angela Brown testified about the differences in her husband’s life
style. She substantiated his testimony about his inability to enjoy sports
activities or interact with his children as he had prior to the motorcycle
accident. She also stated that she observes him when he experiences pain after
driving a truck all day. She was candid in her testimony about her observations
of her husband.
The Court is of the opinion that claimant James Brown may recover $280.16 in
medical expenses, $17,744.00 in lost wages, and $98,000.00 for his pain and
suffering in the past and the future for a total amount of damages of $116,024.16
which amount is reduced by thirty three and one-third percent (33 1/3%) for his comparative negligence in accordance with the
decision ofthe Court. The Court makes an award to ci aimant Angela Brown in the
amount of $5,000.00. The Court declines to make awards to claimants Christine
Brown and Tasha Brown since no damages are in evidence.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court makes an award to claimant James Brown in the amount of
$77,353.31, and an award to Angela Brown in the amount of $5,000.00.
Award to James Brown: $77,353.31.
Award to Angela Brown: $5,000.00.
OPINION ISSUED OCTOBER 30, 2003
MELISSA SHAFFER
VS.
DIVISION OF HIGHWAYS
(CC-00-490)
38 REPORTS STATE
COURT OF CLAIMS [W.Va.
Shannon M. Bland, Attorney at Law, for claimant.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for respondent.
PER CUR1AM:
Claimant brought this action for personal injuries and damage to her vehicle
which occurred when she was operating her vehicle on the Route 60 bridge that
crosses Coal River in St. Albans, Kanawha County, and a portion of the pavement
gave way creating a large hole which the vehicle struck. Respondent stipulated
to liability in this claim. Therefore, the only issue this Court shall address
is the issue of damages.
The incident giving rise to this claim occurred on August 1, 2000, at
approximately 1. :00 p.m. Claimant, Melissa Shaffer, was traveling westbound on
Route 60 with her mother and two children as passengers. She was traveling in
the left lane as she crossed the bridge over Coal River. Suddenly, a large
portion of the pavement gave way as her vehicle crossed it. A large hole was
created where the pavement gave way causing the passenger side tires to fall
into the hole. The impact jerked claimant to the right when the right front
tire struck the hole. She was able to hold onto the steering wheel as the back
right tire struck the hole. However, this impact caused her to be thrown to the
back and to the right. Claimant was able to maneuver her vehicle out ofthe hole
and off the bridge. She drove the vehicle to the Amandaville side of the bridge
and parked it on the side of Route 60. Fortunately, claimant’s two children and
her mother were not injured in this incident. A friend of claimant’s mother
happened to be driving home from work when he observed claimant’s vehicle on
the side of the road. He took the children and claimant’s mother home while
claimant remained at the scene with the automobile. She called the police and Hensley’s
Towing Company, who arrived on the scene. In addition, claimant called Grover
Call, a friend. According to the claimant, the police arrived at the scene and
completed a report of the incident and observed the hole in the bridge.
Claimant’s vehicle had to be towed from the scene due to the damage to the two
tires. Mr. Call drove claimant to respondent’s local office in St. Albans,
where he went inside to discuss what could be done to have claimant’s vehicle
repaired. As a result of the impact, both right side wheels and tires had to be
replaced. In addition, claimant’s vehicle had to have a four wheel alignment.
Claimant submitted an estimate for the damage to her vehicle and the towing
bill in the amount of $645.92. However, claimant had automobile insurance
coverage at the time of this incident which covered all but the amount of the
deductible in the amount of $250.00. Thus, claimant may only recover the amount
of her deductible as an out-of-pocket expense for the damage to her vehicle.
Claimant arrived at her home between 6:00 p.m. and 7:00 p.m. later that same
evening. She testified that once she got home she sat down to rest and she then
felt tired and drained from the event. She stated that she took two Tylenols
and went to bed. According to claimant, when she woke up the next morning she
felt stiff and sore. Specifically, she stated that she had pain in her right
arm and shoulder, as well as her neck and mid-back. Claimant testified that she
had not had this type of pain prior to this incident. Seven days later on
August 8, 2000, claimant went to her family physician, Dr. Molano in Hurricane,
Putnam County. She was complaining of back and neck pain as well as headaches.
Dr. Molano prescribed pain medication and a muscle relaxant which she took. However,
according to the claimant these medications made her feel tired all the time.
Claimant stated that she continued to have pain and went to see Dr. Molano
again on August 24, 2000, for the same medical issues as before which were neck
pain, back pain, shoulder pain and headaches. Claimant testified that on
September 1, 2000,
W.Va.J REPORTS
STATE COURT OF CLAIMS 39
she contacted Dr. Harold L. Casto regarding her condition.
Dr. Casto, a licensed chiropractor in the State of West Virginia, testified as
an expert witness in the field of chiropractic medicine at the hearing of this
matter. Dr. Casto testified that he treated claimant for injuries she sustained
in the incident at issue in this claim. Her first visit was on September 1,
2000, when she initially complained of mid-back pain and stifibess along with
intercostal pain, which is pain in the rib area located laterally from the
spinal area. Claimant also complained of headaches, pain in the right side of
her neck, and bilateral shoulder tightness and pressure. Dr. Casto performed a
medical evaluation including radiographs of the cervical and dorsal spinal
areas. These tests indicated that claimant suffered from cervical and thoracic
sprain/strain type injuries. Dr. Casto described these sprain/strain injuries
as the stretching or tearing of the soft tissue structures such as ligaments
and tendons. In addition, Dr. Casto performed a comprehensive examination on
claimant on September 7, 2000, which entailed the observation of claimant’s
posture, and various orthopedic tests. As a result of these examinations, Dr.
Casto determined that claimant had traumatically induced scoliosis as well as
muscle spasms, tenderness, and tightness it’ her mid-back area. She also
e,thibited muscle irritation, tightness, and splinting during the foraminal
impression test which checked her range of motion. Claimant also had a
decreased range of motion in the cervical and dorsal spinal areas as well as
the thoracic region of her back. Dr. Casto’s diagnosis as to claimant’s condition
on September 7, 2000, was cervical sprain/strain, thoracic sprain/strain,
cervical brachial neuralgia, which is shoulder pain, and post traumatic
headaches. Further, he testified that x-rays of the cervical area demonstrated
that claimant had lost the normal forward curve of her neck, which will cause
claimant’s neck not to be as strong as it was prior to the injury. Dr. Casto
testified to a reasonable degree of medical certainty that claimant’s injuries
were caused by the traumatic experience when she was whipped around in her
vehicle during the vehicular accident on August 1, 2000.
After diagnosing claimant’s injuries and condition, Dr. Casto established a
treatment plan for claimant, which included multiple “physiotherapeutical
modalities.” Dr. Casto used moist heat packs and ultrasonation to provide deep
heating therapy. He also used electrical muscle stimulation and performed
manipulative therapy which involves the placing ofhis hands on the claimant’s
injured areas to move the bones closer to their normal position. According to
Dr. Casto, claimant did not respond to the first series of treatments as well
as he had expected. He attributes this in part to the fact that claimant was
unable to come to her appointments on a daily basis due to her work schedule.
Dr. Casto stated that he reexamined the claimant on October 24, 2000, at which
time he noted that claimant’s condition was responding in a positive manner to
treatment. Specifically, he stated that the pain in her neck and mid-back had
decreased and that her range of motion had improved. At this point in her
treatment, Dr. Casto decided to not place claimant on a regular treatment
program, but instead, he treated her on a basis that would not conflict with
her work schedule. Claimant continued to receive treatment from Dr. Casto
through 2001. Dr. Casto testified that claimant continued to complain of
mid-back pain and intercostal pain. Claimant also informed Dr. Casto that this
pain was interfering with her work duties. Therefore, he ordered that claimant
have an MRI (Magnetic Resource Imaging) performed on February 5,2001, to rule
out various orthopedic and neurological problems. Claimant had an MRI performed
at Putnam General Hospital. The MRI was negative for any disc hemiation. Given
that the MRI was negative, Dr. Casto testified that in his opinion there was no
need at the time of his last examination for claimant to have surgery on her
neck or back because there were no
40 REPORTS STATE
COURT OF CLAIMS [W.Va.
problems that an orthopedic surgeon or neurosurgeon could operate on.
The last time Dr. Casto treated claimant was on November 19, 2002. Dr. Casto
testified that according to his records claimant was still having pain in her
right shoulder and pain and numbness throughout her right arm and hand. She
complained ofmoderate to severe muscle spasms on the right side of her neck, as
well as moderate to severe muscle spasms in her mid-back. As of November 19,
2002, Dr. Casto, noted that claimant’s physical condition had not changed overall
and he directed her to come in on an as needed basis. Dr. Casto and claimant
agreed that claimant’s work schedule made it difficult for her to come in on a
regular basis. Dr. Casto testified that claimant’s injuries are chronic in
nature. Dr. Casto testified that a chronic injury is one where after a three
month period a person is still having pain and all healing that is going to
take place has already taken place. He stated that a chronic condition such as
claimant’s will not be resolved as easily as an acute injury. It is Dr. Casto’s
opinion, based upon a reasonable degree ofmedical certainty, that claimant’s
injuries are chronic and permanent in nature. His prognosis for claimant is
that these problems are permanent in nature and will be with her for the rest
of her life.
Claimant incurred medical expenses as a result of the injuries sustained in
this incident. Claimant visited Dr. Molano on two different occasions as a
result of this incident. She incurred medical bills from these visits to Dr.
Molano’s office in the amount of$ 130.00. However, claimant had medical payment
insurance coverage through her automobile insurance policy with a policy limit
of $ 5,000.001. The automobile insurance policy paid a total of $130.00 to Dr.
Molano. Claimant incurred a total of $10,335.00 in medical expenses as a result
of treatment at Dr. Casto’ s office, beginning on September 1, 2000, and
continuing on a fairly regular basis until October ii, 2001, as well as
approximately seven visits in 2002. In addition, claimant incurred an expense
at Putnam General Hospital for the MRI in the amount of $1,307.50 and an
expense of $304.00 from Radiology, Inc., for reading the MRI. Therefore,
claimant incurred a total of $12,076.50 in medical expenses. Claimant had
$5,000.00 of medical payment insurance coverage available as a collateral
source which will be deducted from the total award of medical expenses. Thus,
claimant’s total recovery for medical expenses is $7,076.50 and her total of
special damages including the $250.00 insurance deductible for the property
damage is $7,326.50.
Claimant testified that she continues to suffer from back pain, shoulder pain
and numbness, and headaches. She testified that she did not have any of these
problems pnor to this incident. According to claimant, her daily activities
have been affected as a result of this pam including her ability to perform her
duties at work. She stated that the pain irritates her while performing certain
daily activities and that she has to stop doing whatever that activity may be
that causes her pain or discomfort. Claimant stated that, she was able to work
the drive-thru at Wendy’s, which was one of her duties as the Assistant
Manager, but she is no longer able to do so. She is unable to play with her
children as she did before. She stated that she used to hold her three year old
daughter often but she does not do that because of the pain. In addition, she
no longer plays ball
Although claimant had $5,000.00 in health coverage through her
automobile insurance policy, she chose not to take advantage of this resource.
This Court has held that any insurance benefits available to a claimant
constitutes a
collateral source whether or not claimant accessed the insurance coverage
available.
W.Va.] REPORTS
STATE COURT OF CLAIMS 41
with her five year old as she used to before the incident. Based upon the
testimony regarding claimant’s injuries, the pain and suffering associated with
them, and the effects these injuries have had on her daily life and
recreational activities, the Court has determined that claimant should be
granted an award in the amount of$75,000.00 for the effect upon her life now
and in the future.
Therefore, in view of the foregoing, the Court is of the opinion to and does
hereby make an award to claimant in the amount of $82,326.50.
Award of $82,326.50.
OPiNION ISSUED OCTOBER 30, 2003
GARY L. WILSON AND DIANE L. WILSON
VS.
DIVISION OF HIGHWAYS
(CC-03- 172)
Claimants appeared pro se.
Andrew Tarr, 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 20, 2003, claimant, Gary L. Wilson, was traveling on Route 27 in
Brooke County when his vehicle struck a large hole in the road damaging a tire.
2. Respondent was responsible for the maintenance of Route 27 in Brooke County
and respondent failed to maintain properly Route 27 on the date of this
incident.
3. As a result of this incident, claimants’ vehicle sustained damages in the
amount of $51.40.
4. Respondent agrees that the amount of $51.40 for the damages as put forth by
the claimants is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Route 27 in Brooke County on the date of this
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 loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $51.40.
Award of $51.40.
OPINION ISSUED OCTOBER 30, 2003
AMANDA BELL
VS.
42 REPORTS STATE
COURT OF CLAIMS [W.Va.
DIVISION OF HIGHWAYS
(CC-0l-375)
Eric M. Gordon, Attorney at Law, for claimant.
Andrew 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:
I. On October 12, 1999, claimant was crossing Alternate Route 2, also known as
Main Street, near its intersection with I 4tI Street in Wheeling, Ohio County,
when she stepped into a hole causing her to fall.
2. Respondent was responsible for the maintenance of Alternate Route 2, in
Wheeling, Ohio County and respondent failed to maintain properly Alternate
Route 2 on the date of this incident.
3. As a result of this incident, claimant was injured and incurred medical
bills in the amount of $614.50.
4. Respondent agrees that the amount of $614.50
for medical bills as put forth by the
claimant is fair and reasonable. In addition, respondent has stipulated that
claimant be paid $885.50 for pain and suffering.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Alternate Route 2 in Ohio County on the date of
this incident; that the negligence of .respondent was the proximate cause of
claimant’s injuries; 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 $1,500.00.
Award of$l,500.00.
OPINION ISS UED OCTOBER 30, 2003
VERNON W. GRANT
VS.
DIVISION OF HIGHWAYS
(CC-03-099)
Claimant appeared pro
Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage to his 1992 Chevrolet Geo Tracker which
occurred when his vehicle struck a tree in the road while traveling east on
Route 9/5, also known locally as Mission Road, approximately seven
miles east of Charles
W.Va.] REPORTS
STATE COURT OF CLAIMS 43
Town, Jefferson County. The Court is of the opinion to make an award in this
claim for the reasons stated more fully below.
The incident giving rise to this claim occurred on November 1, 2002, at
approximately 7:30 a.m. The weather was clear and the road surface was dry.
Claimant Vernon Grant was traveling from his home at Haipers Ferry to
Cumberland, Maryland. As he was traveling on Route 9/5 at approximately
thirty-five to forty miles per hour, he approached a rise in the road and saw a
tree suddenly fall onto the roadway in front of his vehicle. He stated that he
immediately applied the brakes to avoid a serious collision with the tree. He
also was concerned that his vehicle might knock the tree into oncoming vehicles.
Claimant’s vehicle struck the tree with enough force to knock the base of the
tree off the highway leaving bark and debris all over the road. Fortunately,
claimant was not injured, but his vehicle could not be driven from the scene
and it had to be towed. Claimant estimates that there were seven or eight
vehicles behind him at the time of this incident. Fortunately, none was
involved in the collision. Claimant estimates that he was approximately fifteen
to eighteen yards from the tree when he first saw it falling and that the root
system of the tree was initially located approximately seven feet from the edge
of the road. He estimated the tree was thirty-seven feet long and approximately
twenty- two inches at the base. Claimant travels this portion of Route 9/5 at least five days a week and he had not noticed this
tree in particular as presenting a potential hazard to the traveling public.
However, after the incident he noted that the tree was dead. He also stated
that the top portion of the tree had been cut by someone prior to the incident
but he is not sure when. Further, claimant testified that there was a “gutter
cut” into the bank where this tree fell from. He testified that this “gutter
cut” was made by respondent to help the water drain away from the highway. He
also testified that while the cut was not made into the deep root system, it
was approximately two feet from the base of the tree. He testified that when
this tree fell, it did not take the root system with it. According to claimant,
the tree broke off from its root system. As a result of this incident, claimant
incurred towing expenses in the amount of $95.00 and collision repairs in the
amount of $944.35. Claimant did not have insurance coverage to cover any of
this loss and seeks an award of$ 1,039.35.
Claimant contends that respondent knew or should have known that this tree was
dead and taken the proper action to remedy this hazard to the traveling public.
Respondent’s position is that it did not have notice that this tree was dead or
that it presented a hazardous risk to the traveling public. Respondent also
states that the tree was not on its right of way, and thus, it is not
responsible for claimant’s accident.
Craig R. Thompson, assistant supervisor for respondent in Jefferson County, testified
that he is responsible forthe day-to-day operations and routine maintenance.
Mr. Thompson is responsible for maintaining Route 9/5 and is familiar with the
location where this incident occurred. He described the portion of Route 9/5 as
a winding, two- lane road approximately twenty-two to twenty- four feet wide.
He testified that the respondent’s right of way at this location is fifteen
feet from the center line in each direction for a total of thirty feet. Mr.
Thompson stated that he believes he observed the tree which claimant’s vehicle
struck laying in the ditch at the side of the road. He cannot be certain the
tree he saw was the same tree; however, the location of the tree coincides with
claimant’s description of the accident scene. He stated that the tree was forty
feet long and obviously dead. He also stated that the whole tree had fallen
including the roots. According to Mr. Thompson’s measurements, the distance
between the center line of the
44 REPORTS STATE
COURT OF CLAIMS [W.Va.
highway and the line of trees on the side of the road where this tree
supposedly fell from is eighteen feet. However, he admits that he has no way of
establishing exactly where the tree fell from nor can he testify that this was
the actual tree at issue.
ft is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety ofmotorists on its roads and highways. Adkins
v. Sims, 46 S.E.2d 811 (W.Va. 1947). To hold respondent liable, claimant
must establish by a preponderance of the evidence that the respondent had
actual or constructive notice of the defect in question and a reasonable amount
of time to take corrective action. Chapman v. Dept. of Highways 16 Ct.
Cl. 103 (1986); Pritt v. Dept. of Hi ghways, 16 Ct. Cl. 8(1985). With
regard to tree fall claims, the general rule this Court has adopted is that if
a tree is dead and poses an apparent risk, then the respondent may be held
liable. However, when a healthy tree falls and causes property damage as a
result of a storm, the Court has held that there is insufficient evidence of
negligence upon which to justify an award. Wiles v. Div. offlighways, 22
Ct. Cl. 170 (1999); Gerritsen v. Dept. ofHighways, 16 Ct. Cl. 85 (1986).
The Court has also held that respondent may have a duty to remove dangerous
trees and tree limbs that are not on the respondent’s right of way especially
where the tree or tree limb is dead. Newkirkv. Div. of Highways 20 Ct.
Cl. 18(1993).
In the present claim, the evidence is not clear as to whether the tree was on
respondent’s right of way before it fell. However, both parties agree that the
tree claimant’s vehicle struck was dead. The evidence also established that
this was a very large tree and regardless of whether or not it was on
respondent’s right of way, it was very close to it, and clearly presented a
risk to the traveling public given that it fell on the highway. The fact that
this was a large tree, that it was close enough to the highway to present a
risk to the traveling public, that it was dead, and that respondent’s employees
had performed a ditching operation in the vicinity of the tree, leads the Court
to conclude that respondent had at least constructive notice of the tree and
its potential to be a hazard to the traveling public. Respondent could have
remedied this situation by cutting down the dead tree prior to this incident,
but it failed to do so in a timely manner. While the Court is not saying that
respondent is responsible for every tree that falls near a highway, the unique
set of circumstances in this particular claim requires the Court to conclude
that respondent is liable for the damages to claimant’s vehicle.
Accordingly, the Court makes an award to claimant in the amount of$ 1,039.35.
Award of $1,039.35.
OPINION ISSUED OCTOBER 30, 2003
JAMES E. NELSON and CHARLEEN A. NELSON
VS.
DIViSION OF HIGHWAYS
(CC-03-0 15)
Claimants appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
W.Va.] REPORTS
STATE COURT OF CLAIMS 45
PER CUEJAM:
Claimants brought this action for damage to their vehicle which occurred when
claimant James Nelson was operating their vehicle on U.S. Route 19 near
Summersville, in Nicholas County, and the vehicle struck an object in the road.
Respondent was responsible at all times herein for the maintenance of U.S.
Route 19. The Court is of the opinion to deny this claim for the reasons set
forth below.
The incident giving rise to this claim occurred on January 2, 2003, at
approximately 3:00 a.m. Claimants were traveling from their home in Erie,
Pennsylvania, to Florida. James Nelson was driving the vehicle and Charleen
Nelson was the front seat passenger. It was raining and foggy. At the location
of this incident, U.S. Route 19 is a four-lane, divided highway with two lanes
going in each direction. Claimant Mr. Nelson was traveling in the left lane
approximately five miles north of Summersville when suddenly he saw what
appeared to be a piece of metal in the road in front of the vehicle. He did not
see the object until the vehicle was almost upon it. He was unable to maneuver
the vehicle to avoid striking the object. After the tires struck the object,
claimants thought that the tires were all right and, thus, continued to travel.
However, approximately fifteen to twenty minutes later they noticed that the
back left side tire was flat. Mr. Nelson drove the vehicle to the berm of the
road to change the tire. While changing the tire, a courtesy patrol driver
noticed claimants predicament and stopped to give assistance. At this time, the
courtesy patrol driver noticed that claimants’ front tire was also flat. The
vehicle had to be towed to a local repair shop where the claimants waited until
the repair shop opened later that morning. According to the claimants, the
courtesy patrol driver informed them that someone kiiocked a sign down on U.S.
Route 19. Mrs. Nelson testified that a courtesy patrol driver stated that the
sign that was knocked down was metal. In addition, the claimants testified that
the object which their vehicle struck was metal. However, Mr. Nelson could not
testify as to whether or not the object their vehicle struck was a metal road
sign. Claimants were unable to provide any independent information, other than
the courtesy patrol driver’s statement, about the nature ofthe object which
their vehicle struck. Further, claimants did not know how long the object had
been in the road. Claimants had to purchase two new left side tires as a
result of this incident. Claimants submitted a repair bill for the two tires
which were $170.55 plus the towing charge of$46.00. Thus, claimants seek
a total award of $216.55 for the damage incurred.
Claimants contend that respondent knew or should have known that there was an
object in the road and that it presented a hazardous condition to the traveling
public.
Respondent did not present any witnesses or testimony in this claim.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its roads and highways. Adkins v.
Sims, 46 S.E.2d 81 (W.Va.1947). To hold respondent liable, claimants must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman v. Dept. offlighways, 16 Ct. Cl.
103 (1986); Pritt v. Dept. ofHighways, 16 Ct. Cl. 8 (1995).
In the present claim, the claimants failed to establish by a preponderance
of the evidence that respondent had notice of the object in the road. Claimants
did not produce any independent testimony or evidence that the object their
vehicle struck was one of respondent’s road signs. The only evidence claimants
presented indicating that the object
46 REPORTS STATE
COURT OF CLAIMS [W.Va.
was one of respondent’s road signs was an out of court statement made by a
courtesy patrol driver. This is inadmissible hearsay under the W. V. Rules ofEvidence, Rule 801(c), which states “Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.” In this claim, claimants offered
into evidence statements made by one or two courtesy patrol drivers that the
respondent had a road sign knocked down on U.S. Route 19. These statements were
made out of court, and were offered by the claimants to prove the “truth of the
matter asserted”, which is that the object their vehicle struck was one of
respondent’s road signs. The reason for this rule is that hearsay is generally
considered to be untrustworthy because the person who made the statement is not
available to be cross-examined by the respondent concerning the accuracy of the
statement. State v. Browning, 199 W.Va. 417, 485 S.E.2d 1(1997). To allow such
statements to be introduced into evidence would be unfair to the respondent.
Even if the object was a road sign, claimants failed to establish that
respondent had notice and a reasonable amount of time to remove the object in
the road. Further, this Court has consistently held that an award cannot be
based upon mere speculation. Mooney v.
Dept. of Highways, 16 Ct. Cl. 84
(1986); Phares v. Division of Highways, 21 Ct. Cl. 92 (1996). While the
Court is sympathetic to the claimants for the damage to their vehicle and
inconvenience, it would be mere speculation for the Court to suggest what this
object was or where it came from.
Therefore, in view of the foregoing, the Court is of the opinion to and does
deny this claim.
Claim disallowed.
OPINION ISSUED OCTOBER 30, 2003
SANDRA SUE BEARD
VS.
DIVISION OF HIGHWAYS
(CC-03-425)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CUR1AM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant seeks $102.00 for damage to her vehicle that occurred on the exit ramp
of Interstate Route 81 located at or near Inwood, Berkeley County.
In its Answer, respondent admits the validity of the claim and that the amount
is fair and reasonable. The Court is aware that respondent does not have a
fiscal method for paying claims of this nature; therefore, the claim has been
submitted to this Court for detemiination.
In view of the foregoing, the Court is of the opinion to and does make an award
W.Va.] REPORTS
STATE COURT OF CLAIMS 47
to claimant in the amount of$ 102.00.
Award of$ 102.00.
OPINION ISS UED OCTOBER 30, 2003
GARY LEE HJSAM and DEBORAH K. HISAM
VS.
DIVISION OF HIGHWAYS
(CC-02-392)
Claimants appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimants brought this action for damage to their vehicle which occurred when
claimant Deborah Hisam was operating their vehicle on State Route 2 near
Sistersville in Tyler County and a large rock fell from a hillside and struck
their vehicle. Respondent was responsible at all times herein for the
maintenance of State Route 2 in Tyler County. The Court is of the opinion to
deny this claim for the reasons set forth more fully below.
The incident giving rise to this claim occurred on September 1, 2002, at
approximately 2:20 p.m. Claimant Deborah Hisam was driving a 1998 Pontiac Trans
Sport. Claimants’ son was the front seat passenger and their daughter and her
friend were seated in the back seat. Mrs. Hisam was traveling north on State
Route 2 towards New Martinsville. State Route 2 at this location is a blacktop,
two-lane road. According to Mrs. Hisam, there is a three to four foot berm
between the edge of the road and the rocky hillside, which is on the right side
of the northbound lane of travel. A river is on the left side of the northbound
lane. Mrs. Hisam stated that the road surface was dry and the weather was
clear. She was drivingjust north of Sistersville when suddenly and without
waming she saw a large amount of dirt falling from the hillside onto the
vehicle. This was immediately followed by a large rock which struck the
vehicle. She stated that the rock was a “four wheeler” sized “boulder” and that
it struck the front passenger side of the vehicle causing damage. In addition,
the passenger side window was knocked out and the front of the vehicle suffered
damage as well. Fortunately, there were no personal injuries to claimant or her
passengers. Mrs. Hisam testified that she did not see the rock until it struck
the vehicle, and that she had no time to react to avoid the rock. She also
testified that the last time she traveled this portion of road was
approximately one week prior to this incident. Further, she stated that “every
time” she goes by this area she has observed rocks along the side of the road
which she believes were pushed off the road at various times. According to Mrs.
Hisam, there are frequent rock slides along State Route 2 for miles. Claimants
have full insurance coverage on this vehicle which covered all this damage but
for $250.00. the deductible portion of their insurance.
Claimants assert that respondent’s knew or should have known that there was a
rock fall hazard at this location and it should have taken adequate measures to
prevent the rocks from reaching the road.
Respondent contends that it had no notice of this rock fall and that it had
erected
48 REPORTS STATE
COURT OF CLAIMS [W.Va.
“Falling Rock” warning signs near the location of this incident to warn the
traveling public.
Bradley Crawford the County Highway Administrator II for Tyler County at the
time of this incident, is responsible for overseeing all road maintenance in
Tyler County including the portion of State Route 2 at issue in this claim. Mr.
Crawford is familiar with the location of this incident. He testified that
State Route 2 at this location is a two- lane road with a berm that varies from
three feet to eight feet at particular locations. He also described this area
as a known rock fall location. According to Mr. Crawford, respondent has
erected “Falling Rock” warning signs near this location to warn the traveling
public. He testified that there is one warning sign just north of Sistersville
for the northbound traffic and another warning sign is located approximately
one mile north of it for southbound traffic. He also stated that the two signs
have been present for several years. Further, he stated that the northbound
warning sign is just south of the location of this incident, and that he is
certain that Mrs. 1-lisam would have driven past it on the date ofthis
incident. In addition, Mr. Crawford testified that respondent had no prior
notice or warning about this rock fall and it responded to the scene as soon as
it received notice and cleared the rocks and debris from the road.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its roads and highways. Adkins v. Sims, 46 S.E.2d 81 (W.Va. 1947). The Court has consistently held that the
unexplained falling of a rock or rock debris on the road surface is
insufficient to justify an award. Mitchell
v. Division of Hi ghways, 21 Ct. Cl.
91 (1996); Hammond v. 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 amount of time to take suitable action to protect
motorists. Alkire v. Division of Highways, 21 Ct. Cl. 179 (1997).
In the present claim, claimants failed to establish that respondent did not
take adequate measures to protect the safety of the traveling public at the
location of this incident on State Route 2. Respondent had erected “Falling
Rock” warning signs to warn the traveling public of the potential of rock falls
at this location, and respondent responded to the scene in a timely fashion to
clear the road. The evidence also established that Mrs. Hisam was aware of rock
falls in the area and that she must have driven past the warning sign that was
located prior to the accident site. While the Court is sympathetic to
claimants’ plight, there is no evidence of negligence on the part of respondent
upon which to base an award.
Therefore, in view of the foregoing, the Court is of the opinion to and does
deny this claim.
Claim disallowed.
OPINION ISSUED OCTOBER 30, 2003
BETTY SHREVE
VS.
DIVISION OF HIGHWAYS
(CC-02-457)
W.Va.] REPORTS
STATE COURT OF CLAIMS 49
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant, Betty Shreve, brought this action for damage to her vehicle which
occurred when she was traveling on County Route 9 in Wetzel County, and the
vehicle struck a hole on the edge of the road. Respondent was responsible at
all times herein for the maintenance of County Route 9 in Wetzel County. The
Court is of the opinion to make an award in this claim for the reasons set
forth below.
The incident giving rise to this claim occurred on October 11, 2002, some time
in the afternoon. Claimant was traveling east on County Route 9, also referred
to as Sugar Run Road, in her 1988 Chevrolet SlO pickup truck. Claimant’s
husband and grandson were passengers in the vehicle with her. She was on her
way to New Martinsville for a doctor’s appointment. Claimant was approximately
four miles from Littleton in Wetzel County when she observed an oncoming
vehicle traveling at a high rate of speed. She estimates that the oncoming
vehicle was traveling approximately fifty miles per hour while claimant was
traveling approximately thirty miles per hour. As the vehicle approached,
claimant realized that the oncoming vehicle was drifting across the center of
the road into her lane of travel and claimant was forced to maneuver her
vehicle to the berm of the road. When she did so, the front passenger side tire
struck a large hole. She described the impact as forceful. She also stated that
she had a difficult time driving the vehicle out of the hole because the tire
was stuck. The impact burst the tire and bent the wheel. Claimant described
County Route 9 as a winding, unmarked one and one-half lane, blacktop road.
According to claimant, the road is wide enough in some locations for two
oncoming vehicles to pass safely as long as each vehicle stays within its lane.
However, she stated that some locations on the road are more narrow and one
oncoming vehicle may have to maneuver to the berm of the road to allow the
other vehicle to pass safely. She stated that the berm varies at different
locations from high to low. At the location of this incident, claimant stated
that two oncoming vehicles could pass safely, but in this instance, the other
vehicle was out of its lane of travel. In addition, claimant testified that at
the location of the accident the berm was gravel and twelve to sixteen inch
gravel berm. Claimant estimated that the hole was located a little less than
twelve inches from the edge of the paved portion of the road. She estimated the
hole to be eight to ten inches wide and very deep. Claimant introduced
photographs into evidence at the hearing of this matter which depicted the
erosion of the blacktop along the edge of the road as well as the hole in the
berm just to the left of the eroded portion of the road. Claimant introduced a
repair estimate into evidence for one wheel at $114.00, one tire at $32.99, and
a center cap for $40.00. Thus, claimant seeks a total award of$ 198.21.
Claimant contends that respondent knew or should have known of this hole and
yet failed to repair it in a timely manner.
Respondent asserts that it did not have notice of this hole and that it
repaired it as soon as it received notice.
Mark Douglas Poe, the crew chief for respondent in Wetzel County at the time of
this incident, is responsible for the maintenance of County Route 9. Mr. Poe is
familiar with County Route 9 and the location of this incident. He stated that
County Route 9 is an unmarked, secondary road. Further, he stated that
respondent does not have a schedule for maintaining the road but that it is
inspected and worked on if any problems are detected. Mr. Poe testified that he
does not know the last time that the
50 REPORTS STATE
COURT OF CLAIMS [W.Va.
berms were repaired along County Route 9. According to Mr. Poe, respondent had
no prior complaints or notice about this hole.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 81 (W.Va. 1947). To hold respondent liable, claimant must
establish by a preponderance ofthe evidence that respondent had actual or
constructive notice of the defect in question and a reasonable amount of time
to take corrective action. Chapman v. Dept. of 1-Iighways, 16 Ct. Cl.
103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). The
State owes a duty of reasonable care and diligence in the maintenance of a
highway. Parsons v. State Road Comm ‘n., 8 Ct. Cl. 35 (1969).
The respondent also has a duty to maintain the berm of a highway in a
reasonably safe condition for use when the occasion requires. Compton v. Division of Highways, 21 Ct. Cl. 18 (1995). Liability may ensue when a
motorist is forced onto the berm in an emergency or otherwise necessarily uses
the berm of the highway and it fails. Sweda v. Dept. of Highways, 13 Ct.
Cl. 249 (1980).
In this claim, the evidence established that respondent had, at the least,
constructive notice of the hole in the berm along County Route 9 at the location
of this incident. Given the evidence that the pavement along the edge of the
road where claimant drove onto the berm was deteriorated, the Court is of the
opinion that this condition was present for a significant period of time as was
the hole next to it. Thus, respondent should have made adequate and timely
repairs.
Accordingly, the Court is of the opinion to and does make an award in this
claim in the amount of$198.21.
Award of$198.21.
OPINION ISSUED OCTOBER 30, 2003
GEORGE C. STEPHENS and BETTY STEPHENS
VS.
DIVISION OF HIGHWAYS
(CC-03- 174)
Claimants appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for damage to their chain link fence which
occurred when respondent plowed snow on State Route 10/1 in Martinsburg,
Berkeley County, onto claimant’s chain link fence knocking it to the ground.
The Court is of the opinion to deny this claim for the reasons set forth more
fully below.
The incident giving rise to this claim occurred sometime in late January 2003
at or near claimants’ property located adjacent to State Route 10/1 also
referred to as Tavern Road in Martinsburg, Berkeley County. State Route 10/1 is
a winding, two-lane road which traverses in front of claimants’ property and leads
to the City Hospital in Martinsburg. The lanes on State Route 10/1 are each
approximately twelve feet wide in most locations. The travel portion of the
road from white line to white line is approximately twenty-four feet wide.
Claimants had an eighty-five to one-hundred foot long chain link fence adjacent
to the road. Mr. Stephens estimated that the fence was four
W.Va.] REPORTS
STATE COURT OF CLAIMS 51
feet from the white edge line of the road. Further, he stated that respondent
has taken more of his property during the past few years and that there used to
be five feet between the fence and the white edge line of the road. In late
January, 2003, a large portion of the State was covered by a significant
snowstorm. According to Mr. Stephens. the area around claimants’ property
received approximately thirty-two to thirty-eight inches of snow within one and
one-half to two days. As a result, State Route 10/1 was covered with snow.
Respondent used a one-ton truck with a snowplow to clear the road. Mr. Stephens
testified that most of the snow that was plowed off the road in front of his
property was piled up next to and over his chain link fence completely knocking
it to the ground. He estimates that respondent plowed fifty inches of snow onto
his fence. As a result, claimants had to purchase and install five temporary
fence posts to support the fence so that it could stand again. Mr. Stephens
testified that it will cost them $478.00 to have a new fence installed. Thus,
claimants seek an award of $478.00.
Claimants assert that respondent negligently plowed a large amount of snow onto
their property which proximately caused the damage to their fence.
Respondent contends that it acted reasonably under the circumstances then and
there existing and it is not liable for the damage to claimants’ fence.
Mark Baker, assistant county supervisor for respondent in Berkeley County at
the time of this incident, is responsible for daily operations of the field
crews. He was responsible for the crew that plowed the snow on State Route 10/1
on the date at issue and he is familiar with this road. He testified that State
Route 10/1 proceeds from the City Hospital past claimants’ property and
intersects with County Route 13 and County Route 45. Mr. Baker testified that
the weather conditions on the dates at issue resulted in treacherous road
conditions. He stated that the Martinsburg and surrounding area received
thirty-six inches of snow within one and one-half to two days. According to Mr.
Baker, the Governor declared a state of emergency throughout most of West
Virginia including Berkeley County. In addition, respondent was on “Code Red”,
which provides that only respondent’s vehicles and emergency vehicles may use
the highways. This allows respondent to clear the roads more efficiently. Mr.
Baker testified that a one ton truck with a snowplow was used to clear State
Route 10/1. He estimated that in a twenty- four hour period respondent probably
plowed the road in front of claimant’s property once every two to two and
one-half hours. Although State Route 10/1 is a low priority road in most
locations, Mr. Baker stated that respondent keeps the portion near claimants’
property cleared because it is the access route to the City Hospital. In
addition, Mr. Baker rejected claimants’ argument that respondent plowed the
snow only to the side of the road where claimants’ property was located. He
testified that the plowtruck operators are instructed to plow on the center
line. He stated that “when we turn and come back we would plow the other side.”
He testified that respondent does not plow snow completely across the road to
the other side because this can obstruct traffic. Further, Mr. Baker testified
that respondent did not use a bucket to remove the snow at this location
because it has only two such machines, one of which is needed at the
headquarters to load salt trucks, while the other is used to haul snow in
locations where the snowplow cannot reach such as large snow drifts.
W.Va. Code §
15-5-11 grants immunity and exemption to
a “duly qualified emergency service worker.” W.Va. Code § 15-5-11(a) states in part that:
...Neither the State nor any political subdivision nor agency of the State or
political subdivision nor, except in case of willful misconduct, any duly
qualified emergency service worker complying with or reasonably attempting to
comply with this article or any order, rule, regulation or
52 REPORTS STATE COURT OF CLAIMS [W.Va.
ordinance promulgated pursuant to this article, shall be liable for the
death of or injury to any person or for damage to any property as a result
of such activity....
W.Va. Code §
15-5-1 l(c)(1) defines a “duly qualified
emergency service worker” in part as:
Any duly qualified full or part-time paid, volunteer or auxiliary employee of
this State... performing emergency services in this State subject to the order
or control of or pursuant to the request of the State or any political
subdivision thereof.
In this claim, the Court is of the opinion that W.Va. Code §15-5-11 bars
claimants from any recovery due to the fact that employees of the respondent
were operating as duly qualified emergency service workers under emergency
circumstances. The Governor had declared a state of emergency and respondent
was operating under “Code Red” to clear the roads and highways of snow and ice.
Further, respondent was attempting to keep Route 10/1 clear of snow so as to
allow the public access to the local hospital. Respondent did not willfully
cause damage to claimants’ chain link fence; therefore, under the statute,
respondent is not liable for the damage to claimants’ property. While
sympathetic to claimants’ loss, the Court is required to deny recovery in this
claim.
Accordingly, in view of the foregoing, the Court is of the opinion to and does
deny this claim.
Claim disallowed.
OPINION ISSUED OCTOBER 30, 2003
WALLACE REESE and KATHERINE R. REESE
VS.
DIVISION OF HIGHWAYS
(CC-03-l 16)
Claimants appeared pro se
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimants brought this action for damage to their 2000 BMW 323 which occurred
when claimant Wallace Reese was operating their vehicle on State Route 20 in
Wetzel County, and the vehicle struck a hole in the road. Respondent was
responsible at all times herein for the maintenance of State Route 20. The
Court is of the opinion to deny this claim for the reasons set forth more fully
below.
The incident giving rise to this claim occurred on February 18, 2003, at
approximately 4:45 p.m. Claimant Wallace Reese was traveling northbound
on State Route 20 from Mannington to New Martinsville, which he travels
frequently. At this location, State Route 20 is a two-lane, blacktop highway
with a double yellow center line and white lines on both edges of the road. It
was cloudy and the road was wet but there
W.Va.] REPORTS
STATE COURT OF CLAIMS 53
was no precipitation at the time of this incident. The road surface was wet
due to a large snowfall which occurred on February 17,2003, the day prior to
this incident. Mr. Reese testified that he was traveling between thirty-five
and forty miles per hour. He stated that it was still daylight but that it was
quickly turning to dusk. H.e was negotiating a right curve in the road near the
south end of Reader in Wetzel County when he approached several holes in the
road. He attempted to avoid the holes by maneuvering towards the center line
but he was unable to do so because of oncoming traffic. The right front tire
struck one of the holes. After the incident, claimant noticed that the vehicle
was pulling to the right. On March 13, 2003, he drove the vehicle to Charleston
to have it serviced. At that time, he discovered that the right front wheel was
bent and the tire had a separated belt. Mr. Reese testified that he has
observed numerous holes in the road at the location of this incident on prior
occasions. He stated that he observed different holes appearing at different
times. He stated that some holes would be repaired with cold mix but the
repairs lasted only a short period of time because the cold mix would come out
of the holes. According to Mr. Reese, it was possible to avoid some of the
hoLes at this location by driving close to the center line. However, on the
night of this incident there was oncoming traffic which prevented him from
doing so. Claimants submitted a repair bill for a new tire, a wheel, and a four
wheel alignment in the amount of $654.73.
Claimants contend that respondent knew or should have known of the holes in the
road and that it should have made adequate and timely repairs to eliminate this
hazard.
Respondent asserts that it did not have notice of the holes in the road and it
was operating under emergency circumstances to remove the snow and ice from the
roads as a result of a large snowstorm and that it acted diligently under the
circumstances.
Joseph Mercer Jr., the Crew Leader for respondent in Wetzel County at the time
of this incident, is responsible for overseeing the maintenance work on State
Route 20 at the location of this incident. He is also familiar with the
location where this incident occurred. Mr. Mercer testified that on February
17, 2003, Wetzel County received a heavy snowfall. He testified that some areas
received twenty inches of snow and a few others received as much as thirty
inches of snow. As a result of such a large snowfall in a short period of time,
Mr. Mercer and the two crews he oversees were forced to operate on a
twenty-four hour schedule. He stated that each crew is made up of six members
and that they operated dump trucks and a grader to clear the snow off the
roads. Mr. Mercer testified that during such a large storm the respondent’s
first priority is to clear the roads to keep them open for travel. Further, he
stated that State Route 20 is a “trunk line” road and is a first priority road.
Mr. Mercer testified that once State Route 20 is cleared then respondent clears
the “feeder line” roads, which are blacktop roads that are not as heavily
traveled as the first priority roads. He stated that the secondary roads are
cleared and treated last. Respondent introduced into evidence the DOH-12
records which indicated that on February 17, 2003, the respondent placed
thirty-four tons of salt and cinder on State Route 20 in response to the heavy
snowfall. Further, on February 18, 2003, the date of this incident, respondent’s
records show that its two crews each worked a twelve hour shift. The respondent
used snow plows and trucks to apply abrasives primarily on State Route 20. In
addition, Mr. Mercer testified that respondent had a truck plowing snow and
applying abrasives on State Route 20, a total of sixteen hours on February 18,
2003. According to Mr. Mercer, respondent had no prior notice or complaints
about the hole which claimants’ vehicle struck He testified that on February 6,
2003, respondent placed temporary cold mix patches over holes in the road on
State Route 20. Respondent introduced into evidence a DOH-12 dated February 6,
2003, which indicated that
54 REPORTS STATE COURT OF CLAIMS [W.Va.
respondent patched the road in the area where Mr. Reese’s incident occurred.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of motorists on its roads and highways. Adkins
v. Sims, 46 S.E.2d 81. (W.Va. 1947). To hold respondent liable, claimants
must establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman v. Dept. of Highways 16 Ct. Cl.
103 (1986); Pritt v. Dept of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent was not
negligent in its maintenance of State Route 20. The evidence adduced at the
hearing established that respondent had all of its available employees on SRIC (snow
removal and ice control) due to the significant snowstorm in Wetzel County.
Respondent had to respond to this emergency situation and focus on removing the
snow and keeping the roads clear. Respondent was operating on a twenty four
hour basis to keep State Route 20 and other roads open beginning on February
17, 2003, and respondent did the same on February 18, 2003, which was the date
of this incident. The evidence also indicated that respondent hadjust patched
the portion of the road where this incident occurred on February 6, 2003, which
was only twelve days prior to the incident. Respondent had no notice or
complaints about holes in the road between February 6, 2003, and February 18,
2003. The Court is of the opinion that the respondent was acting diligently in
treating the snow and ice hazards on the date of this incident and was not
negligent in its maintenance of State Route 20 at the time of claimant’s
incident herein.
Therefore, in view of the foregoing, the Court is of the opinion to and does deny
this claim.
Claim disallowed.
OPINION ISSUED OCTOBER 30, 2003
LAURENCE W. DOMENICO
VS.
DIVISION OF HIGHWAYS
(CC-03-201)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for damage to his vehicle which occurred when he
was traveling westbound over a bridge on Route 9 near Hedgesville, Berkeley
County, and his vehicle struck a large hole in the road. Respondent was
responsible at all times herein for the maintenance of Route 9 in Berkeley
County.
The incident giving rise to this claim occurred on May 1, 2001, at
approximately
2:00 p.m. The weather was clear and the road was dry. The bridge at issue on
Route 9
has four lanes with two eastbound lanes and two westbound lanes divided by a
concrete
barrier At the time of this incident, respondent was overseeing a widening
project on the
bridge. Claimant, Laurence Domenico, testified that he knew he was traveling
through
a construction zone. He was traveling west in the right lane at approximately
thirty miles
W.Va.j REPORTS
STATE COURT OF CLAIMS 55
per hour when, suddenly and without warning, he saw a large hole in the
road ahead of him. He looked to see if he could maneuver his vehicle into the
left passing lane but he was unable to do so due to the volume of traffic both
in front of and behind his vehicle. He described the impact as significant and
loud. After his vehicle struck the hole, he attempted to slow it down, but the
brakes did not work. Fortunately, claimant was in a five speed manual
transmission automobile and he was able to slow the vehicle down and safely
park it. The impact with the hole broke the vehicle’s brake system causing all
the brake fluid to leak out and the brakes to fail. In addition, it broke the cable
to the emergency brake. Following this incident, claimant contacted respondent
and he was directed to respondent’s local field office at “Rock Cliff Drive” to
report the incident, which he did. Claimant submitted a repair bill to the
Court in the amount of $256.68 for damage to his brakes as well as his right
wheel cylinder.
Claimant contends that respondent knew or should have known that this hole was
present and taken the proper remedial actions.
It is respondent’s position that it did not have notice of the hole and that
the contractor performing the project was responsible for maintenance during
the road widening project.
Mark Baker, assistant county supervisor for respondent in Berkeley County at
the time of this incident, is responsible for the maintenance of the highways
in Berkeley County including the bridge at issue in this claim. Mr. Baker
testified that at the time of this incident the bridge was four lanes with an
approximate five to six foot shoulder on each side. He also testified that the
respondent had an agreement with a contractor, Upon the Rock, which was to
remove the deck from the bridge, restore the bridge, put a new deck on, and a
new parapet wall. In addition, the contractor was extending the bridge to
create three lanes and a five-foot shoulder. Mr. Baker testified that
respondent had no knowledge of the hole prior to this incident and had he known
of it he would have had it repaired. He also testified that, once a contractor
is given a project such as this one, it is the contractor’s responsibility to
properly maintain the structure while the job is being conducted. However, Mr.
Baker also testified that the contractor has a duty to establish a field office
for respondent’s use or respondent’s consultant’s use during the project. He
testified that respondent is ultimately the supervisor for such a project. He
also stated that respondent or its consultant oversees the daily operations and
is to be on site while all work is being performed. According to Mr. Baker,
respondent did in fact have an inspector or consultant on this job site.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its roads and highways. Adkins v.
Sims, 46 S.E.2d 81 (W.Va. 1947). However, the Court has also held that
respondent owes a duty to motorists to exercise reasonable care and diligence
in maintaining roads under all circumstances. Hobbs v. Dept. of Highways, 13
Ct. Cl. 27 (1979); Lewis v. Dept. of Highways, 16 Ct. Cl. 136 (1985); Adkins
v. Div. of Highways, 21 Ct. Cl. 13 (1995). To hold respondent liable, the
claimant must establish by a preponderance of the evidence that the respondent
had actual or constructive notice of the road defect at issue and a reasonable
amount of time to take corrective action. Chapman v. Dept. of Highways, 16
Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8(1985).
In the present case, the evidence established that respondent had at least
constructive notice of the hole on the bridge. The Court rejects respondent’s
argument that it should not be held liable for this damage because there was a
private contractor who was responsible for the project. The evidence
established that respondent had a local field office at the site of this
incident. Respondent’s witness admitted that it had
56 REPORTS STATE
COURT OF CLAIMS [W.Va.
someone on or near the site to oversee the daily operations of the contractor
and to inspect the job. Thus, respondent should have been aware that this hole
was present and taken the proper remedial actions to correct it. its failure to
do so was the proximate cause of claimant’s damages.
Accordingly, in view of the foregoing, the Court is of the opinion to and does
make an award to the claimant in the amount of $256.68.
Award of $256.68.
OPINION ISSUED OCTOBER 30, 2003
JOE ZIRK
VS.
STATE RAIL AUTHORITY
(CC-03-4 19)
Claimant appeared pro se.
John S. Dalporto, Senior 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 $1,765.00 for personal property damage caused when respondent
was using a tamper on a railroad near claimant’s home and a hydraulic hose
burst on the machine and sprayed hydraulic fluid on claimant’s property located
in Moorefleld, Hardy County.
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 $1,765.00.
Award of $1,765.00.
OPINION iSSUED OCTOBER 30, 2003
CARL SANDERS
VS.
PUBLIC SERVICE COMMISSION
(CC-03-426)
Claimant appeared pro Se.
Joy M. Bolling, Assistant Attorney
General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
W.Va.J REPORTS
STATE COURT OF CLAIMS 57
of Claim and respondent’s Answer.
Claimant, an employee of the respondent State agency, seeks $771.40 for travel
expenses. 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 $771.40.
Award of $771.40.
OPINION ISSUED OCTOBER 30, 2003
ALLTEL
VS.
STATE FIRE MARSHAL
(CC-03-427)
Claimant appeared pro Se.
Joy M. Boiling, 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 $507.12 for providing cellular telephone services for the
respondent State agency. 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 $507.12.
Award of $507.12.
OPINION iSSUED OCTOBER 30, 2003
FEDERAL BUREAU OF PRISONS
VS.
DIVISION OF CORRECTIONS
(CC-03-484)
Claimant appears pro Se.
Charles P. Houdyschell, Jr., 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.
58 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claimant seeks payment in the amount of $9,583 .77 for the housing of inmates
for the respondent State agency. 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.
OPThT!ON ISSUED DECEMBER 2, 2003
VERIZON WEST VIRGINIA, INC.
vs.
DEPARTMENT OF ADMiNISTRATION
(CC-03-503)
Joseph J. Starsick, Jr., Attorney at Law, for claimant.
Heather A. Connolly, Assistant General Counsel, 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 $933,785.85 for unpaid telephone charges for fiscal years 1998,
1999, and 2000. 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
$933,785.85.
Award of $933,785.85.
OPINiON ISSUED DECEMBER 2, 2003
CHARLESTON AREA MEDICAL CENTER, INC.
VS.
DIVISION OF CORRECTIONS
(CC03-439)
Claimant appears pro Se.
Charles P. Houdyschell, Jr., Assistant
Attorney General, for respondent.
W.Va.] REPORTS
STATE COURT OF CLAIMS
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 $41,926.91 for medical services
rendered to an inmate in the custody ofrespondent at Mount Olive Correctional
Complex, 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 thi-IP Photosmart D7355
Printerat an award cannot be recommended based upon the decision in Airkem
Sales and Service, etal. vs. Dept. of Mental J-Iealth, 8 Ct. Cl. 180
(1971).
Claim disallowed.
OPINION ISS UED DECEMBER 2, 2003
CHARLESTON AREA MEDICAL CENTER, INC.
VS.
DIVISION OF CORRECTIONS
(CC03-449)
Claimant appears pro Se.
Charles P. Houdyschell, Jr., 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 payment in the amount of $6,473.83 for medical services rendered
to an inmate in the custody ofrespondent at Mount Olive Correctional Complex, 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 Ajrkem Sales and Service, et al. vs.
Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED DECEMBER 2, 2003
ALl R. DABIRI
VS.
DIVISiON OF HIGHWAYS
(CC-03-094)
60 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claimant appeared pro
Se.
Xueyan Zhang. Attorney at Law, for
respondent.
PER CUE1AM:
Claimant brought this action for damage to his water line which he alleges was
caused by respondent’s negligent failure to secure properly a portion of the
hillside adjacent to Route 11/1 also referred to as Bill’s Fork Road near
Servia in Braxton County. Respondent is at all times herein responsible for the
maintenance of Route 11/1 in Braxton County. The Court is of the opinion to
deny this claim for the reasons set forth more fully below.
Claimant’s residence and property is located adjacent to County Route 11/1.
County Route 11/1, also referred to as Bill’s Fork Road, is a “semi-improved”
tar and shale road with a “sealed top.” The road is approximately ten feet wide
and is unmarked. There is a small berm on the right side of the road for
northbound traffic and a steep hillside on the opposite side of the road with a
small ditch-line located between the edge of the road and the hillside.
According to respondent, its right-of-way at the location of this incident is
between fifteen to twenty feet from the center of the road in both directions.
Claimant owns property on both sides of County Route 11/1 at the location of
this incident. According to claimant, there is a distance of approximately
seventy to eighty feet from the edge of the highway on the left side of the
road to the toe of the slope on claimant’s property at the bottom of the hill.
There is a creek located at the bottom of the hill between the hillside and
claimant’s meadow. His residence is located on the end of the meadow opposite
the road. Claimant estimates that there is a distance of 800 feet from his home
to County Route 11/1. Claimant stated that the hillside is located at an
approximate seventy degree slope. He stated that the hillside has a steep slope
at the top, but at approximately twenty to thirty feet down the slope of the
hill it becomes somewhat less steep. The slope of the hillside above the road
on the opposite side of the road is less steep. Claimant estimates that it has
a fifty-five to sixty degree slope. Claimant’s water line begins at the well
which is located on the west side of County Route 11/1 approximately ten to
fifteen feet from the road. The well is on a portion of claimant’s property
where it was located when he purchased the property in 1997. He estimates that
it has been in the same location at least thirty years and it is the only
source of water for claimant’s residence. The water flows through a pipe from
the well, then through respondent’s sixteen to eighteen inch culvert under
County Route 11/1, and continues on the other side of the road where it flows
through the waterline across claimant’s meadow to his home. Claimant testified
that there is approximately one- thousand feet of waterline extending from the
well to his home.
In May 2002, the waterline to claimant’s home failed. At first, claimant
believed that the line might be plugged so he decided to place a second
waterline of 1000 feet on top of the ground from the same well across the
meadow to his home. This waterline was in place from May 2002 until November
2002, when he hired a company to excavate the underground pipe to determine
what was causing the problem. It was at this time that claimant found that
there was a “kink” in the water line on the side of the road closest to
claimant’s residence. According to claimant, the “kink” is approximately two to
three feet from the edge of the road on the grassy berm. Further, claimant
testified that he also observed a portion of County Route 11/1 “sliding” and
“settling” parallel to the location where the kink was found in his water line.
He stated that there is a crack in the surface of the road at this location and
that as a result of the crack there is a large gap between two portions of the
road. He estimated that this gap is between eight to ten
W.Va.] REPORTS
STATE COURT OF CLAIMS 61
inches in width and height. This is the same location where claimant’s water
line runs under the road. Claimant is of the opinion that the road is settling
because there is nothing to maintain the weight of the road sufficiently. In
addition, he stated that the weight of the traffic and the heavy rainfalls the
prior year combined to cause this condition in the road. He is of the opinion
that the condition of the road caused the damage to his water and the
subsequent loss of his water supply. Claimant stated that if respondent had
placed some type of retainer such as pylons along the hillside it would have
prevented the road from sliding and causing the damage to his water line.
Claimant also stated that since this was a mountainous area respondent should
have been more diligent in providing support for the hillside and the road
especially since the hillside was at such a steep angle. Claimant testified
that he incurred expenses as a result of respondent’s negligence. He submitted
invoices for installing a new water line. One invoice was in the amount of
$291.40 and a second invoice in the amount of $219.47. Claimant also submitted
an invoice into evidence in the amount of $856.00 for an air compressor
and the excavation of the pipe. Claimant seeks a total award of $1,366.87.
Claimant asserts that respondent failed to provide proper support for the
hillside causing the road to settle and crack which was the proximate cause of
the damage to claimant’s water line.
Respondent’s position is that it acted reasonably and diligently in maintaining
the road and hillside. Further, it did not have notice of the slip of the
hillside until after the damage to claimant’s water line.
Jack D. Belknap, Equipment Operator Two for respondent, in Braxton County,
testified that he is familiar with County Route 11/1 at the location of
claimant’s property. Mr. Belknap stated that County Route 11/1 is a third
priority road, but that it is not the lowest priority in terms of road
maintenance. He stated that he believes that respondent’s right-of-way is
fifteen to twenty feet from the center of the road in each direction. He first
became aware of claimant’s loss of water flow in the Summer of 2002 when
claimant called and informed respondent that he had lost the water flow to his
home due to a problem with respondent’s road. Mr. Belknap and an assistant
visited the scene to determine what the problem may be. He testified that he
saw clear water leaking from claimant’s water line on the side of the road where
the ditch line and the well are located. He also testified that while he was
there he did not observe any cracks in the road. The only noticeable action
that he felt respondent could do at that location was to clear the ditch line.
Mr. Belknap also stated that he informed claimant of the water leak and that
there was nothing respondent could do to help because it was not responsible
for repairing the water line. Further, Mr. Belknap testified that respondent
had no prior notice of the road surface settling until the spring of 2003. Mr.
Belknap is of the opinion that any slippage at or near the location of
claimant’s water line has been caused by excessive surface water that developed
over the past few years as a result of heavy rainfalls. In addition, he testified
that Braxton County has suffered from water damage this past year from the
excessive rainfall.
Mark Nettleton, a Geotechitical engineer for respondent, is responsible for
addressing landslides on behalf of respondent. Mr. Nettleton testified that he
first went to the site of this incident on September 3, 2003, with two other
employees ofrespondent to investigate the cause of claimant’s problem. Mr.
Nettleton testified that he observed a slip of the hillside below the road on
the side of the road where claimant’s water line was damaged. He stated that
this area looked like the “typical toe of a landslide”. However, he did not
notice any slippage or problems with the hillside on the other side of the
road. In Mr. Nettleton’s opinion, the last two years of heavy rainfall has
caused
62 REPORTS STATE
COURT OF CLAIMS [W.Va.
the water table to rise which in turn caused high pooi pressures in the ground
and embankment. This caused the soil below the road to weaken and the
embankment to slide and give way. Further, he testified that this condition
began on claimant’s property and progressed to the road. Mr. Nettleton
testified that he did not observe anything on the hillside below the road that
would indicate that anyone had done anything to cause this problem. According
to Mr. Nettleton, in order to correct this problem a retaining wall, piling, or
a buttress at the bottom of the hill is needed. However, he stated that the
road was designed properly, and respondent was not negligent for failing to
install a retaining wall at the time the road was designed. In addition, he did
not believe that there was anything that anyone could have done along the edge
of the road that would have prevented the lower side of the hill from sliding.
In addition, he testified that the drainage system established by respondent
was in good working condition. He stated that the water from the hillside above
the highway on the left side of the road flows into the ditch line next to the
highway at the bottom of the hill. This water flows through the culvert under
the road which is the same one through which claimant’s waterline runs. The
water then drops seventy to eighty feet over the edge of the hillside to the
creek below which is located on claimant’s property. Mr. Nettleton testified
that the ditch line and culvert are open and in good condition. In his opinion,
this drainage system has not had any effect on softening the soil on the
hillside or under the road.
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. Haughty. 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 v. Div. of
Highways, 21 Ct. Cl. 97 (1996).
In the present claim claimant failed to establish by a preponderance of the
evidence that respondent maintained County Route 11/1 or the supporting
hillside in a negligent manner. While the Court is sympathetic to claimant’s
situation, it is of the opinion that the cause of the slippage of the hillside
is not a result of respondent’s negligence. The evidence adduced at the hearing
established that the excessive surface water that has developed over the past
two years as a result of heavy rainfalls is the cause of the slippage and
claimant’s damages. Further, the evidence established that respondent had
installed an adequate drainage system and maintained it adequately. While
respondent’s witness testified that a retaining wall or buttress at the bottom
of the hill would remedy the slip in the road, he did not state that the road
was improperly designed or that respondent was negligent for not installing
these devices. The evidence established that respondent did not have prior
notice of a slip at this location. Thus, the Court is of the opinion that
respondent was not negligent in failing to protect claimant’s property because
it was not foreseeable that a slip would occur at this location.
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 DECEMBER 2, 2003
BRIDGETTE D. GREAVER
VS.
DIVISION OF HIGHWAYS
W.Va.] REPORTS
STATE COURT OF CLAIMS 63
(CC-02-4 17)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage to her vehicle which occurred when she
was operating her vehicle on Old Route 50 near West Union, in Doddridge County,
and the vehicle struck a large rock in the road. Respondent was responsible at
all times herein for the maintenance of Old Route 50 in Doddridge County. The
Court is of the opinion to deny this claim for the reasons set forth more fully
below.
The incident giving rise to this claim occurred on October 11, 2002, sometime
in the afternoon. Claimant was traveling westbound on Old Route 50 to her home
in West Union, Doddridge County. She was driving her 1983 Ford Escort
Stationwagon. It had been raining earlier in the day but according to claimant
there was no precipitation at the time this incident occurred. Claimant was
traveling through an area known locally as the “cut” because the road goes
through a cut made in the mountain. She estimates that she was traveling
forty-five to fifty miles per hour in a fifty-five mile per hour zone. There
was a truck in front of her and a car behind her, which car was driven by
Sandra Holcombe, a friend of claimant’s and a witness to the incident.
Suddenly, claimant saw a large rock in the middle of her lane of travel. She
stated that she was unable to maneuver the vehicle to the right onto the berm
because the vehicle would strike the ditch, and there was an oncoming vehicle
in the other lane. Thus, she stated that she had no choice but to drive over
the rock which caused significant damage to her vehicle including damage to the
converter, muffler, and tailpipe. Sandra Holcombe testified that after
claimant’s vehicle struck the rock, it broke into numerous smaller pieces.
Fortunately, claimant was not injured and she was able to drive her vehicle to
respondent’s local station approximately one-half mile away to report the
incident. Claimant testified that the rock her vehicle struck was approximately
eighteen inches high and eighteen inches wide. According to claimant, she could
not see the rock in the road due to the large truck in front of her blocking
her view. She estimated that she was a car length away from the rock when she
saw it. Claimant stated that the truck in front of her was high enough off the
ground to avoid striking the rock. Old Route 50 at this location is a two-lane,
blacktop road with a double yellow center line and white lines on both edges.
There are berms on both sides of the road. In addition, there are hills on both
sides of the road. Claimant testified that the rock came from the hillside on
her right where the hill is steeper. Claimant also testified that she travels
this road two or three times per day and that she is aware that this is a rock
fall area. However, she stated that she has only seen smaller rocks fall on the
side of the road. She has never seen a large rock in the road prior to this
incident.
Claimant contends that respondent failed to take adequate measures to protect
the traveling public from a known rock fall hazard.
Respondent asserts that it acted reasonably and diligently in protecting the
traveling public from falling rocks at this location and that it did not have
notice of this particular hazard.
Larry Williams, assistant supervisor for respondent in Doddridge County, is
responsible for maintaining the roads in Doddndge County, which includes the
portion ofOld Route 50 at issue and he is familiar with this location. According
to Mr. Williams, this location is a known rock fall area and respondent
occasionally receives complaints of rocks in the road. In addition, there are
no rock fall warning signs at this location. Mr.
64 REPORTS STATE
COURT OF CLAIMS [W.Va.
Williams testified that when this portion of road was built, benches were built
into the rock wall on the right side of the road. The benches are located high
above the road and are approximately twenty feet wide. The benches were created
to catch the rocks that fall and prevent them from continuing to roll down the
hill and onto the road. According to Mr. Williams, this is the first large rock
that he is aware of that has fallen onto the road. He stated that it is very
rare for rocks to fall onto the road at this location and that when they do
they are small. Further, he stated that the benches are preventing the large
rocks from falling onto the road. Mr. Williams also testified that neither he
nor respondent had notice of this particular rock in the road, until claimant
reported the incident.
It is a well established principle that the State is neither an insurer nor a
guarantor ofthe safety of motorists on its roads and highways. A.dkins v.
Sims, 46 S.E.2d 81 (W.Va. 1947). This Court has consistently held that the
unexplained falling of a rock or rock debris on the road surface is
insufficient to j
ustif’ an award. Mitchell v. Division
of Highways, 21 Ct. Cl. 91(1996); Hammond v. Dept. of Highways, 11
Ct. Cl. 234 (1977). In order to establish liability on behalfofrespondent,
claimant must establish by a preponderance of the evidence that respondent had
notice of the dangerous condition and a reasonable amount of time to take
corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986);
Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In this claim, the claimant failed to establish that respondent had not
taken adequate measures to protect the safety of the traveling public from rock
falls at the location of this incident. Respondent built adequate benches along
the side of the hill which the evidence established caught the large rocks. In
addition, the evidence established that respondent did not have notice of any
large rocks falling onto the road at this location until after claimant’s
incident. 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.
Therefore, in view of the foregoing, the Court is of the opinion to and does
deny this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 2, 2003
AMANDA ADAMS
VS.
DIVISION OF HIGHWAYS
(CC-03-l 00)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for damage to her 2003 Dodge Neon which occurred
when she was traveling on County Route 39 near Swiss in Nicholas County, and
the vehicle struck a large hole in the road. Respondent was responsible at all
times herein for the maintenance of County Route 39. The Court is of the
opinion to deny this claim for the reasons set forth more fully below.
The incident giving rise to this claim occurred on February 21, 2003, at
W.Va.] REPORTS
STATE COURT OF CLAIMS 65
approximately 10:30 p.m. Claimant. her fiancee, and brother had traveled
from Summersville to Charleston to do some shopping. Claimant was driving back
to Summersville from Charleston. Her fiancee was seated in the front seat and
her brother was seated in the back seat. It was dark outside and it had been
raining. Although it had stopped raining, the road surface was saturated and
there was standing water at some locations on the road. County Route 39 at the
location of this incident is a two-lane asphalt highway with a double yellow
line and white lines on both edges. Claimant slowed the vehicle as she drove
around a left curve in the road just above Swiss Road towards Summersville. As
she drove out of the curve, she saw a large hole in the travel portion ofthe
road just as both right side tires went through the hole. Claimant stated that
the hole was just left of the white edge line and that both right side tires
struck the center of the hole. She maneuvered the vehicle to the berm of the
road where she discovered that both tires were flat. The vehicle had to be
towed to the garage to be repaired. At the garage, claimant was informed that
one of her wheels was also bent. Claimant testified that she did not know the
hole was there. She testified that the last time she had traveled County Route
39 in the same direction was approximately three months prior. Christopher
Pittsenbarger, claimant’s fiancee, testified that he did not see the hole
before claimant’s vehicle struck it. He also testified that the hole was
approximately five inches in diameter and four to five inches deep. Claimant’s brother,
Carl Adams, testified that the hole was approximately six to seven inches in
diameter and four to five inches deep. He also testified that he travels this
portion of highway often and that he did not recall this particular hole in the
road. Claimant submitted a repair bill into evidence for the cost of the two
tires in the amount of $132.39, and she submitted a repair estimate into
evidence for the cost of a new wheel in the amount of $349.80. Thus, claimant
seeks a total award of $482.19.
Claimant contends that respondent knew or should have known of this hole and
that it presented a hazardous condition to the traveling public.
It is respondent’s position that it did not have notice of the hole or a
reasonable amount oftime to make repairs, and that it was acting reasonably and
diligently under the circumstances.
Edward Brown, assistant county supervisor for respondent in Nicholas County, is
responsible for responding to complaints regarding the roads and for
maintaining the roads in Nicholas County. Mr. Brown is familiar with this
portion of County Route 39. He testified that County Route 39 is a first
priority road and that it is a heavily traveled road. He stated that he or one
of his two other assistants drive this road looking for holes and other
hazards, especially during the winter months. He testified that there was a lot
ofbad weather during the winter of 2003, including heavy snow, freezing rain,
and freeze thaw cycles. According to Mr. Brown, the weather conditions last
winter caused the road foundations to deteriorate at a fast rate. Mr. Brown
also stated that respondent had not received any prior complaints regarding
holes in this portion of County Route 39. However, at some point in the middle
of February 2003, one of his assistant’s did report to him that there were a
few areas that needed repairs, but the location at issue was not mentioned as
one of the areas in need of repairs. Regardless, Mr. Brown testified that
weather conditions throughout February 2003 prevented respondent from applying
cold mix patches to the surface of the highways.
It is a well established principle that the State is neither an insurer nor a
guarantor ofthe safety of motorists on its roads and highways. Adkins v.
Sims, 46 S.E.2d 81 (W.Va.1947). To hold respondent liable, the claimant
must establish by a preponderance ofthe evidence that the respondent had actual
or constructive notice ofthe
66 REPORTS STATE
COURT OF CLAIMS [W.Va.
road defect in question and a reasonable amount of time to take corrective
action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Prittv. Dept. ofHighways, 16 Ct. Cl. 8 (1985).
In this claim, the Court is of the opinion that respondent acted reasonably and
diligently in maintaining County Route 39 especially during inclement weather.
Claimant failed to establish that respondent had notice of the hole which her
vehicle struck and a reasonable amount of time to take corrective action. While
the Court is sympathetic to the claimant for her loss, there is insufficient
evidence to establish that respondent was negligent.
Therefore, in view ofthe foregoing, the Court is of the opinion to and does
deny this claim.
Claim disallowed.
OPINION ISS UED DECEMBER 2, 2003
DAVID C. FRiEND
VS.
DiViSiON OF HIGHWAYS
(CC-02-425)
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. Claimant was traveling on White Oak Road to Terra Alta in Preston County
when his vehicle struck a piece of metal causing damage to his left rear tire.
2. Respondent was responsible for the maintenance of this portion of White Oak
Road in Preston County, and respondent failed properly to maintain White Oak
Road at this location in Preston County on the date of this incident.
3. As a result of this incident, claimant’s vehicle sustained damage in the
amount of $112.65.
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 and finds that respondent was
negligent in its maintenance of White Oak Road in Preston County on the date of
this 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$112.65.
Award of$l 12.65.
W.Va.] REPORTS
STATE COURT OF CLAIMS 67
OPINION ISS UED DECEMBER 9, 2003
BRITTAIN MCJUNKJN, MD, and JUDITH MCJUNK1N
VS.
DIVISiON OF HIGHWAYS
(CC-02-424)
Claimants appeared pro se.
Andrew F. Tarr and Xueyan Zhang,
Attorneys at Law, for respondent.
PER CURIAM:
Claimants brought this action for damage to their vehicle which occurred when
claimant Brittain McJunkin, M.D., was operating their 1999 Audi station wagon
on 1-77 near Charleston, Kanawha County, and the vehicle struck a metal
expansion joint protruding between the road and the bridge. The Court is of the
opinion to deny this claim for the reasons set forth more fully below.
The incident giving rise to this claim occurred on October 15, 2002, at
approximately 6:00 a.m. while dark. Claimant Dr. McJunkin was traveling
southeast on 1-77 on his way to work in Greenbrier County. He was traveling in
the left lane at approximately sixty to sixty-five miles per hour. He was
approaching a small bridge between mile marker ninety-five and ninety-six when
suddenly his vehicle struck something in the area of the metal expansion joint
span between the bridge and the highway. The impact punctured both left side
tires forcing Dr. McJunkin to maneuver the vehicle to the side of the road. He
testified that he did not see any part of the joint protruding from the roadway
prior to striking it with the vehicle because it was dark. He assumes that the
expansion joint was in a state of disrepair thus causing the damages to the
tires of his vehicle. As a result of the impact, claimants purchased two new
tires and had the tires balanced. Claimants submitted a repair bill in the amount
of $226.84.
Claimants assert that respondent failed to maintain properly the interstate by
failing to remedy the defective expansion joint between the bridge and
pavement.
Respondent did not present any evidence or witnesses in this claim.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 46 S.E.2d 81 (W.Va.1947). In order to hold respondent liable for road
defects of this type, claimant must establish by a preponderance of the
evidence that respondent had actual or constructive notice of the defect and a
reasonable amount of time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
However, respondent owes a duty to
travelers to exercise reasonable care and diligence in the maintenance of
highways. Lewis v. Dept. of Highways, 16 Ct. Cl. 136 (1986).
In the present claim, the Court is of the opinion that claimants have failed to
establish by a preponderance ofthe evidence that respondent knew or should have
known that the expansion joint on 1-77 which is assumed to have damaged
claimants’ vehicle was in a state of disrepair at the time of the accident
described herein. The Court would have to resort to speculation to find that,
in fact, the expansion joint was in disrepair, and further, that there is
liability on the part of the respondent which this Court will not do.
Consequently, there is no evidence of negligence established upon which to base
an award.
Accordingly, the Court is of the opinion to and does hereby deny this claim.
68 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claim disallowed.
OFIATION ISSUED DECEMBER 9, 2003
THOMAS H. WALKER and HEATHER WALKER
VS.
DIVISION OF HiGHWAYS
(CC-03-254)
Claimants appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimants brought this action for damage to their 1999 Mitsubishi Eclipse which
occurred when claimant, Thomas Walker, was operating the vehicle on Cabin Creek
Road near Chelyan, in Kanawha County, and the vehicle struck a large hole in
the road.
Respondent was responsible at all times herein for the maintenance of Cabin
Creek Road.
The Court is of the opinion to deny this claim for the reasons set forth below.
According to claimant Thomas Walker, the incident giving rise to this claim
occurred either on March 7, 2003, or March 10, 2003, between 6:30 p.m. and 7:00
p.m. Mr. Walker was driving their vehicle on Cabin Creek Road on his way home
from work. He had a coworker in the vehicle with him on the evening at issue.
It was a dark, rainy and somewhat foggy evening. Mr. Walker testified that the
road surface was wet and that it was a little difficult to see given these
conditions. Cabin Creek Road at this location is a two-lane, asphalt highway
with a yellow center line and white lines on the edges. Mr. Walker testified
that he was traveling Cabin Creek Road, as he does on a daily basis, when
suddenly his front and rear right side tires struck a large hole in the road.
Claimant drove the vehicle for approximately one mile further when he noticed
that the right front tire was going flat. He turned off the road and changed
the front tire with the help of his friend. Mr. Walker noticed that both
passenger side tires and wheels were damaged. According to Mr. Walker, the hole
was located within the travel portion of the road and within the area where the
passenger side tires touch the pavement. He stated that he did not see the hole
prior to striking it with the vehicle. Mr. Walker also stated that he drove
past this location the day prior to the incident, and if the hole was present
at that time, he did not see it. Further, Mr. Walker admitted that this hole
may be the type that literally occurs overnight. Mr. Walker submitted an
estimate into evidence in the amount of $1,865.60 for the cost of two new
wheels and an estimate for two new tires in the amount of$ 194.82. Thus,
claimants seek a total award of $2,060.42 in damages. Claimants have comprehensive
insurance coverage which covered at least a portion of this loss. Mr. Walker
could not recall the amount of claimants’ deductible feature and he did not
have a certificate of insurance coverage, also referred to as a declaration of
insurance or an abstract of coverage, available at the hearing of this matter.
Thus, the Court instructed claimants to send a copy of their certificate of
insurance coverage to the Court within thirty days which claimants have not
clone. Therefore, if there was a finding of liability on the part of
respondent, the Court would be unable to make an award without knowing the
amount of insurance coverage available. See
Sommerville v. Division of Highways. l8Ct.Cl.
110 (1991).
W.Va.] REPORTS
STATE COURT OF CLAIMS 69
Claimants contend that respondent knew or should have known of this hole in the
road and that it should have taken more timely and adequate action to remedy
this hazardous condition.
Respondent did not present any witnesses or direct testimony in this claim.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 81 (W.Va. 1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that the respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman
v. Dept. of Highways 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, claimants failed
to establish by a preponderance of the evidence that respondent had notice of
the defective condition on Cabin Creek Road which caused the damage to
claimant’s vehicle. The evidence also established that this road is known for
the propensity of holes to develop quickly and without warning due to the
number of coal trucks using the road on a daily basis.
Therefore, in view of the foregoing, the Court is of the opinion to and does
deny this claim.
Claim disallowed.
OPINION]SSUED DECEMBER 9, 2003
DAVID R. MARTIN
VS.
DIVISION OF HIGHWAYS
(CC-02-266)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage to his 1993 Buick Regal four door sedan
which occurred when he was operating his vehicle northbound on State Route 20
in Upshur County and the vehicle struck a hole on. the edge of the road.
Respondent was responsible at all times herein for the maintenance of State
Route 20 in Upshur County. The Court is of the opinion to make an award in this
claim for the reasons set forth below.
The incident giving rise to this claim occurred on June 27, 2002, between 11:45
a.m. and 12:00 noon. It was a clear and sunny day with no precipitation.
Claimant was on his way to the Veterans’ Administration Center. He was
traveling northbound on State Route 20 at approximately fifty miles per hour in
a fifty-five mile per hour zone. He testified that he travels this portion of
road approximately once every two weeks and he could not recall the last time
he had traveled it. At this location, State Route 20 is a twolane, asphalt road
with a yellow center line and white lines on both edges. There is a gravel berm
that varies in width along the right side of the road for northbound traffic.
Claimant was approximately two miles north of Buckhannon next to Pringle Tree
Road when his vehicle veered to the right and slightly off the edge of the
road. He stated that he slowed the vehicle and drove a short distance on the berm.
He attempted to maneuver
70 REPORTS STATE
COURT OF CLAIMS [W.Va.
the vehicle back onto the road when suddenly it struck a large hole on the edge
of the road. According to claimant, the right front tire absorbed the direct
impact which was significant. He stated that there is extra space along the
berm at this location which enabled him to maneuver the vehicle safely onto the
road. The force of the impact caused the right front tire to explode and the
right front wheel to sustain damage. According to claimant’s measurements, the
hole was approximately seven inches deep, two feet long and one foot wide.
Claimant submitted photographs of the hole into evidence at the hearing of this
matter which demonstrated that the hole was large and extended into the white
edge line of the paved portion of the highway. According to claimant, the hole
extended between five and six inches from the berm into the paved portion of
the road. As a result of the impact, claimant testified that he purchased a new
tire in the amount of $50.21, and a used aluminum wheel in the amount of
$63.60. However, at the hearing of this matter, the Court requested that
claimant provide the Court the original invoice for the used aluminum wheel and
his certificate of insurance coverage within thirty days. While claimant
provided the Court his certificate of insurance coverage, he did not send the
original invoice which the Court needs to verify the date this cost was
incurred. Thus, claimants are limited to a recovery of the cost for the new tire
in the amount of $50.21.
Claimant contends that respondent knew or should have known of this hole on the
edge of the road and that it should have made adequate repairs in a more timely
fashion.
Respondent’s position is that it did not have notice of this hole and that it
has acted reasonably and diligently under the circumstances.
Gregory Phillips, Highway Administrator for Upshur County, is responsible for
all highway maintenance in Upshur County including the portion of State Route
20 at issue. He testified that he is familiar with the location at issue and
that it is located approximately two miles north ofBuckhannon city limits. Mr.
Phillips testified that State Route 20 is a heavily traveled highway. The width
of the road is eighteen feet and the berms vary from three to six feet. Mr.
Phillips testified that respondent did not have prior notice of the hole at
issue. He testified that either he or his assistant drive the roads daily and
make visual inspections of all heavily traveled roads in Upshur County
including State Route 20. He stated that no more than three or four days would
pass before he or his assistant would travel State Route 20 and pass this
particular location and neither Mr. Phillips nor his assistant noticed the hole
at issue. According to Mr. Phillips, the hole claimant’s vehicle struck is “off
the edge of the road” and that a portion of the berm at this location has been
washed away by “torrential downpours.” He testified that Upshur County has had
approximately seventeen torrential downpours this past year, but he cannot
testify as to whether or not it rained the night prior to this incident.
Further, Mr. Phillips testified that the berm at issue is located on a downhill
slope. There is a steep hill above State Route 20 on the side of the road
opposite the location ofthis incident. There is a ditch-line at the bottom of
this hill that extends along the road. According to Mr. Phillips, a large
amount of water flows off the hillside and down onto the road; and due to this
past year’s “torrential rainfalls,” the ditch-line has been unable to hold this
water. Thus, the water flows onto the berm and washes it out. Mr. Phillips
testified that the water is creating a “cutter” along the edge of the road
where the stone on the berm of the road is washed away from the edge of the
asphalt creating a cut and a drop between the road and berm. He testified that
this type of condition has to be maintained constantly and that there is no way
to prevent it from occurring. He stated that if respondent repaired the hole at
issue, another one would occur as soon as it rains again. Mr. Phillips also
testified that the broken pavement and hole which claimant’s vehicle struck
could
W.Va.J REPORTS
STATE COURT OF CLAIMS 71
have been created overnight by the combination of a “torrential downpour” and a
coal or log truck driving on the edge of the road. However, Mr. Phillips also
testified that he could not determine approximately how long the hole had been
present because the area in the photographs introduced by the claimant was wet.
The fact that there is water in the hole leads him to believe that there could
have been a washout perhaps the night before.
It is a well established principle of law that the State is neither an insurer
nor a guarantor ofthe safety ofmotorists on its highways. Adkins v. Sims, 46 S.E.2d 81 (W.Va. 1947). In order to hold respondent liable, claimant
must establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103
(1986): Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent had
constructive notice of the hole and the broken edge of the pavement at the
location of this incident. The evidence established that there was a hole on
the berm that had eroded the pavement and extended well into and beyond the
white edge line. Based upon the size of this hole, its location, and the fact
that this is a heavily traveled highway, the Court concludes that respondent
should have known of this condition. The Court recognizes the validity of
respondent’s argument that heavy rainfalls, along with the location of the berm
on a dowii hill slope combine to create a potential condition that can occur
overnight, thus arguably denying respondent timely notice. While the Court
appreciates respondent’s position, it is of the opinion that given such a
hazardous condition as the one at issue, respondent could have at least placed
a warning sign prior to this location to provide notice of the condition at the
edge of the pavement to the traveling public.
In accordance with the finding of facts and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimant in
the amount of $50.21.
Award of $50.21.
OPINION ISSUED DECEMBER 9, 2003
JANET M. PECK
VS.
DIVISION OF HIGHWAYS
(CC-03- 168)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for personal injuries and property damage which
occurred when she was traveling north on State Route 2 between Glendale and
McMechen in Marshall County and her vehicle struck a large rock in the road.
Respondent was responsible at all times herein for the maintenance of State
Route 2. The Court is of the opinion to make an award in this claim for the
reasons stated more fully below.
The incident giving rise to this claim occurred on March 15, 2003, between 5:00
p.m. and 6:00 p.m. Claimant was traveling northbound on State Route 2 through a
stretch
72 REPORTS STATE
COURT OF CLAIMS [W.Va.
of highway referred to locally as the “Glendale Narrows.” She was proceeding to
her home in Benwood, Marshall County. She stated that the weather conditions
were clear and the road surface was in good condition. At this location, State
Route 2 is an undivided, four-lane asphalt highway. There are two southbound
lanes and two northbound lanes. Each lane is twelve and one-half feet wide.
There are center markings and white edge lines on each side of the road. Along
the northbound side of the road there is a sheer rock cliff and along the
southbound side of the road there is a stone wall between the road and a steep
slope to the river. On the evening at issue, claimant stated that there were
vehicles traveling in front of her and behind her in the left lane of travel
but there were no oncoming vehicles. Claimant was traveling in the left lane
between forty-five and fifty miles per hour. She had just driven up a small
grade in the road and she was starting to proceed down a small hill when she
attempted to maneuver into the right lane of travel. She looked in her rearview
mirror, her side mirror, and then turned to look back once more to make sure
the lane was clear. She had just maneuvered into the right lane when she
suddenly observed a large rock in the road in front of her. According to
claimant, she attempted to avoid the rock by quickly maneuvering the vehicle.
However, she was unable to avoid striking it with the vehicle. Claimant stated
that the vehicle struck the rock and “ran up over it” causing the vehicle to go
up in the air and come back down on two wheels. Claimant testified that the
vehicle went up in the air and landed on two wheels twice. Then, the vehicle
headed toward the stone wall between the road and the river. She attempted to
maneuver it back onto the road, but she was unable to regain control of the
vehicle which struck the stone wall and bounced back twice before coming to
rest after striking the stone wall a third time. Claimant described the rock
which her vehicle struck as being approximately thirty to thirty-six inches
wide and at least thirty-six inches high. She stated that the rock was already
in the road when the impact occurred. Further, claimant stated that the
incident occurred in the portion of “the narrows” closer to McMechen than to
Glendale. Claimant introduced photographs into evidence which depict numerous
rocks located between the edge of the road and the bottom of the hillside at
the location of this incident. As a result of the impact with the rock,
claimant’s vehicle was damaged and it had to be towed from the scene. Claimant
had an estimate of the damages to the vehicle which was determined to be a
total loss. In addition, claimant suffered personal injuries as a result of
this incident. She testified that she did not believe that she was injured at
the time of the incident and therefore did not go to the hospital that day.
However, she woke up the next morning in pain. She stated that she had a bruise
on her arm and some swelling in her leg. Claimant went to the Wheeling Hospital
Emergency Department where she was examined and x-rayed. Claimant suffered no
broken bones, and she was treated and released with a recommendation to follow
up with her family physician. She stated that she did follow up with Dr. Kelly
at the New Benwood Medical Clinic for one visit. Claimant testified that she
does not suffer from any long term physical injuries or chronic pain as a
result of this incident. Claimant also testified that she missed approximately
nine days of work as a result of not having a vehicle to travel to and from her
places of employment. However, claimant stated that she did not miss work as a
result of the physical injuries she suffered in this incident. She submitted
property damage estimates and a towing bill into evidence at the hearing.
Subsequent to the hearing, claimant submitted her medical bills and lost wages
to the Court at the Court’s request. Claimant incurred an expense at Wheeling
Hospital in the total amount of $298.75. Her health insurance carrier paid all
of this amount except $21.14, claimant’s co-pay. Claimant submitted a bill from
New Benwood Medical Clinic in the amount of $203.87 of which claimant paid a
co-pay in
W.Va.] REPORTS
STATE COURT OF CLAIMS 73
the amount of $10.00, and she submitted a receipt from Ohio Valley
Chiropractic, LLC in the amount of$ 105.24 which claimant paid in full.
However, it is unclear whether or not claimant’s health insurance covered or
could have covered any portion of this medical expense. Claimant also testified
that she purchased her vehicle on July 11, 2002, for $1,200.00, and she
submitted estimates from three different automobile dealers who valued the
vehicle at $1,200.00 at the time of this incident. In addition, claimant seeks
to recover the fifty dollar towing bill. Thus, claimant seeks recovery in the
amount of $1,386.38 in this claim.
Claimant asserts that respondent knew or should have known that this was a high
risk area for rock falls and yet failed to take timely and adequate measures to
remedy this hazardous condition.
It is respondent’s position that it acted diligently and took reasonable
measures to warn and protect the traveling public from the hazards of rock
falls.
Christopher Minor, Highway Administrator Two for respondent in Marshall County
at the time of this incident, is responsible for all routine maintenance in
Marshall County. Mr. Minor is familiar with the location of this incident
referred to as “the narrows.” This portion of Route 2 is approximately one mile
and a half in length. Mr. Minor testified that both the north and south bound
lanes are illuminated with high- intensity lights to help protect the traveling
public. He also stated that each lane is signed as a rock fall area. One sign
is located on the northern entrance which is on the Glendale end of the
“narrows” and the other is located at the southbound entrance of the “narrows”
on the McMechen side. He stated that the rock fall signs are approximately five
feet wide and five feet long and have flashing amber lights. According to Mr.
Minor, these were present at the time of claimant’s incident and she would have
driven past one of the signs. Mr. Minor testified that respondent has also
taken additional measures to protect the traveling public including patrolmen
operating on a full twenty-four hour cycle when there is a freeze/thaw cycle or
during a period of heavy rock falls. In addition, respondent relies on the
state, county, and local police to detect and report problems. Mr. Minor
testified respondent did not have notice of this particular rock fall until
8:00 p.m., after the incident occurred.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its highways. Adkins v. Sims, 46
S.E.2d 81 (W.Va.1947). In order to hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl.
103 (1986); Coburn v. Division of Highways; Pritt v. Dept. ofHighways, 16
Ct. Cl. 8 (1985). 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 v. Division of Highways, 21 Ct. Cl. 15 (1995); Foster v.
Division of
Highways, 23 Ct. Cl. 248 (2000).
In the present claim, the Court is of the opinion that respondent had actual
knowledge of a hazardous condition at the location of this incident on State
Route 2 in Marshall County. This area on State Route 2 between Glendale and
McMechen referred to as “the narrows” is a section of highway known for
dangerous rock falls which are a hazard to the traveling public. Foster v.
Division of Highways, 23 Ct. Cl. 248 (2000). Respondent’s remedial actions
have proven to be insufficient to protect the traveling public at this
location. Respondent has placed falling rock warning signs with flashing lights
and it has installed numerous lights to illuminate the road to assist drivers
in seeing rock falls. In addition, respondent also has regular patrols to
locate rocks on the road.
74 REPORTS STATE
COURT OF CLAIMS [W.Va.
However, these measures have proven insufficient to protect the traveling
public in this particular section of State Route 2. Thus, the Court is of the
opinion that respondent is liable for the damages which proximately flow from
its inadequate protection of the traveling public at this specific location of
State Route 2 in Marshall County. Thus, the Court is of the opinion to make an
award to the claimant for the value of her vehicle in the amount of$ 1,200.00,
$50.00 for the towing bill, $31.14 for the medical insurance copayments, and
$105.24 for the costs incurred in receiving chiropractic care for a total award
of $1,386.38. The Court has determined that claimant failed to establish by a
preponderance of the evidence that she suffered lost wages; therefore, claimant
may not make a recovery for lost wages.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimant in
the amount of$ 1,386.38.
Award of$1,386.38.
OPINION ISSUED DECEMBER 9, 2003
MARK 0. D1LLS
VS.
DiViSION OF HIGHWAYS
(CC-03-023)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage to his vehicle which occurred when he
was operating his vehicle on State Route 2 between New Martinsville and
Moundsville in Marshall County and a large rock fell from a hillside striking
his car. Respondent was responsible at all times herein for the maintenance of
State Route 2 in Marshall County. The Court is of the opinion to make an award
in this claim for the reasons set forth below.
The incident giving rise to this claim occurred on December 12, 2002, at approximately
7:45 p.m. Claimant was driving his 1992 Dodge Shadow ES Hatchback with his
girlfriend who was sitting in the front passenger seat. They were proceeding
northbound on State Route 2 from claimant’s home in New Martinsville to
McMechen in Marshall County. It was a dark, damp, cool evening. Claimant
testified that there had been a lot of “freeze/thaw” activity during this
period. Claimant travels this portion of road frequently and he had last done
so the prior day. State Route 2 at this location is a two-lane, asphalt highway
with a yellow center line and white edge lines on each side of the road. Each
lane is twelve and one-half feet wide and the total width of the road is
twenty-five feet. The shoulder of the road is approximately two and one half feet
wide on each side of the road. Claimant estimates that there is an approximate
twenty foot berm on the right side of the northbound lane where the
mountainside at issue is located. He believes that the berm on the opposite
side of the road is a little wider. Claimant stated that he was traveling
approximately fifty-five miles per hour just north of the Consolidated Coal
Company offices when suddenly a large rock fell from the hillside, bounced out
of the ditch on the side of the road, and struck the right front of the
vehicle.
W.Va.] REPORTS
STATE COURT OF CLAIMS 75
Claimant estimated that the rock was eighteen inches in diameter. He stated
that he did not see the rock until the impact. According to claimant, there
were two vehicles approximately one hundred-fifty to two hundred feet in front
of his vehicle and there were two vehicles behind him. He was unable to swerve
into the southbound lane because there was oncoming traffic. The impact totaled
claimant’s vehicle and caused claimant’s girlfriend to suffer a broken ankle.
However, claimant suffered no personal injuries. Claimant testified that the
area of this incident is a known rock fall area and he is aware that rock
slides have occurred often. He stated that there are piles of rocks on the road
side where the respondent has had to push them out of the travel portion of the
road. Further, claimant testified that respondent has attempted to prevent rock
slides from reaching the road at this location. He stated that respondent has
placed a permanent rock fence, and some barriers at this location. Claimant
submitted a tow bill into evidence in the amount of $180.00 and an estimate
from “Kelly Bluebook” which valued a 1992 Dodge Shadow ES Hatchback at
$1,885.00. Thus, claimant seeks a total award in the amount of$2,065.00.
Claimant testified that he purchased his vehicle approximately five months
prior to this incident and that it had between sixty and seventy thousand miles
on it. He also testified that the vehicle was in excellent condition other than
a problem with the paint not adhering well, to the body of the car.
Claimant contends that respondent knew or should have known that there was a
high risk of rock falls at this location, and yet failed to take adequate
action to remedy this hazardous condition.
It is respondent’s position that it has taken adequate measures to remedy rock
falls in this location and that it did not have notice of this particular rock
fall hazard.
Christopher Minor, Highway Administrator Two for respondent in Marshall County,
is responsible for all routine maintenance of highways in Marshall County
including the portion of State Route 2 at issue in this claim. Mr. Minor is
familiar with the location of this incident and refers to it as the “Southem
Narrows.” He testified that the “Southern Narrows” begin at the Consolidated
Coal Company offices where State Route 2 is a two-lane road, and extends north
for three-quarters of a mile to Washington Lands where State Route 2 becomes a
four- lane highway. He stated that this location is considered a rock fall area
and that it is signed as such. According to Mr. Minor, there is a rock fall
warning sign for northbound traffic approximately one hundred feet from the
intersection of”Consol Coal Offices.” He estimated that the portion of road
within this rock fall area is approximately three-quarters of a mile. Further,
he testified that rock fall warning signs have been present at this location
for at least twenty-six years. Mr. Minor testified that there are other areas
along State Route 2 that have more rock falls than the location at issue, but
he admitted that there are rock falls at the location of this incident
especially when there is a “freeze/thaw”cycle. Mr. Minor distinguished the
“Southern Narrows” from what is referred to as “The Narrows”. He stated that
“The Narrows” is that portion of State Route 2 located between Glendale and
McMechen approximately fourteen miles north of the location of the incident
herein. According to Mr. Minor, rock falls are less prevalent in the “Southern
Narrows.” He estimated that the “Southern Narrows” do not have a tenth of the
“situation” as does “The Narrows.” In addition, he stated that the “Southern
Narrows” area is not lighted.
Mr. Minor testified that respondent did not have notice of this rock fall until
after claimant’s incident. Respondent was called out at 8:00 p.m. by a deputy
sheriff who informed respondent that a vehicle had struck a rock in the road
while traveling through the “Southern Narrows.” Respondent introduced a DOH- 12
into evidence which indicated that it responded to an emergency regarding a
rock fall. Mr. Minor testified
76 REPORTS STATE
COURT OF CLAIMS [W.Va.
that respondent did not have any information about this particular rock falling
onto the road until after the incident occurred. Further, he stated that during
freeze and thaw cycles respondent has a patrolman on duty twenty-four hours per
day. However, at the time of this incident, respondent had only one shift and
it had to “call out” an employee on duty to respond to the scene to remove this
rock. Mr. Minor testified that since respondent was not operating on a
twenty-four hour patrol cycle it was probably not the standard freeze/thaw
winter cycle.
It is a well established principle that the State is neither and insurer nor a
guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 811 (W.Va. 1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways 16 Ct. C1.8 (1985).
In the present claim, the Court is of the opinion that respondent had
constructive notice ofthe rock fall hazards in the area at issue. While the
“Southern Narrows” portion of highway at issue does not present as great a risk
for rock falls as “The Narrows,” it is nonetheless a known rock fall area. The
evidence adduced at the hearing indicates that there is a significant number of
falling rock incidents at this location. Further, the road is not lighted which
makes it more difficult for the traveling public to avoid rocks that may be in
the road. In addition, the evidence established that this incident occurred
during a freeze/thaw cycle which increases the risk offalling rocks. However,
respondent failed to have a patrolman on duty at the time of this incident.
Instead, respondent had to call an employee at home to respond after the
incident occurred. The actions taken by respondent in this claim are not
adequate to protect the traveling public from a known hazard. Thus, the Court
is ofthe opinion that respondent is liable for the damages which proximately
flow from its inadequate protection of the traveling public at this specific
location of State Route 2 in Marshall County, and further, that respondent is
liable for the damages to claimant’s vehicle.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimant in
the amount of $2,065.00.
Award of $2,065.00.
OPINION ISSUED DECEMBER 9, 2003
KEVIN 0. WEST and KATRINA L. WEST
VS.
DIVISION OF HIGHWAYS
(CC-02-303)
Claimants appeared pro se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimants brought this action for damage done to their vehicle which occurred
when their son, Klint West, was driving their vehicle southbound on 1-79 near
Bridgeport, Harrison County, and the vehicle struck numerous large holes on the
berm of the
W.Va.} REPORTS
STATE COURT OF CLAIMS 77
highway. Respondent was responsible at all times herein for the maintenance of
1-79 in Harrison County. The Court is of the opinion to make an award in this
claim for the reasons set forth more fully below.
The incident giving rise to this claim occurred on June 21, 2002, at
approximately 6:45 a.m. Claimants’ son, Klint West, was driving their
2001 Mitsubishi Eclipse southbound on 1-79 on his way to attend a class. 1-79
at this location is a four- lane, divided interstate highway with two
southbound lanes and two northbound lanes. There is a white center line and
yellow lines on both edges of the road. There is an asphalt berm on both sides of
the southbound lanes and a grass median between the northbound and southbound
lanes. Klint West had just traveled through a construction zone near the
Meadowbrook Road Exit in Bridgeport. He stated that he was traveling between
forty-five and fifty miles per hour as he traveled out of the construction zone
which had a posted speed limit of fifty miles per hour. Klint West testified
that he remained in the left lane of travel as he drove out of the construction
zone. He also stated that there was a lane shift near the end of the
construction zone. At this location, he approached an eighteen wheel truck in
the right lane of travel. Mr. West testified that the truck was traveling
adjacent to claimants’ vehicle for approximately three hundred to four hundred yards
when he noticed that it began to cross over the center line. He was afraid that
the truck was going to strike his vehicle so he maneuvered it to the left onto
the edge of the berm. According to Mr. West, he drove on the berm approximately
ten yards when, suddenly, the vehicle struck numerous large holes in the berm.
Mr. West stated that there were approximately ten holes each of which was
approximately six to eight inches deep and significantly long. The impact
caused both left side tires to go flat immediately. Further, he stated that he
could not maneuver the vehicle back onto the road because of the tire and wheel
damage as well as a large “lip” between the edge of the road and the berm. Mr.
West testified that if he had maneuvered the vehicle back onto the road the
vehicle would probably have struck the eighteen wheel truck. Fortunately, he
was able to maintain control of the vehicle so he drove onto the median and
parked.
Claimant Kevin West testified at the hearing of this matter regarding the scene
of this incident and the damage caused to claimants’ vehicle. He stated that he
arrived at the scene of the incident fifteen minutes after his son made a
telephone call. He stated that there was a State Trooper already at the scene,
but he did not fill out an accident report. Kevin West also testified that he
observed two or three hubcaps around the location of this incident. According
to Kevin West, both left side tires and wheels were destroyed. In addition, he
stated that there was damage underneath the front of the vehicle as well as a
bent cross-member and body damage. The vehicle had to be towed to claimants’
home and later to a repair shop. Claimant Kevin West submitted a repair bill
into evidence in the amount of $3,070.42. Claimants did not present a receipt
for the tow bills with the name of the company or the date and thus the Court
will not consider those bills. However, claimants had comprehensive insurance
coverage to cover this loss, with a deductible feature of $500.00. Thus,
claimants are limited to the amount of their insurance deductible of $500.00.
See Sommerville/State Farm Fire and Casualty v. Division of Highways,
18 Ct. Cl. 110 (1991).
Claimants assert that respondent failed adequately to maintain the berm of the
road at the location of this incident and that its failure to do so was the
proximate cause of their damages.
Respondent contends that it did not have notice of the condition of the berm or
a reasonable amount of time to take corrective action.
78 REPORTS STATE
COURT OF CLAIMS [W.Va.
Gary Dyer, Supervisor for respondent at Lost Creek in Harrison County, is
responsible for the maintenance of 1-79 in Harrison County from the 99 mile
post to the 132 mile post which includes the location at issue. Mr. Dyer
testified that either he or one of his crew members patrols this location
daily. He stated that the total width of the two southbound lanes is
twenty-four feet, making each lane twelve feet wide. He also stated that the
berms are made of asphalt and are approximately four feet wide. According to
Mr. Dyer, he was notified of this incident on June 21, 2002, and he personally
went to the location and observed numerous holes in the berm of the left lane.
He stated that respondent made temporary cold patch repairs that same day and
on June 26, 2002, permanent repairs were made using asphalt. Mr. Dyer testified
that respondent did not have any prior reports of holes in the berm at this
location. Further, it is his opinion that this condition did not necessarily
occur over a significant period oftime, but, instead it could have occurred
quickly, if a lot of traffic had been forced to drive onto this portion of the
berm. He stated that the berm could have deteriorated within fifteen to twenty
minutes with heavy traffic.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its roads and highways. Adkins v.
Sinis, 46 S.E.2d 81 (W.Va. 1947). To hold respondent liable, the claimant
must establish by a preponderance of the evidence that the respondent had
actual or constructive notice ofthe defect in question and a reasonable amount
of time to take corrective action. Chapman v. Dept. of Highways, 16 Ct.
Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
Respondent has a duty to maintain the berm of a highway in a reasonably safe
condition for use when the occasion requires. Compton v. Division of
Highways, 21 Ct. Cl. 18 (1995). Liability may ensue when a motorist is
forced onto the berm in an emergency or otherwise necessarily uses the berm of
the highway and it fails. Sweda v. Dept. of Highways, 13 Ct. Cl. 249
(1980).
In this claim, the Court is of the opinion that the evidence established that
1-79 at the location of this incident presented a hazardous condition to the
traveling public. Further, the evidence established that the driver of the
vehicle, Klint West, used the berm in an emergency or, at the least, under
necessary circumstances. The photographs introduced by the claimants
established that there were numerous holes in the berm and that the berm was
not level with the paved portion ofthe road. Ifrespondent did not have actual
notice of the condition of this berm, the evidence established that it at least
had constructive notice. Respondent should have known that the construction
work being performed near the location of this incident would force traffic
onto the berm and cause damage. Respondent could have placed warning signs or
barrels at the location where the berm was damaged to give notice to the traveling
public. Thus, the Court concludes that negligence on the part of the respondent
resulted in the damages to claimants’ vehicle.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimants
in the amount of $500.00.
Award of $500.00.
OPINiON ISSUED DECEMBER 9, 2003
MARTHA R. PERRINE
W.Va.] REPORTS
STATE COURT OF CLAIMS 79
VS.
DIVISION OF HIGHWAYS
(CC-03-255)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for damage to her vehicle which occurred when she
was operating her vehicle on State Route 41 in Persinger, Nicholas County, and
the vehicle struck a large hole in the road. Respondent was responsible at all
times herein for the maintenance of State Route 41. The Court is of the opinion
to make an award in this claim for the reasons set forth more fully below.
The incident giving rise to this claim occurred on April 22, 2003, at
approximately 1:00 p.m. Claimant was driving her 1997 Dodge vehicle eastbound
on State Route 41 from Craigsville to Summersville. The weather was sunny and
the roads were dry. State Route 41 at this location is a two-lane, asphalt
highway with double yellow center lines and white lines on the edges. Claimant
travels this portion of State Route 41 to Summersville approximately once a
week. The last time she had traveled it prior to this incident was
approximately one week earlier. Claimant testified that she was traveling
between 45 to 50 miles per hour in a 55 mile per hour zone. As she approached a large oncoming log truck that
crossed the centerline, she believed that she had to maneuver her vehicle to
the edge of the road and onto the berm. When she did so, the right front tire
struck a large hole on the berm of the road resulting in a serious impact.
Claimant stated that the hole her vehicle struck resulted from broken pavement.
She stated that the hole extended from the berm, through the white edge line
and approximately ten to twelve inches into the travel portion of the road.
According to claimant, the hole was fourteen to sixteen inches wide and
approximately three to four feet long. In addition, claimant testified that the
hole was significantly deep. Claimant testified that the hole was deep enough
to make it difficult for her to remove the vehicle from it. As a result,
claimant’s right front tire and wheel were destroyed. She also asserts that her
right rear tire was damaged as a result of this incident. Although. she does
not recall her head striking anything in the vehicle, she does recall that
there was a severe impact when the vehicle struck the hole. She stated that the
impact caused a feeling of pressure in her head and that “it just felt like my
head exploded.” Claimant also stated that later that night she could not see
for a while. Claimant went to the emergency room at Summersville Memorial
Hospital the next moming complaining of severe headaches which she attributed
to this incident. She was x-rayed, treated, and released from the emergency
room the same day with instructions to follow up with her family physician.
According to claimant, her family physician directed her to have an MRI of her
head and MRA of the neck to determine whether she had suffered a stroke.
Claimant testified that she never had these type of headaches until this
incident. Further, she stated that she continues to have severe headaches and
she is not sure at this time whether the headaches will continue in the future.
In addition, claimant visited an ophthalmologist to have her eyes examined due
to the headaches and temporary loss of vision on the night of this incident.
Claimant submitted a repair bill to the Court in the amount of$ 193.98 for the
cost of two tires. Claimant’s nephew bought her a new wheel and loaned her the
money for the tires. However, claimant did not know the cost of the wheel, nor
did she have any method to establish its value. Claimant also seeks an award
for medical expenses she
80 REPORTS STATE
COURT OF CLAIMS [W.Va.
incurred as a result ofinjuries she sustained in this incident. The total
amount of medical expenses claimant alleges she incurred as a result of this
incident are $3,487.70. A portion of claimant’s medical expenses were covered by
Medicare health insurance coverage, a collateral source. Thus, claimant may
only recover her out-of-pocket medical expenses in the amount of $297.94.
Claimant seeks a total award of $491.92.
Edward Brown, assistant supervisor for respondent in Nicholas County is
responsible for monitoring and maintaining the highways in Nicholas County. He
is responsible for the portion of highway at issue and is familiar with the
location of this incident. He stated that State Route 41 is approximately
twenty-two feet wide, each lane being eleven feet wide from the centerline. Mr.
Brown described the road at the location of this incident as an elevated
downhill curve. He testified that the berm is difficult to maintain because of
the high volume of traffic, and the large log trucks which use the road. He
also stated that this portion of the road is in a turn and the berm is
difficult to hold because the traffic including heavy log trucks drive on the
berm at this location. According to Mr. Brown, respondent maintains the berm at
this location by cleaning the berm at least three times a year except during
the winter when it cannot be done. He stated that if he or one of his crew
members notices a hole in the berm during the winter months, they will fill it
with gravel until warmer weather arrives. According to Mr. Brown, the last time
the berm at issue was maintained was either October or November 2002. He stated
that either he or his foreman travels this portion of road almost daily. He
also testified that while there were some portions of the road that were
deteriorating including the curve at issue, he did not have notice of this
specific hole prior to this incident. Mr. Brown testified that if he or his
crew locates a hazard, it will be marked with barrels or hazard boards until
they can repair it.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 81 (W.Va. 1947). To hold respondent liable for a road defect
of this type, claimant must establish by a preponderance of the evidence that
the respondent had actual or constructive notice ofthe road defect in question
and a reasonable amount oftime to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt V. Dept.
of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that the evidence established
that this portion of State Route 41 presented a hazard to the traveling public.
The size of the hole and its location in the berm leads the Court to conclude
that the respondent had constructive notice of this hole. The incident occurred
during springtime when respondent should have been able to repair this defect.
Further, the hole was located in a curve in the road that respondent knew had a
tendency to deteriorate quickly because of the large number of log trucks that
travel on the edge of the berm at this location. This created an even greater
hazard for the traveling public. Respondent should have at least placed waming
signs or hazard paddles near this location. Thus, the Court finds respondent is
liable for the damages which proximately flow from its negligence in this claim
which include the damage to claimant’s vehicle, minus the amount of the wheel, and
the medical expenses claimant incurred.
Accordingly, the Court makes an award to the claimant in the amount of
$491.92.
Award of $491.92.
W.Va.] REPORTS
STATE COURT OF CLAIMS 81
OPINION ISS UED DECEMBER 9, 2003
ALAN M. HICKS
VS.
DIVISION OF HIGHWAYS
(CC-03-137)
Claimant appearedpro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage to his 2000 Chrysler Sebring which
occurred when he was traveling on the U.S. Route 50 exit ramp, at the West
Virginia Avenue Exit in Clarksburg, Harrison County, and his vehicle struck a
large hole in the road. Respondent was responsible at all times herein for the
maintenance of U.S. Route
50. The Court is of the opinion to deny this claim for the reasons set forth
more fully below.
The incident giving rise to this claim occurred on February 24, 2003, at
approximately 8:00 a.m. Claimant was driving his daughter to school in
Clarksburg. The weather was clear but there was still some snow on the roads
remaining from a week long snow storm that had just ended. Claimant stated that
some of respondent’s employees were continuing to clear the roads on the
morning of this incident. Claimant testified that he was traveling at
approximately thirty-five miles per hour as he turned onto the U.S. Route 50
exit ramp at West Virginia Avenue. He estimated that he was approximately two
car lengths onto the ramp, when suddenly he saw a large hole in the road in
front of him which he was unable to avoid. His vehicle’s right front tire
struck the hole. Claimant described the impact as serious, but he did not
realize that his vehicle suffered any damage until a few days later when he
noticed that the outside portion of the right front wheel was bent. According
to claimant, this portion of U.S. Route 50 is a one lane exit ramp. He stated
that there is a median on both sides of the travel portion of the road. He
testified that the hole was located on the right side of the road approximately
one to two feet from the white edge line. He also testified that the hole was
approximately eighteen to twenty-four inches in diameter and was “fairly deep”.
According to claimant, the last time he traveled this portion of highway was
approximately one week prior to this incident. Further, he estimated that he
travels this road twelve times per week when he takes his daughter to school.
However, he had not traveled through this location for one week because his
daughter’s school was canceled as a result of the large snow storm. Claimant
testified that he had never noticed the hole prior to this incident. Claimant
submitted a repair bill into evidence at the hearing in the amount of $436.72
for the cost of replacing the wheel.
Claimant asserts that respondent knew or should have known that this hole was
present and taken timely and adequate measures to remedy the hazard.
It is respondent’s position that it was on snow removal and ice control at the
time of this incident and that it did not have notice of this hole until after
the incident.
DavidAdams, the Transportation Crew Chief for respondent at Tunnel Hill, U.S.
Route 50 in Harrison County, is responsible for maintaining U.S. Route 50. Mr.
Adams testified that he is familiar with the portion of road at issue. He
stated that this incident occurred on a short exit ramp on U.S. Route 50 that
is approximately twenty-four feet wide at the beginning of the ramp. The ramp
narrows to approximately twelve feet and
82 REPORTS STATE
COURT OF CLAIMS [W.Va.
it eventually becomes a two-lane divided highway. Mr. Adams testified that
respondent was involved in snow removal and ice control (also referred to as
“SRIC”) on the date of this incident and during the most of February 2003.
According to Mr. Adams, when respondent is operating in SRIC mode, it is considered
to be an emergency condition during which time all employees work to remove
snow and ice from the roads with all other activities suspended. Further, Mr.
Adams testified that February 2003 was an unusually harsh month with a lot of
snow and ice. He also testified that neither he nor his crew received any prior
complaints about the hole claimant’s vehicle struck.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 81 (W.Va. 1947). To hold respondent liable for defects of this
type, claimant must establish by a preponderance of the evidence that
respondent had actual or constructive notice of the road defect in question and
a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, claimant did not
establish that respondent had notice of the hole on the U.S. Route 50 exit
ramp. There was no evidence presented by claimant that respondent did not take
reasonable steps to ensure the safety ofthe traveling public at this location
on U.S. Route 50. Respondent was also operating in SRIC mode which is an
emergency condition. It was required to concentrate its activities on snow
removal and ice control for most of February 2003. While the Court is
sympathetic with the claimant’s loss, there is insufficient evidence of
negligence upon which to base an award.
Therefore, in view of the foregoing, the Court is of the opinion to and does
deny this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 9, 2003
ROBERT G. SNODERLY
VS.
DIVISION OF HiGHWAYS
(CC-03-065)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for damage to his vehicle which occurred when he
was traveling south on U.S. Route 250 near Fairmont, Marion County, and the
vehicle was struck by a large rock. Respondent was responsible at all times herein
for the maintenance of U.S. Route 250 in Marion County. The Court is of the
opinion to deny this claim for the reasons set forth more fully below.
The incident giving rise to this claim occurred on February 1, 2003, at
approximately 5:00 p.m. Claimant was traveling southbound on U.S. Route 250
from Fairmont to South Fairmont in his 1998 C24 Chevrolet Cavalier. There was a
light misty rain. It was still daylight and claimant could see the road without
the use of his
W.Va.] REPORTS
STATE COURT OF CLAIMS 83
headlights. U.S. Route 250 at this location is a two-lane, asphalt highway with
double yellow center lines and white lines on the edges. For southbound traffic
there is guard rail and a narrow berm on the left side of the road and the
Tygart River is below. On the northbound side of the road there is a rock wall
approximately one hundred feet high and a berm approximately ten to twelve feet
wide. Claimant was traveling with his wife and children as passengers in the
car. He estimates that he was traveling forty to forty-five miles per hour as
he proceeded toward South Fairmont. Claimant was approximately one-quarter of a
mile past Mary Lou Retton Drive when suddenly he saw numerous rocks falling off
the rock cliff to his right. He slowed down and glanced in his rear view mirror
to make sure the long line of traffic behind him was not going to strike his
vehicle. He looked to the front again and saw a large rock fall over the hood
of the vehicle and lodge underneath his vehicle which prevented it from moving.
Claimant testified that he had to use a car jack to raise his vehicle and
remove the rock. He described the rock as ten to twelve inches thick and
sixteen inches long. Claimant removed the rock from the road and estimated that
it weighed forty-five to fifty pounds. According to claimant, he traveled this
road between ten to twenty times per year and that he had last traveled through
this location approximately one or two months prior to this incident. Claimant
submitted repair bills and an estimate into evidence at the hearing in the
amount of $1,227.73 for the damage to his vehicle. The rock destroyed the oil
pan, gasket, and the filter. He also received an estimate for the damage to the
inner fender and the front end section of the vehicle.
Claimant contends that respondent knew or should have known that this location
presented a rock fall hazard and failed to take proper precautions to remedy
the hazardous condition.
It is respondent’s position that it acted reasonably and diligently in
maintaining the rock cliff at this location and that it did not have notice of
this rock fall until after it occurred.
George Steorts, is the County Administrator for respondent in Marion County and
is responsible for the maintenance of the roads and highways in Marion County.
He testified that he is responsible for maintaining U.S. Route 250 and that he
is familiar with the location of this incident. Mr. Steorts stated that U.S.
Route 250 is a primary route with a high volume of traffic. He testified that
this location has been a known rock fall area. However, he stated that
respondent does not have warning signs in place, but it does have hazard
barrels sitting on the berm approximately two or three feet off of the road to
warn the traveling public that the area is prone to having some small debris
fall onto the road. According to Mr. Steorts, respondent undertook a project at
this location in 2002, to scale down the “high wall”or rock cliff in order to
prevent rock falls. Prior to the project in 2002, there had been a major rock
fall at this location that shut down the road. Respondent removed approximately
ten to fifteen feet from the top ofthe rock cliff and created a “rock bench”
approximately ten feet up the wall. The “rock bench” is six feet wide and is
designed to stop rocks and debris from falling onto the highway below. In
addition, respondent widened the berm to reduce the chance of rocks falling
onto the travel portion of the road. According to Mr. Steorts, respondent has
not had any large rock falls at this location since the project was completed.
He stated that his crews have occasionally reported clearing some smaller rocks
off the road, but not large rocks such as the one in this claim. Further, he
testified that respondent did not have notice of this particular rock fall
until after the incident.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of motorists on its highways. Adkins v. Sims, 46
S.E.2d 81
84 REPORTS STATE
COURT OF CLAIMS [W.Va.
(W.Va. 1947). The Court has consistently held that the unexplained falling of
rock or rock debris on the road surface is insufficient to justify an award. Copen
v. Division of Highways, 23 Ct. Cl. 272(2001); Mitchell v. Division
ofHighways, 21 Ct. Cl. 91(1996). In order to hold respondent liable for
defects of this type, claimant must establish by a preponderance of the
evidence that respondent had actual or constructive notice of the road defect
in question. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Hammond
v. Division of Highways, 11 Ct. Cl. 234 (1977). Claimant must also
establish that respondent had a reasonable amount of time to take corrective
action. Alkire v. Division of Highways, 21 Ct. Cl. 179 (1997); Pritt
v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that claimant did not
establish that respondent had notice of a potential hazardous condition at this
location. The evidence adduced at the hearing established that respondent had
worked on the rock cliff in 2002 in an attempt to prevent more rock falls at
this location. Considering the mountainous terrain on U.S. Route 250 at the
scene of the accident herein, the measures taken by respondent were reasonable
and diligent. Further, respondent did not have notice of this particular rock
fall until after it had occurred. Thus, respondent did not have a reasonable
amount of time to take corrective actions. While the Court is sympathetic to
claimant’s plight, 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 as stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 9, 2003
WAYNE COUNTY COMMISSION
VS.
DIVISION OF CORRECTIONS
(CC-03-428)
Claimant appeared pro se.
Charles Houdyschell, Jr., 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, Wayne County Commission, is responsible for the incarceration of
prisoners who have committed crimes in Wayne County, but have been sentenced to
facilities owned and maintained by respondent, Division of Corrections.
Claimant brought this action to recover $5,565.00 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. ofMineral 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.
W.Va.] REPORTS
STATE COURT OF CLAIMS 85
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, but stated
that the correct amount owed to claimant is $5.525.00. The claimant has
reviewed the claim and agrees that the amount of $5,525.00 is the correct
amount owed.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $5,525.00.
Award of $5,525.00.
OPINION ISSUED JANUARY 8,2004
JOHN DEPTO and MARY ANN DEPTO
VS.
DIVISION OF HIGHWAYS
(CC-02-056)
Claimants appearedpro Se.
Andrew F. Tarr, Attorney at Law, for
respondent
PER CURIAM:
Claimants brought this action to recover costs incurred from water damage to
their real estate and personal property allegedly due to the negligent maintenance
of the drainage system along County Route 86 in Marshall County. At the hearing
ofthis claim, the Court amended the style of the claim to reflect that Mary Ann
Depto is ajoint owner of the real estate and property at issue and is a party
in interest, along with her husband John Depto. Respondent is at all times
herein responsible for the maintenance of County Route 86 in Marshall County.
The Court is ofthe opinion that respondent is liable in this claim for the
reasons stated more fully below, and, further, the Court considers the claim to
have been heard on the issue of liability only.
Claimants’ property and home are situate on Grandview Road designated as County
Route 86 in Glendale, Marshall County. Claimants bought the real estate and
home in October of 1978, where they have resided ever since. The property
consists of approximately three-hundred feet of frontage property along County
Route 86. County Route 86 is a two-lane blacktop highway with double yellow
lines and white lines along the edges. Respondent re paved the portion of
County Route 86 adjacent to claimants’ property in 1990. County Route 86 has a
gradual slope toward claimants’ property. There is a ditch line on the opposite
side of the road from the claimants’ property. The property north of claimants’
property rises to a higher elevation and levels off into a plateau. The plateau
extends back to the right of way from County Route 86 toward claimants’
property. Claimants’ property is lower than County Route 86. The claimants have
a gravel driveway in front of their home which is on an uphill incline at an
approximate ten degree angle from their home and it extends from their garage
up the hill where it intersects with County Route 86. There is a ditch line in
front of claimants’ property which should connect to a culvert beneath the
driveway, but claimants assert that respondent covered this culvert and it no
longer carries water flowing from respondent’s ditch line. The driveway is
elevated near the garage where it is also used as a small parking lot. At this
location, there is a cinder-block retaining wall that retains the portion
86 REPORTS STATE
COURT OF CLAIMS [W.Va.
of the elevated driveway next to the garage. Claimants assert that this wall
cracked over a period of time due to water seeping into the cinder-block
foundation and freezing. The wall was eventually replaced by the claimants at
their own expense. The drainage system at issue is located between County Route
86 and claimants’ property. It begins north of claimants’ property and extends
south underneath claimants’ driveway and underneath their neighbor’s driveway
to the south. According to Mr. Depto, prior to respondent covering up the
culvert in 1990 with asphalt, the water would flow from the culvert into a
catch basin at the bottom ofthe hill, at which point it would continue to flow
down hill. Mr. Depto testified that the culvert pipe at issue is approximately
ninety feet long from start to finish and approximately ten to twelve inches in
diameter.
Claimants contend that respondent is responsible for the maintenance of the
drainage system located between County Route 86 and claimants’ property, and
that it negligently covered the inlet of a culvert underneath
claimants’ driveway with asphalt proximately causing water to drain onto
claimants’ property. Claimants also contend that respondent negligently
diverted the flow of water onto their property when it re paved County Route
86.
It is respondent’s position that it did not cover or otherwise block the
claimants’ culvert, and that it is not responsible for maintaining culverts or
drainage systems on or under private driveways. Respondent also asserts that
there are other causes to claimants’ flooding problems for which it is not
responsible.
Mr. Depto testified that he recalls respondent re paving the portion of County
Route 86 adjacent to his property twice in the twenty-five years that he and
his wife have resided there. The most recent re paving project was in 1990. Mr.
Depto testified that ever since the 1990 re paving project the claimants’
property has been flooded during most heavy rainstorms. Claimants introduced
into evidence numerous photographs depicting a large amount of rain water
washing down onto their driveway during a storm in the spring of 1996 or 1997.
Mr. Depto also testified that when there are heavy rainstorms during the winter
the water often freezes and creates a thick layer of ice. According to Mr.
Depto, this ice has prevented him and his wife from driving their vehicles out
of the driveway on numerous occasions over the years, and it has caused several
vehicles to slide off the driveway and over a hill. Fortunately, there have not
been any serious injuries. Claimants also introduced into evidence photographs
depicting the cinder-block retaining wall cracking and breaking apart,
allegedly due to water seeping into the foundation and freezing. Mr. Depto
testified that this is a result of the numerous flooding incidents, especially
those during the winter months that have caused the foundation to crack and
give away. Mr. Depot stated that prior to the re paving work performed in 1990,
the culvert which runs underneath the driveway was open on both the north and
south ends. Further, he stated that they had not had flooding problems prior to
the re paving. According to Mr. Depot, during the re paving respondent extended
the asphalt apron over too far onto his driveway covering the northern inlet
side of the culvert with asphalt. Thus, no water has been able to flow into the
culvert from this location since 1990. Mr. Depot also testified that he
contacted respondent on numerous occasions in an attempt to remedy this
problem. However, he stated that respondent did not want to uncover the clogged
culvert but instead wanted to dig another ditch in his yard and divert the
water in another direction. He stated that respondent did not offer any viable
solution to the problem despite numerous visits by it agents and employees. In
addition to the blocked culvert, Mr. Depto testified that respondent raised the
height of County Route 86 significantly which has made it higher than the
claimants’ property. Now, instead of the excess water draining off the opposite
side of the road and into the ditch
W.Va.] REPORTS
STATE COURT OF CLAIMS 87
line where there are no homes, most of it flows onto the claimants’ driveway.
Roger Cain, the Resurfacing Coordinator for the respondent in Marshall County
at the time of this incident, testified that he is responsible for overseeing
all resurfacing projects in Marshall County. He recalls overseeing the
resurfacing project at issue in 1990. He testified that respondent removed the
excess build up of shoulder material, so as to divert water from the roadway to
the ditch line. Mr. Cain does recall putting down an asphalt apron at the
claimants’ driveway, but he stated that he and his crew did not pave over any
pipe in that area that they could see. Furthermore, Mr. Cain testified that the
asphalt apron did not extend in toward the claimants’ driveway quite as far as
Mr. Depto indicated. However, Mr. Cain did state that respondent dug a ditch
line north of the claimants’ property. When asked where he thought that the
water in the ditch line would go, Mr. Cain stated that possibly it was just
going to disperse into the claimants’ driveway or wherever it went before this
project. Then, he stated that he really did not know where the water was going
to go. He knew that it was going onto the road prior to this project which
respondent was trying to stop. According to Mr. Cain, the respondent does not
install driveway pipes on State projects such as this one. He stated that only
in some areas where there is a federally funded project does the State install
driveway pipes. Finally, Mr. Cain stated that he did not know if the claimants
had a culvert pipe underneath their driveway, but if they did, and it was
located where the claimants’ allege it is, then it would be close to the
respondent’s right-of-way.
Ron Faulk, the County Supervisor for the respondent in Marshall County at the
time of this incident, testified that he was responsible for supervising the
maintenance of the highways in Marshall County including County Route 86. He
recalls being contacted by Mr. Depto in 1990 regarding this flooding problem.
Specifically, he recalls Mr. Depto complaining about the culvert being blocked.
He testified that he sent a couple of employees to the claimants’ property to
search for the entrance to the culvert that Mr. Depto was alleging was blocked.
The employees were unsuccessful in finding the culvert. Further, he also stated
that the County Maintenance Organization was not permitted to install culverts
under private driveways in most circumstances. Thus, even if the respondent had
found a culvert under claimants’ driveway, he could not simply uncover the
claimants’ culvert and install a new one. Mr. Faulk did admit that there was a
drainage system with culverts near claimants’ property and that the water
flowed under the claimants’ neighbor’s driveway and then over the hill. However,
he is not sure who installed this culvert because it was done before he came to
work for respondent. Mr. Faulk testified that he and a few engineers tried to
suggest methods to resolve the claimants’ problem but none of the suggestions
were suitable for the claimants. Mr. Faulk testified that ultimately it is the
property owners’ responsibility to install a culvert under their driveway, and
that respondent has a procedure that requires a property owner to apply for a
permit based upon a detailed plan of what is going to be done. Further, the
property owner’s plan must meet respondent’s specifications and the property
owner must perform the job and pay for it. Then, at that point the respondent
will assist in the maintenance of the culvert.
Robert Whipp, the Assistant District Engineer for the respondent in Marshall
County at the time of this incident, testified that he is responsible for
supervising maintenance work, construction work, and basically all other
departments within his district which includes Marshall County. He is familiar
with the portion of County Route 86 at issue as well as the drainage system. He
stated that he first became aware of claimants’ problem with flooding shortly
after respondent re paved County Route 86 in 1990. Mr. Whipp testified that
County Route 86 in front of claimants’ property is super
88 REPORTS STATE
COURT OF CLAIMS [W.Va.
elevated which means that the road is titled from one side to the other.
According to Mr. Whipp, the portion of County Route 86 adjacent to claimants’
property is the high side of the road and the opposite side of the road is the
low side. He visited the claimants’ property last year to make this and other
observations regarding the flooding problem. Mr. Whipp also stated that “where
the dirt and ground beside the road is higher than the ditch line and you get
to where that dirt drops below the road you just take your ditch line into that
area to drain the water away from the road, and at that time it becomes the
land owner’s responsibility.” He stated that it is the property owner’s
responsibility to maintain driveways. Further, he testified that it is
respondent’s policy and practice to divert water off of its highways and it
becomes the responsibility for the surrounding property owners to divert the
water off of their properties. Additionally, Mr. Whipp testified that in his
opinion there are independent contributing factors to the claimants’ water
problems that are not the fault of the respondent whatsoever. First, most of
the water is coming off of claimants’ northern neighbor’s property and flowing
down hill onto their property. The reason being that the neighbor’s property is
elevated higher which is causing this water to flow down hill onto the
claimants’ property. Second, he stated that the claimants need to reestablish
the driveway pipe to help divert the flow of some of the water flowing onto
their driveway.
To hold respondent liable for damages caused by inadequate drainage, claimant
must prove by a preponderance ofthe evidence that respondent had actual or
constructive notice of the existence of the inadequate drainage system and a
reasonable amount of time to correct it. Ashworth v. Div. of Highways 19
Ct. Cl. 189 (1993); Orsburn v. Div. of Highways, 18 Ct. Cl. 125 (1991).
In the present claim, the Court is of the opinion that the proximate cause of
the damage to claimants’ property is respondent’s failure to maintain an
adequate drainage system for the water flowing from County Route 86. The
evidence established that respondent knew of the drainage problem at this
location since the 1990 re-paving project. However, respondent failed to
provide an adequate drainage system despite numerous requests for help from the
claimants. The claimants also established the fact that an excessive amount of
water was flowing from County Route 86 onto their driveway and not from the
claimants’ neighbor’s property. Further, claimants established that respondent
knew or should have known that it negligently covered the inlet of claimants’
culvert with asphalt and yet failed to correct this mistake. Thus, the Court
has determined that the claimants herein may make a recovery for the damages
proximately caused to their property. Finally, the Court is concerned about
discovering from respondent’s own witnesses that it has a “policy” of diverting
water from the State’s roads and highways onto adjacent property owners to deal
with at their own peril, and then offer little or no assistance to the property
owners after doing so. This policy neither conforms with the law of this State
nor is it fair and equitable to place such a burden on the property owners of
the State of West Virginia.
In accordance with the findings as stated herein above, the Court directs the
Clerk of the Court to set this claim for hearing on the issue of damages as
soon as may be practicable.
OPINION ISSUED JANUARY 8, 2004
JOHN DEPTO and MARY ANN DEPTO
W.Va.] REPORTS
STATE COURT OF CLAIMS 89
VS.
DIVISION OF HIGHWAYS
(CC-02056)
(Damages)
Claimants appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURTAM:
The Court issued an Opinion in this matter on March 14, 2003. on the issue of
liability only wherein the Court determined that respondent was liable for
negligently maintaining the drainage structure along County Route 86 in
Marshall County which is adjacent to claimants’ property. The issue of damages
in the claim was heard by the Court on September 10, 2003, at which time
testimony was presented and evidence adduced on this issue. The Court is of the
opinion to make an award in this claim in the amount of $8,337.30 for the
reasons set forth more fully below.
Claimants brought this action for water damage to their property located on
County Route 86 in Glendale, Marshall County. Originally, claimants sought $7,000.00
for this damage, but after having prevailed on the liability portion of their
claim, they sought an award of $52,600.00.
The damages asserted by the claimants include the cost of having a new culvert
and catch basin installed at their driveway based upon an estimate from a
construction company in the amount of $3,500.00: however, subsequent to the
hearing of this matter, the Court received information from the parties that
respondent had replaced the culvert at claimants’ driveway to the satisfaction
of the claimants. Thus, claimants waive this portion of their claim. Claimants’
damages being considered by the Court at this time include an estimate from
Miller Construction Company for the cost of replacing a retaining wall at the
bottom of their driveway in the amount of $5,653.00 and an invoice in the
amount of$ 184.30 for limestone purchased to repairtheir driveway. The Court
has determined that these repairs were necessary and reasonable and that
claimants be awarded $5,837.30 for these actual damages. Further, claimants
seek an award for neglect, mental anguish, and lost wages in the amount of
$43,500.00. The Court, having considered all the evidence, is aware that
claimants suffered from the annoyance and inconvenience of having to contend with
such inconveniences as an ice covered driveway during winter seasons and debris
in their yard for many years. The Court declines to make an award for the lost
wages. Thus, the Court makes an award to the claimants for this nuisance and
inconvenience in the amount of $2,500.00.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimants in the amount of $8,337.30.
Award of $8,337.30.
OPINION ISS liED JANUARY14, 2004
MARVIN CHAPEL CHURCH
VS.
DIVISION OF HIGHWAYS
90 REPORTS STATE
COURT OF CLAIMS [W.Va.
(CC-02-507)
Claimant appeared pro se.
Andrew F. Tarr and Xueyan Zhang,
Attorneys at Law, for respondent.
PER CURIAM:
Claimant brought this action to recover costs associated with water damage to
its property which it alleges is due to respondent’s negligent maintenance of
the drainage system along U.S Route 220 in Hampshire County. Respondent is at
all times herein responsible for the maintenance of U.S. Route 220 in Hampshire
County. The Court is of the opinion that respondent is liable in this claim for
the reasons stated more fully below. Further, the Court held the record open in
this claim to allow claimant ninety days from the date of the hearing to submit
a written estimate of what it would cost to repair all damages in the basement
of the church and to submit a written estimate of the costs associated with
whatever corrective measures are needed to prevent additional flooding.
Marvin Chapel Church is located adjacent to U.S. Route 220 in Purgitsville,
Hampshire County. It is a small, locally controlled congregational church. The
church owns less than one-fourth an acre of frontage real estate along U.S.
Route 220, which is titled in the name of the trustees.
U.S. Route 220 is a two-lane, asphalt road with a yellow center line and white
lines on the edges. It is a north and south route. Marvin Chapel Church is
located on the east side of the road. There is a stream which flows just south
of the church and a parking lot on the north side of the church. Glen I-Iamric,
the pastor of Marvin Chapel Church, and Sudie Rinker, the Chairman of the
Trustees were present and testified on behalf of Marvin Chapel Church. Pastor
Hamric testified that he has been the pastor at the church for eight years.
According to Pastor Hamric, the church has been located on Route 220 at least
sixty to seventy years. He stated that the church building is very close to the
road and that respondent probably owns the property almost to the front door of
the church. He estimated that the paved portion of the road is approximately
fifteen to twenty-five feet from the front ofthe church. Pastor Hamric
testified that respondent performed some significant construction work on the
road in front of the church when it straightened out some curves in the road
near the church. Respondent also installed drainage ditches near the church and
performed extensive work on the front and both sides of the church. The only
location that was not worked on was behind the church. According to Pastor
Hamric, after respondent performed this work, the church was in such a position
in relation to the road that any water draining from U.S. Route 220 would flow
onto the parking lot and into the basement of the church. He stated that the
road was raised higher as a result of this work. He also estimated that the
highway was moved between eight to ten feet away from the front of the church.
In July 2002, the church began to have flooding problems in the basement.
Respondent was notified about the flooding shortly after it occurred. In
response, respondent sent a private contractor to install a new drainage system
in hopes of resolving the flooding problem. The contractor began working on the
project sometime in late September and continued until April 2003. Pastor Hamnc
testified that the contractor dug down to the footers in front of the church
and installed a drainage line which ran from the front of the church and
crossed over to the stream where the excess water was emptied. However, he
stated that this new drainage line did not work properly and that claimant was
still getting flooded every time there was a “heavy rain.” He stated that he
has seen water flowing from the surface of the elevated road in front of the
church across the berm onto the church parking lot and
W.Va.] REPORTS
STATE COURT OF CLAIMS 91
into the basement. Further, he testified that there is nothing to stop the
water from flowing towards the church and into the basement. He stated that the
ground is contoured at this location to allow the water to drain to the stream
which is just fifteen feet south of the church, but as it flows this direction,
it also flows into the church basement. Pastor Hamric testified that there was
no flooding at the church until after respondent’s work on U.S. Route 220.
Sudie Rinker also testified on behalf of claimant. Ms. Rinker is the Chairman
of the Trustees at Marvin Chapel Church. She has held this position for three
to four years and also during the time of the flooding. She testified that she
has attended Marvin Chapel Church since 1974, and that she has never seen the
church flood until after respondent’s construction work in July 2002. According
to Ms. Rinker, the first flood occurred on a Saturday in the Summer of 2002.
She and two other church members noticed the basement was flooded when they
arrived at church the following day. She testified that there was approximately
one and one-half inches of water in the kitchen and an inch of water in the
classroom. However, she also testified that the water was probably higher the
previous day because there was a ring around the wall approximately eight to
ten inches high. It is Ms. Rinker’s opinion that the flooding has been caused
by respondent’s failure properly to install the drain pipe and because of dirt,
leaves, and debris clogging the drain and preventing the water from flowing
through it. Further, Ms. Rinker stated that she has seen the church flooded
between six to eight times from July 2002, to the present. In addition, she
testified that she contacted respondent within a reasonable amount of time once
she discovered that the new drainage ditch was not working, but no one
responded to her complaint.
The flooding in the church caused significant damage to the basement including
the wall paneling, carpet and sheet rock. Claimant submitted a repair estimate
to the Court at the hearing of this matter for the damage to the carpet in the
amount of $1,160.60. Further, claimant submitted a written estimate to the
Court and counsel for respondent within ninety days of this hearing for the
cost associated with adequately preventing further seepage of water into the
church basement. The contractor hired by claimant proposed to place
approximately fifty tons of asphalt with a “swell” with negative drainage from
the church with one-hundred feet of four inch drain pipe. In addition, the
contractor proposes to do all excavation, grading and cleanup, for a total cost
of$l 1,535.00. Thus, claimant seeks a total award of$12,695.60
Claimant contends that respondent failed to provide a ‘proper drainage system
for excess water alongthe portion of U.S. Route 220, and furtherthat respondent
changed the nature of the road and adjacent property causing a large volume of
water to flow onto claimant.
Respondent chose not to present any witnesses or evidence in this claim.
To hold respondent liable for damages caused by an inadequate drainage system,
claimant must prove that respondent had actual or constructive notice of the
existence of the inadequate drainage system and a reasonable amount oftime to
take corrective action. Orsburn v. Division of Highways, 18 Ct. Cl. 123
(1991); Ashworth v. Division of Highways, 19 Ct. Cl. 189 (1993).
In the present claim, the Court is of the opinion that claimant established
that respondent knew or should have known that its construction work on and
around U.S. Route 220 created an inadequate drainage system for water flowing
from U.S. Route 220, and as a result this was the proximate cause of the damage
to claimant’s property. The evidence also established that respondent had
performed extensive construction work around the church and in the process U.S.
Route 220 was raised significantly higher than
92 REPORTS STATE
COURT OF CLAIMS [W.Va.
the church adjacent to it. This increased the amount ofwater drainage from the
road onto the claimant’s property. In addition, the manner in which respondent
left the berm and parking lot also contributed to an increase in the flow of
water drainage from the road and into the church. The land was contoured such
that water flowing to the streamjust south of the church also flowed into the
church. Further, claimant notified respondent that it was having flooding
problems in a timely fashion. However, while respondent attempted to remedy the
problem, it failed to take timely and adequate corrective measures to resolve
the water drainage problem. Thus, the Court has determined that claimant herein
may make a recovery for the damages proximately caused to its property in the
amount of $1,160.60 for the carpet, and a recovery of $11,535.00 for
the cost of hiring a contractor to repair the underlying drainage problem
causing the flooding. Thus, claimant may make a total recovery of $12,695.60.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimant in
this claim in the amount of$l2,695.60.
Award of$l2,695.60.
OPiNION iSSUED JANUARY14, 2004
BOBBY WAYNE HUDNALL and MAUREEN HUDNALL
VS.
DIVISION OF HIGHWAYS
(CC-02-350)
Tom White, Attorney at Law, for claimant&
Andrew F. Tarr, Attorney at Law, for respondent.
BAKER, JUDGE:
Claimants brought this action to recover costs incurred from water damage to
their real estate and personal property allegedly due to the negligent
maintenance of the drainage system along County Route 26 in Oakvale, Mercer
County. At the hearing of this claim, the Court amended the style of the claim
to include both property owners, Bobby Wayne Hudnall and Maureen Hudnall, as
the claimants. Respondent is at all times herein responsible for the
maintenance of County Route 26 in Mercer County. The Court is of the opinion
that the claimants may make a recovery in this claim for the reasons stated
more fully below.
Claimants’ property is located on Hatcher Road, designated as County Route 26,
in Oakvale, Mercer County. County Route 26 is a one-lane, paved road for
approximately the first two or three miles, but it is a gravel road near
claimants’ home and remains gravel for approximately the next two miles. Claimants’
property consists of approximately sixty acres which fronts along County Route
26. They purchased this property in 1998 with three houses and four buildings
located on it. They have resided in the wood and cinder-block house, referred
to as the “main house,” sincel998. It is approximately twelve years old. There
is an old log house located just north of the main house and a mobile home
located at the far north end of the property. All three dwellings front County
Route 26. The main home in which claimants reside is located approximately
twenty-five to thirty feet from County Route 26. There is a graded
W.Va.] REPORTS
STATE COURT OF CLAIMS 93
embankment between the road and their home of about fifteen feet. There are
also the “pooi house”, a log smoke house, a chicken house, and a turkey house
located on claimants’ property. All of these structures are located below
County Route 26. Hatcher Creek is below and at a distance of approximately
eighty feet from claimants’ home and this creek flows the entire length
ofclaimants’ property. The creek flows behind all three of claimants’
dwellings. Prior to the flooding, claimants had a small bridge that crossed
Hatcher’s Creek behind the log cabin that led to the well house on the opposite
side of the creek. Claimants’ driveway intersects with County Route 26 in front
of the main house and it turns into a one-lane road which extends north of the
main house to the log house and ends at their mobile home. There is a ditch
line on the opposite side of County Route 26 away from claimants’ property.
There are also five different culverts on the opposite side of the road near
the ditch line both north and south of claimants’ property However, two
culverts are at issue in this claim. Culvert number one is located almost directly
opposite claimants’ driveway and is approximately forty or fifty feet from
claimants’ main home. Culvert number two is a few yards directly south of
culvert number one.
Mr. Hudnall testified that he maintains his own drainage structure on his property.
He testified that there is a ditch line that begins at the driveway and extends
adjacent to the main home and empties into an eighteen inch culvert beneath the
portion of the driveway that extends from the main home towards their mobile
home. This culvert extends from beneath the driveway and empties into Hatcher
Creek. Mr. Hudnall stated that this drainage system is intended to capture
excess water flowing from the road down hill onto his property. He stated that
claimants’ real and personal property have been damaged by three different
floods which he alleges were caused by respondent’s failure properly to
maintain its drainage system along County Route 26. According to Mr. Hudnall,
the first flood occurred on May 15,2001. The second flood occurred on July
8,2001, and the third flood occurred on or about May 3, 2002. Each of the three
floods caused substantial damage to claimants’ three homes. Claimants submitted
numerous photographs into evidence at the hearing which depicted a substantial
amount of flood water and debris flowing from County Route 26 down their
driveway and front yard. The photographs also demonstrate the amount of water
which flowed into the basement of their log home causing significant damage to
the structure, plumbing system, various personal property items, and the hot
water tank. In addition, Mr. Hudnall stated that during the flood on July 8,
2001, the water pooled near culvert number one on the opposite side of the road
from claimants’ driveway. He estimated that the water was three to four inches
deep. Mr. Hudnall testified that claimants sustained damage to all seven
structures on their property. Claimants’ bridge which crossed Hatcher Creek was
destroyed and their well system and septic system were damaged. As a result of the
floods, claimants’ property sustained damages.
Claimants presented an estimate to the Court from a construction company for
the damages sustained which included repairs to the floors, walls, kitchen, and
foundation of the log home. The same estimate covered repairs to a deck and the
swimming pool, and the replacement of the bridge for a total amount of
$18,000.00. Claimants also submitted an estimate from the same construction
company for the removal of debris, waste and destroyed furnishings as necessary,
as well as the pouring of concrete in the amount of$ 1,950.00. According to Mr.
Hudnall, FEMA compensated claimants for the damages to their well and septic
systems after the first flood in the amount of $7,000.00. This is the only
compensation which claimants’ have received from FEMA. However, he testified
that the septic system was destroyed in another flood and it needs to be
94 REPORTS STATE
COURT OF CLAIMS [W.Va.
repaired again, and FEMA has not reimbursed claimants for this work. Claimants
submitted a repair estimate for the septic system in the amount of $896.50, and
a repair estimate in the amount of $2,026.00 for repairs to the drain pipes and
the driveway. Thus, claimants submitted a total estimate of damages sustained
in the amount of $22,872.50. However, claimants agreed at the beginning of the
hearing to have their claim heard by one Judge which limits any recovery which
the Court may award to the maximum of $19,999.99.
Claimants assert that respondent negligently maintained the drainage system
along County Route 26, and that this negligence was the proximate cause of the
flood damages which claimants incurred.
Respondent did not present any witnesses or evidence in this claim. However,
respondent attempted to establish its position through the cross-examination of
claimants’ witnesses that its actions or failure to act were not the proximate
cause of claimants’ damages, but rather, claimants’ damages were caused by
three unusually heavy rainstorms that occurred throughout most of the State.
Thus, according to respondent, there was nothing it could have done to prevent
what were alleged to be “Acts of God.”
Mr. Hudnall testified that he had contacted respondent numerous times,
beginning in October 1998, about the poor condition of the culverts and the
drainage system along County Route 26 and the flooding that was occurring to
his property. Claimants introduced telephone records into evidence at the
hearing which corroborated testimony that there were telephone calls made from
claimants’ home to respondent’s office in Charleston. Mr. Hudnall also
testified that one of respondent’s engineers came to claimants’ property and
observed the damaged culverts. According to Mr. Hudnall, respondent informed
him that the culverts would be repaired, but this was not done. Mr. Hudnall
testified that the two culverts at issue were not properly maintained.
Photographs in evidence depict that culvert number one was “smashed”. Mr.
Hudnall testified that the culvert was smashed by one of respondent’s grader operators
while grading the road. Further, Mr. Hudnall stated that he opened the culvert
up just enough to allow some water to flow through, but that respondent’s
grader operator drove through and flattened the culvert again preventing the
water from flowing through it. In addition, numerous witnesses who live along
or otherwise travel County Route 26, testified that the drainage system was in
poor condition. John Atkins, an employee of “Long Term Recovery,” a group which
assists flood victims, went to claimants’ residence during the May 2002 flood.
He testified that there was a large amount of water and debns near culvert
number one located across the road from claimants’ driveway. He also testified
that the culvert was mashed down and that claimants and other individuals were
trying to open the culvert to allow the water to flow out. It was Mr. Atkins’
opinion that had the culverts been operating properly there would have been a
lot of water eliminated from the road and claimants’ property. James Bryant Jr.,
a school bus driver for Mercer County, testified that he traveled County Route
26 as part of his assigned route for at least six years, including the time
period at issue. He stated that the ditch line on the right side of the road
opposite claimants’ property was often saturated. He stated that there were
numerous areas along the ditch line of the road near claimants’ property where
water would not drain properly, but instead pooled up. Mr. Bryant testified
that he was afraid to maneuver the school bus over to the edge of the road due
to the ditch line being soggy. He estimated that the ditch line was in a poor
condition beginning just south of claimants’ property and continuing
approximately two miles north. In addition, there was testimony from local residents
who live along County Route 26 that the ditch line and culverts have
W.Va.] REPORTS
STATE COURT OF CLAIMS 95
been in poor condition for a substantial amount of time. James Ruble, a local
resident who lives approximately 1500 feet south of claimants’ property,
testified that the ditch line along County Route 26 just below his property
cannot be seen because it is filled up with mud and debris.
Respondent attempted to establishthat the flooding which occurred at claimants’
property on all three occasions was the result of unusually heavy rainfalls
that occurred not only at the location of claimants’ property, but throughout
the State. Respondent’s position is that this constituted an “Act of God” and
that respondent was therefore not responsible. One of the witnesses, James
Bryant, testified that he was not aware that there was a major flooding event
throughout the State on July 8, 2001. He only recalls that there was flooding
in general in May 2001. John Atkins also testified that he was aware that there
was major flooding in May 2001 in other areas of the State and he was also
aware of major flooding on July 8, 2001, in other areas including the Matoaka
area in Mercer County. Mr. Atkins also testified that there was a minor flood
in May 2002. In addition to observing flooding at claimants’ property, he also
observed flooding in Princeton and the surrounding area. Mr. Ruble also stated
that he was aware that there was major flooding in May 2001, and on July 8,
2001. He also recalls that there was some flooding in the Princeton area as
well as the claimants’ property in May 2002. Brian Jones, who lives
approximately one and one-halfmiles south of the claimants, also testified that
he is generally familiar with the flooding in May 2001, and he recalls the
flooding in Mercer County in general on July 8, 2002. However, he was unsure as
to whether or not there was flooding in the Princeton area in May 2002.
Further, Mr. Hudnall testified that he is aware that all three floods at issue
occurred at the same time many other parts of the State were being flooded.
However, he was of the opinion that this was not the situation at the location
of his property, rather, he categorized the rain as being heavy rain.
To hold respondent liable for damages caused by inadequate drainage, claimant
must prove by a preponderance of the evidence that respondent had actual or
constructive notice of the existence of the inadequate drainage system and a
reasonable amount of time to take corrective action. Ashworth v. Division
ofHighways, 19 Ct. Cl. 189 (1993); Orsburn v. Division ofHighways, 18
Ct. Cl. 125 (1991). Further, in order for respondent successfully to assert the
“Act of God” defense, it must establish by sufficient evidence that the
unusually severe flooding that was allegedly occurring in other areas of the
State was in fact occurring in like manner and circumstances at the location of
the incident at issue.
In the present claim, the Court is of the opinion that the proximate cause of
the damage to claimants’ property was respondent’s failure to maintain an
adequate drainage system for surface water flowing from County Route 26. The
evidence established that respondent knew of the drainage problem at this
location since at least October 1998. However, respondent failed to provide an
adequate drainage system despite numerous requests for help from the claimants
and other neighbors who live along County Route 26. Claimants established that
an excessive amount of water flowed from County Route
26 onto their property causing damage to the land, three homes, and personal
property. Further, the Court is of the opinion that respondent failed to
establish that the flooding which occurred at claimants’ property was the
result of an “Act of God.” The fact that other areas of the State or the
surrounding counties were having unusually heavy rainfalls and flooding does
not establish that the same or similar amount of rainfall and flooding also
occurred at claimants’ property. Respondent failed to establish that there were
any unusually heavy rainfalls at the location of claimants’ property. There was
no evidence
96 REPORTS STATE
COURT OF CLAIMS [W.Va.
as to how much rainfall was recorded in and around claimants’ property during
any of the three floods. Thus, respondent cannot rely on the “Act of God” as a
defense in this claim. The Court has determined that the claimants herein may
make a recovery for the damages proximately caused to their property in the
amount of $19,999.99.
In accordance with the finding of facts and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimants
in the amount of $19,999.99.
Award of$ 19,999.99.
OPINION ISS UED JANUARY14, 2004
CHRISTOPHER PITTS
VS.
DIVISION OF HIGHWAYS
(CC-00-41 3)
Mark F. Underwood, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CUR1AM:
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 March 28, 2000, claimant was injured when a piece of concrete fell from
the interstate bridge over Norwood Road and struck him on the head as he was
walking underneath the bridge.
2. Respondent was responsible for the maintenance of the highway bridge on
Interstate 64 that passes over Norwood Road, which is located in or near
Huntington, Cabell County, and respondent failed properly to maintain the
highway bridge on Interstate 64 on the date of this incident.
3. Respondent acknowledged that it had at least constructive notice that pieces
of concrete had fallen from the interstate bridge over Norwood Road prior to
the claimant’s incident.
4. As a result of this incident, claimant suffered injuries to his head. His
out-of- pocket expenses were approximately $1,664.90. Claimant had no medical
or other insurance coverage for his medical expenses as a result of his
injuries.
5. Respondent and claimant have agreed to settle this claim for the total sum
of
$9,000.00 for claimant’s out-of-pocket medical expenses and for claimant’s past
and future pain and suffering resulting from his injuries.
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 the highway bridge on interstate 64 that passes
over Norwood Road in Huntington, Cabell County, on the date of this incident;
that the negligence of respondent was the proximate cause of the personal
injuries sustained to 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
W.Va.] REPORTS
STATE COURT OF CLAIMS 97
amount of $9,000.00.
Award of $9,000.00.
OF! WION ISSUED JANUARY14, 2004
DOUGLAS RUNYON
VS.
DIVISION OF HIGHWAYS
(CC-02-450)
Claimant appeared pro Se.
Andrew F. Tan-, Attorney at Law, for
respondent.
PER CUR1AM:
Claimant brought this action for damage to his vehicle which occurred when he
was operating his vehicle on County Route 10 in Wyoming County, and he was
forced to drive onto the berm of the road to avoid an oncoming truck. When he
drove onto the berm, his vehicle struck a large hole. Respondent was
responsible at all times for the maintenance of County Route 10. The Court is
of the opinion to make an award in this claim for the reasons set forth below.
The incident giving rise to this claim occurred on September 18, 2002, at
approximately 11:00a.m. Claimant was driving his 2000 Mitsubishi Eclipse
southbound on County Route 10, also referred to as Jesse Mountain, near Oceana
in Wyoming County. County Route 10 at this location is a two-lane, asphalt road
with a double yellow center line and white lines on both edges. The berm along
the southbound lane consists of gravel and it extends six feet ten inches to a
guardrail. The guardrail is located in a position to prevent vehicles from traveling
over the edge of the hill. The weather on the morning at issue was uneventful
and the road was dry and in otherwise good condition. Claimant was traveling
between forty and forty-five miles per hour in a fifty-five mile per hour zone.
As he proceeded uphill on Jesse Mountain, he observed a large truck in the
northbound lane quickly approaching his vehicle. According to claimant, the
truck was close to the yellow center line. In order to avoid a potential
head-on collision, claimant maneuvered his vehicle to the edge of the road. He
stated that once he maneuvered near the edge of the road it felt as though the
tires were pulled towards the berm and his vehicle went off the road.
Claimant’s vehicle struck a hole or a large drop-off area located just to the
right of the white edge line. The impact was significant. It destroyed his
front wheel and tire. Claimant testified that the drop-off between the white
edge line of the road and the berm was approximately one foot. Claimant stated
that the drop-off was so deep that the understructure of his vehicle was
resting on the gravel berm and the entire front end of the vehicle was resting
on the road. Claimant testified that he lives approximately two miles from the
location of this incident and he travels this portion of road approximately
once every two or three days. According to claimant, the berm along this
portion of County Route 10 has been in a poor condition for over a year.
Further, he stated that he has reported the problem to respondent on at least
two occasions prior to this incident. He admits that when he called and
reported the problem he stated that the berm along the entire portion of County
Route 10 on Jesse Mountain was in poor condition. Claimant submitted two
estimates for the damage to his vehicle. The first
98
REPORTS STATE COURT OF CLAIMS
[W.Va.
estimate was for
$446.18, and the second estimate was for $342.88, for a total of $789.06.
However, claimant had comprehensive liability insurance coverage at the time of
this incident which covered this loss with a deductible feature of $500.00. The
claimant is limited to a recovery of his insurance deductible. See:
Sommerville / State Farm Fire and C’asuahy v. Division of Highways, 18 Ct.
Cl. 110 (1991).
Claimant contends that respondent was negligent in its maintenance of the berm
at the location of this incident, and that this negligence created a hazardous
condition that was the proximate cause of the damages to claimant’s vehicle.
It is respondent’s position that it did not have notice of the condition at
issue. Respondent also asserts that claimant did not reasonably need to use the
berm at this location.
Larry Michael Vasarhelyi, Investigator Two for respondent, is responsible for
investigating claims made against the respondent. Mr. Vasarhelyi investigated
this claim and visited the location at issue to take measurements. He
determined the total width of the road to be twenty-one feet, six inches. The
southbound lane in which claimant was traveling was eleven feet, three inches
from the edge of the white line to the center line. The northbound lane was ten
feet, three inches wide from the center line to the white line at the edge of
the pavement. The berm along the southbound lane was six feet, ten inches from
the edge of the pavement to the guardrail.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety ofmotorists on its roads and highways. Adkins
v. Sims, 46 S.E.2d 81 (W.Va. 1947). To hold respondent liable, claimant
must establish by a preponderance of the evidence that respondent had actual or
constructive notice of the defect in question and a reasonable amount of time
to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). The respondent
owes a duty to maintain the berm of a highway in a reasonably safe condition
for use when the occasion requires. Compton v. Div. of Highways, 21 Ct.
Cl. 18 (1995). Liability may ensue when a motorist is forced onto the berm in
an emergency or otherwise necessarily uses the berm of a highway and it fails. Sweda
v. Dept. of Highways, 13 Ct. Cl. 249 (1980).
In the present claim, the evidence established that County Route 10 at the location of this incident presented a hazardous
condition to the traveling public. Testimony established that respondent had
prior notice that the berm along the entire portion of County Route 10 on Jesse
Mountain was in poor condition. The evidence also established that there was a
large drop-off of at least one foot between the paved portion ofthe road and
the gravel berm. Given the size of this drop-off, and claimant’s testimony that
he had notified respondent of the condition approximately one year prior to
this incident, the Court is of the opinion that respondent had constructive, if
not actual, notice of the poor condition of this berm. Further, it was
reasonable for claimant to steer to the right of his lane to avoid a collision,
even if the oncoming truck did not actually cross the center line. Under these
circumstances, claimant should have been able to rely upon the berm to have
been in a safe condition.
In accordance with the finding of facts and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to claimant in the
amount of $500.00.
Award of $500.00.
W.Va.J REPORTS
STATE COURT OF CLAIMS
OPINION ISSUED JANUARY14, 2004
WILLIAM J. TONCRAY
VS.
DIVISION OF CORRECTIONS
(CC-03-044)
Claimant appeared pro Se.
Charles P. Houdyschell, Jr., Assistant
Attorney General, for respondent.
PER CURTAM:
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:
I. Claimant, an inmate at Northern Regional Jail. brought this claim to recover
the value of his Aiwa Walkman that was damaged during a shake down while he was
being held at Denmar Correctional Center, a facility of the respondent.
2. Respondent admits the validity of the claim, but states that the amount of
$40.00, rather than the amount claimed of $55.00, is fair and
reasonable.
3. Claimant agrees to accept $40.00 as fill and complete compensation for the
Aiwa Walkman.
4. Respondent agrees that the amount of damages as agreed to by claimant is
fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent is
responsible for the damage to claimant’s Aiwa Walkman and that the amount of
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 $40.00.
Award of $40.00.
OPINION ISSUED JANUARY 14, 2004
JAN-CARE AMBULANCE
VS.
DIVISTON OF CORRECTIONS
(CC-03-529)
Claimant appearedpro Se.
Charles P. HoudyschelL Jr. 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 $709.50
for transportation services rendered
to an inmate in the custody ofrespondent at Mount Olive Correctional Complex, a
facility of the respondent. Respondent, in its Answer, admits the validity of
the claim,
100 REPORTS STATE
COURT OF CLAIMS [W.Va.
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 JANUARY14, 2004
WENDELL SWEETSER
VS.
PUBLIC SERVICE COMMISSION
(CC-03-543)
Claimant appearedpro se.
Ronald L. Reece, 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 $4,950.00 for providing expert testimony for a case on behalf of
the respondent State agency. 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.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $4,950.00.
Award of $4,950.00.
OPINION ISSUED JANUARY 20, 2004
STACY J. BERRY
VS.
DIVISION OF HIGHWAYS
(CC-03-299)
Claimant appeared pro Se.
Xueyan Zhang, Attorney At Law, for
respondent.
PER CURIAM:
Claimant brought this action for damages to her 2002 Volkswagen Passat which
occurred on two separate occasions in February and March 2003 when her vehicle
struck
W.Va.] REPORTS
STATE COURT OF CLAIMS 101
the same hole in U.S. Route 19 in Clarksburg, Harrison County. Respondent is
responsible for the maintenance of U.S. Route 19, locally referred to as
Milford Street, at the location of claimant’s two incidents. The Court is of
the opinion to make an award to claimant for each incident for the reasons set
forth herein below.
Claimant’s first incident occurred on February 24,2003, at about 10:00 to 10:30
p.m. when she was returning to her home south of Clarksburg from Morgantown
where she had been attending classes. She was traveling south on U.S. Route 19,
a highway she traverses infrequently, when her vehicle struck a large hole
filled with water which was in the travel portion of her lane. U.S. Route 19 is
a two-lane, asphalt road with a yellow center line and curbs on each side. She was
traveling at twenty to twenty-five miles per hour, as this roadway is in a
residential area. She proceeded to her home although she was aware that her
vehicle had something wrong. She returned to this area the next day to view the
hole in the road which she estimated to be eighteen inches long, twenty-four
inches wide and at least eight to ten inches deep. It was located six to eight
inches into her lane of travel from the curb. Also the next day, she took her
vehicle to a tire shop where she was advised that there was damage to the
interior of two rims. Claimant ordered two new rims at a cost of $230.00. In
the meantime, she had the tires mounted on aluminum rims that were the original
rims for her vehicle.
The second incident involving this same hole in the pavement on U.S. Route 19
occurred on March 24, 2003, when claimant was again returning to her home from
Morgantown. Her vehicle struck the exact same defect in the road when she was
traveling southbound on U.S. Route 19 at about twenty-five miles per hour. She
had called representatives of the city of Clarksburg after the first incident
and the area had been repaired. On this second occasion, the hole had
reappeared and claimant’s vehicle went into it causing damage to one of the
aluminum rims. Replacing that rim cost $400.52 because it was a more expensive
rim.
Thus, claimant replaced a total of three rims as a result of both incidents
with the same hole on U.S. Route 19 for a total amount of damages of $630.52.
Claimant has a $250.00 deductible with her insurance carrierper incident so she
is limited to a recovery of $500.00.
John Michael Barberio, Highway Administrator for respondent in Harrison County,
testified that he was aware of the hole on U.S. Route 19 that caused the
damages to claimant’s vehicle. He explained to the Court that respondent filled
this hole, as well as others on U.S. Route 19, which is a high priority
highway. The highway extends approximately one-half mile to three fourths mile
through the city of Clarksburg and this section is maintained by respondent. He
testified that respondent’s crews filled holes in that specific area on
numerous occasions including February 24, 2003, the date of claimant’s first
incident. It was quite possible, in his opinion, that the hole could be patched
with cold mix in the morning and that enough material could come out of the
hole during the day such that the hole would be a hole again by late evening.
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).
In the instant claim, respondent has established that it had continuously
treated the hole in Route 19 which caused the damages to claimant’s vehicle.
The DOH-12 S
submitted into evidence establish that
respondent treated this area frequently in an
102 REPORTS STATE
COURT OF CLAIMS [W.Va.
attempt to protect the traveling public but the patching material (cold patch)
available to respondent during the winter months comes out of defective areas
very quickly in snowy or rainy weather. Respondent was not able to effect a
permanent remedy until warmer weather. However, respondent never took any steps
to place a warning sign for the traveling public even though this particular
hole was on a high priority road in a residential area. The Court is ofthe
opinion that respondent had actual knowledge ofthe defect on U.S. Route 19 on
the dates of both of claimant’s incidents and it failed to protect the traveling
public; therefore, the Court finds that respondent was negligent and that
claimant may make a recovery for the damages to her vehicle which were
proximately caused by respondent’s negligence.
In accordance with the finding of facts and conclusions of law as stated herein
above, the Court is the opinion to and does make an award to claimant in the
amount of $500.00 for the damages to her vehicle.
Award of $500.00.
OPINION ISSUED JANUARY20, 2004
BRANDON CRITCHF1ELD
VS.
DiVISiON OF HIGHWAYS
(CC-02-397)
Claimant appearedpro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURTAM:
Claimant brought this action for damage to his 1997 Kawasaki Ninja ZX6R
motorcycle which occurred when he was driving his motorcycle from a parking lot
onto County Route 19/71 in Shinnston, Harrison County. The motorcycle went into
a drop inlet at the edge of the road causing claimant to lose control of the
motorcycle and resulting in an accident. Respondent was responsible at all
times herein for the maintenance of County Route 19/71. The Court is of the
opinion to make an award in this claim for the reasons set forth below.
The incident giving rise to this claim occurred on July 21, 2002, at around
midnight. The weather was uneventful and it was dark outside. There had been no
recent precipitation and the road surface was dry. Claimant was driving his 1997
Kawasaki Ninja ZX6R motorcycle, which he had purchased from a friend
approximately one year prior to this incident. He had traveled on County Route
19/7 1 also known as East Avenue to go to a friend’s house on East Avenue when
he decided to stop at Fox’s Pizza to speak with a girl who worked there.
Claimant spoke to his friend on the parking lot as Fox’s Pizza was closing for
the night. After they finished talking, she left the parking lot in her vehicle
as claimant was placing his helmet on. Claimant proceeded to drive from the
parking lot and turned left onto County Route 19/71 when suddenly the front
tire of the motorcycle struck the corner of a drop inlet. Claimant testified
that the frame of the motorcycle struck the asphalt due to the inlet being so deep.
The impact threw him violently backwards while he attempted to hold onto the
motorcycle. At this time, he
W.Va.] REPORTS
STATE COURT OF CLAIMS 103
believes that he accidentally hit the throttle causing the motorcycle to careen
quickly out of control throwing claimant onto the asphalt. As he was getting
up, the motorcycle was still spinning across the road out of control. According
to claimant, it eventually came to rest on the opposite side of the road after
skidding approximately fifteen feet. Claimant suffered minor scrapes and bums.
He was able to pick up the motorcycle and drive it to his friend’s house.
However, the body of the motorcycle was damaged.
The inlet drain at issue is locatedjust a few feet from Fox’s Pizza’s parking
lot but within the travel portion of County Route 19/71. County Route 19/71 is
a two-lane, umnarked asphalt road. At this location, County Route 19/71
proceeds downhill and levels out at the bottom of the bill and extends into a
sharp right turn. The drop inlet at issue is located near the edge of the road
in the right lane at the bottom of the hill just prior to the right turn.
Claimant testified that the drop inlet was approximately eleven inches deep and
twenty-four inches by twelve inches in width and length. He estimated that he
was only traveling between five to seven miles per hour when he drove from the
parking lot onto the road. He also stated that he did not see the drop inlet
prior to striking it. Further, claimant stated that he has not been to this
location for approximately eight months and when he drove to Fox’s Pizza that
night, he came in the opposite direction and thus was unaware ofthe drop inlet.
The following day claimant reported the incident to the Shinnston Police
Department.
Claimant submitted a repair estimate into evidence in the amount of $2,898 .03.
He had liability insurance only. According to claimant, the damage to the
motorcycle was mostly cosmetic in nature which included numerous scratches and
paint chips on the body of the motorcycle especially the left side which struck
the asphalt. In addition, the fairing was cracked, and claimant had to purchase
new tires, repair the clutch cable and brake cable at a cost of $30.00. These
repairs cost claimant $30.00. The measure of damages in this claim was
established through an estimate from Trick Motorsports submitted in evidence by
claimant. Claimant’s total loss in this claim is $2,928.03.
Claimant asserts that respondent knew or should have known that this
significant depth of the drop around the inlet drain on County Route 19/71 at
the location of this incident presented a hazardous condition to the traveling
public and yet failed to make adequate repairs.
It is respondent’s position that the drop inlet at issue in this claim does not
constitute a hazardous condition to the traveling public. Respondent maintained
the drop inlet as required and it was it good condition.
John Barberio, the Highway Administrator for respondent in Harrison County, is
responsible for the overall maintenance of all highways in Harrison County
including County Route 19/71. Mr. Barberio testified that County Route 19/71 is
a low priority road. While respondent is responsible for maintaining it from
curb to curb, the City of Shimiston plows it during the winter. He stated that
at the location of this incident the roadway is a two-lane road approximately
thirty feet wide. Mr. Barberio also stated that the drop inlet at issue has
been at that location ever since the road was built. According to Mr. Barberio,
he has not received any prior complaints about this condition of the drop inlet
and he was unaware that it posed any problems to travelers of the road. He
stated that it is a normal situation to have a drop inlet ten or eleven inches
below the paved surface of the road where it is near the side of the road or
curb, and not in the main driving portion of the road. In addition, he
testified that a vehicle proceeding down the hill at this location would not
use the portion of the road where this inlet drain is located, because the road
is thirty feet wide and provides sufficient space to maneuver around the turn
at this location. Mr. Barberio acknowledged that the drop inlet is in the
travel
104 REPORTS STATE
COURT OF CLAIMS [W.Va.
portion of the roadway and, in his opinion, it probably would not be
appropriate for drivers using County Route 19/71 to drive in the area where the
drop inlet is located.
Paul Lister, an investigator for the respondent’s Legal Division went to the
scene of this incident and took photographs and measurements of the scene. Mr.
Lister testified that this particular drop inlet has a twenty-four inch by
twenty-four inch metal cap on it. According to his measurements, the drop inlet
tapers from the edge one and a half feet in three directions away from the curb
side. It is tapered so as to drain water that flows down the hill. According to
Mr. Lister, he measured the depth as being six inches at the deepest portion of
the inlet. In addition, Mr. Lister testified that there is no ditch line on
either side of the road, thus water drainage could be a significant problem
without this drop inlet. Finally, Mr. Lister testified that given the
relationship between the drain and the entry to the parking lot, it was his
opinion that claimant had to have “cut” very close to the curb in order to
strike this drop inlet.
it is a well established principle that the State is neither an insurer nor a
guarantor of the safety ofmotorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 81 (W.Va. 1947). In order to hold respondent liable for road
defects of this type, claimant must establish by a preponderance of the
evidence that respondent had actual or constructive notice of the road defect
in question and a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986): Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of
the opinion that claimant established that respondent had actual or
constructive notice of a hazardous condition at the location of the drop inlet
at issue in this claim. The evidence established that there is a significant
difference in the elevation of the bottom of the drop inlet and the asphalt
pavement of the road surffice. Further, the evidence also established that the
drop inlet was within the travel portion of the lane, and thus, the traveling
public certainly should be able to use that portion of the road without
encountering a hazardous situation. The Court has determined that claimant, who
was unfamiliar with this area, was attempting to exit from a parking lot during
in the dark and he could not have anticipated that his motorcycle would drop
six inches as he exited that parking lot onto a State maintained road.
Therefore, Court holds that respondent was negligent in its maintenance of the
drop inlet at issue in this claim and, further, that respondent is liable for
the damage to claimant’s motorcycle.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $2,928.03.
Award of $2,928.03.
OPINION ISSUED JANUARY20, 2004
JERRY LOUISE KINTY
VS.
DIViSION OF HIGHWAYS
(CC-03-056)
Claimant appeared pro se.
Xueyan Zhang, Attorney At Law, for
respondent.
W.Va.] REPORTS
STATE COURT OF CLAIMS 105
PER CURIAM:
Claimant brought this action for personal injuries which she suffered in an
incident that occurred at the entry to the parking building at BB&T Bank
which is immediately adjacent to Fairmont Avenue in Fairmont, Marion County.
The incident occurred on December 2, 2002, when claimant was exiting her van as
her husband, Jerold Kinty, Sr., let her out to attend a parade. Respondent
maintains Fairmont Avenue as part of the State road system. The Court is of the
opinion to deny this claim for the reasons stated herein below.
Claimant alleges that she broke her foot on Fairmont Avenue on December 2,
2002, at about 5:30 to 5:45 p.m. when she stepped onto the juncture of the
entry to the parking building of BB&T Bank and the edge of the pavement of
Fairmont Avenue. It was dark at the time and she did not observe the area where
she stepped that caused her to foot to “snap”. It is her position that there
was a difference in elevation of the State maintained road and the apron to the
parking building. The difference in the elevation of the two surfaces caused
her to break her foot just as she exited the van. She did not realize the
serious nature of the incident until later that evening when her foot began to
swell. During the parade she was riding on a float and she noticed that her
foot was hurting so she was helped off the float and into a car until her
husband came to assist her. After returning home, she noticed her foot being
discolored so her husband took her to the hospital where it was determined that
her foot was broken. She incurred out-of- pocket medical expenses in the amount
of $30.00 and she lost wages since she was unable to return to her place of
employment until February 3, 2002.
Claimant and her husband returned to the scene ofthi s incident several days
later and he took photographs of the concrete apron to the parking building and
Fairmont Avenue. Mr Kinty testified that he watched as his wife exited the van
and he stated that “she stepped down kind of sideways backwards with the left
foot out first rather than the right foot, then brought her right foot out and
when she did she kind of flipped. I saw her grab the door.” He also testified
that it was very dark. At the time, he did not realize that she had injured her
foot.
Respondent asserts that the area where claimant broke her foot is not a part of
Fairmont Avenue that is the responsibility of respondent to maintain. George
Steorts, respondent’s Highway Administer in Marion County, testified that
respondent has the duty to repave Fairmont Avenue and this has been done as
needed. The street was not milled during each repaving operation so there may
have been a difference in the elevation at the juncture of the parking apron
and the street. If there was such a difference in the elevation at the edge of
the parking lot apron for BB&T Bank, it is the responsibility of the
property owner to maintain its entry at its juncture with the State maintained
road. Mr Steorts explained that respondent maintains certain State roads in the
municipalities throughout West Virginia; however, the maintenance on these
roads is from curb to curb only. That was the extent of the duty and
responsibility for respondent in the instant claim.
The Court, having reviewed the testimony and the photographs entered into
evidence in this claim, has determined that the area where claimant broke her
foot is the responsibility of the property owner rather than the responsibility
of the respondent. The difference in elevation between the parking building
entrance is created by its concrete apron at the juncture with Fairmont Avenue.
Although the Court is sympathetic for the injuries she received in this
incident, the Court concludes that claimant has not established any negligence
on the part of the respondent for her personal injuries and she may not make a
recovery in this claim.
106 REPORTS STATE
COURT OF CLAIMS [W.Va.
In view of the foregoing, the Court is
of the opinion to and does deny this
claim.
Claim disallowed.
OPINION ISSUED JANUARY20, 2004
LIANG WET
VS.
HIGHER EDUCATION POLICY COMMISSION
(CC—03-40 1)
Claimant appeared pro Se.
Kristi A. McWhirter, Assistant
Attorney General, for respondent.
PER CURIAM:
Claimant Liang Wei, a graduate student attending West Virginia University in
Morgantown, brought this action to recover damages to his personal property
which occurred on July 8, 2003, while he was residing in an apartment complex
provided for faculty and owned by the University, a facility of the respondent
The Court is of the opinion to deny this claim for the reasons put forth herein
below.
According to the testimony of the claimant, he first moved into his apartment
in 2001. He rented this apartment, located on Medical Center Drive in
Morgantown, West Virginia, from West Virginia University. in 2002 he
experienced flooding in the basement of his apartment at which time some of his
property was damaged. He continued living in the same apartment, and on July 8,
2003, the basement again flooded, causing damage to some of his personal
property for which he now makes this claim. The second flood was more
significant since four feet of water came into the basement and damaged his
property such that it was destroyed. He did not have renter’s insurance so he
had no coverage for his loss. He itemized the personal property lost and the
estimated values of these items as follows: several boxes of books - $300.00, a computer
- $200.00, three mattresses - $150.00, and four new suitcases - $360.00 for a total of $1,110.00.
Claimant’s position is that respondent should be held liable for his loss since
he rented the apartment from West Virginia University. The water came from the
storm sewer and a drain line and flowed into his apartment basement through the
back door of the basement.
Respondent asserts that claimant was advised that West Virginia University
would not be responsible for claimant’s personal property at the time that he
rented the apartment and that he should obtain his own insurance coverage. The
handbook provided to all tenants including the claimant contains a non-liability
clause and this handbook is made a part of the rental contract by reference.
Therefore, claimant was informed that he was responsible for his own personal
property in the apartment and not the respondent. Respondent further asserts
that the flood is the result of inadequate drainage on the street adjacent to
the apartment complex which is the responsibility of the Morgantown Utility
Board. In fact, personnel from the University informed this Board in writing on
two occasions to correct the problems caused by inadequate drainage provided by
the storm sewers in the area. Flooding had occurred in 2002 as the result of a
heavy rain as well as the flood in 2003, which caused claimant’s property
damage.
W.Va.] REPORTS
STATE COURT OF CLAIMS 107
The Court, having reviewed the testimony in this claim and the documentation in
evidence, has determined that claimant was advised at the time he entered into
the contract to rent his apartment from West Virginia University that he would
be responsible for his own personal property kept in the apartment. At that
time he had a obligation to acquire renter’s insurance if he wanted monetary
coverage for any loss of his personal property. He chose to accept any loss of
his personal property and to be responsible for the same when he did not
acquire this insurance. The non-liability clause in the rental agreement
protects the respondent from the loss alleged by the claimant herein.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
OPINION ISSUED JANUARY 20, 2004
ESTHER M. BOOTH and STEPHEN P. RICH
VS.
DIVISION OF HIGHWAYS
(CC-03-047)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for damage to their vehicle which occurred when
claimant Stephen Rich was operating their vehicle on County Route 34, also
referred to as Middle Grave Creek Road, in Marshall County, and the top portion
of a large tree next to the road fell onto claimants’ vehicle. Respondent was
responsible at all times herein for the maintenance of County Route 34 in
Marshall County. The Court is of the opinion to deny this claim for the reasons
set forth below.
The incident giving rise to this claim occurred on February 2, 2003, at 11:00
a.m. Claimant Esther M. Booth is the mother of Stephen Rich and the titled
owner of the vehicle at issue. Stephen Rich was operating his mother’s1994
Chevrolet 1500 Pickup Truck. He was traveling east on County Route 34 just
outside Moundsville. At this location, County Route 34 is a two-lane, asphalt
highway with a yellow centerline and white lines on both edges. Each lane is
approximately twelve and one-half feet wide. Mr. Rich described the weather as
clear and cold. There was no precipitation at the time of this incident, but
there had been a recent snowfall. The road was clear but there was snow
remaining on the side of the road. Mr. Rich was traveling east on County Route
34 near Mile Post 4.82, when suddenly the top of a large tree fell onto the
vehicle. The passenger side door and the passenger side of the windshield were
struck first, receiving a direct impact. As a result ofthe impact, the
windshield was cracked, the passenger side door and window were damaged, and
the cab was depressed approximately six inches. Mr. Rich stated that he did not
see the treetop falling until immediately before the impact with his vehicle.
He testified that the treetop was up too high to have been within his range of
vision while looking at the road ahead of him. He stated that in order to have
seen the top of the tree at the time it fell, he would have had to have been
looking straight up in the air while he was driving. The tree at issue was
located on the right side of the road in the direction Mr. Rich was traveling.
There is a small but steep embankment
108 REPORTS
STATE COURT OF CLAIMS [W.Va.
followed by a drop-off to a creek on the opposite side of the tree away from
the road. The tree was located on the edge of this bank. According to Mr. Rich,
the trunk of the tree was located approximately six to eight feet away from the
edge of the pavement. He stated that the tree was dead and that is why the top
of the tree fell and struck his vehicle. He is not sure who owns the property
where the tree was located or if it was on respondent’s right-of-way. Mr. Rich
testified that he travels this portion of road almost daily, and that he had
traveled the road in the opposite direction earlier in the day on the date of
this incident. Claimants submitted an estimate for the damage to the vehicle in
the amount of $7,094.22, which indicates that the repairs are more than the
value of the vehicle at the time of the incident. Thus, the vehicle was
determined to be a total loss. Mr. Rich testified that the market value of the
vehicle was approximately $6,000.00 at the time of this incident, but he did
not present additional evidence to support this amount. In addition, he
testified that he still has the vehicle, and has made repairs to it himself. He
stated that he has repaired the cab, replaced the windshield and the rear
window, and incurred expenses for paint and various miscellaneous supplies. He
was unable to produce the receipts for these expenses, but he estimates that he
spent a total of $500.00 in repairing the vehicle to make it safe and legal to
drive on the highway. Claimants seek an award of $6,000.00 which they assert is
the fair market value of the vehicle.
Claimants assert that respondent knew or should have known that the tree was
dead and that by allowing it to stand over or near the highway presented a
hazardous condition for the traveling public.
Respondent contends that this tree was not on its right-of-way and thus it was
not its responsibility. Regardless, respondent also contends that it did not
have notice that this tree was dead or presented a hazard to the traveling
public.
Christopher Minor, Highway Administrator Two for respondent in Marshall County
at the time of this incident, is responsible for the maintenance of all
highways in Marshall County. He is familiar with this portion of County Route
34 and he is aware of the incident at issue in this claim. He testified that
the incident occurred at or near Mile Post 4.82 on County Route 34. Mr. Minor
also testified that he spoke to an employee in the respondent’s Right-of-Way
Division and, based upon this conversation, he determined that the respondent’s
right-of-way at this location is fifteen feet from the center of the road on
each side of the road. According to Mr. Minor, each lane is twelve and one-half
feet wide, and respondent’s right-of-way extends another two and one-half feet
from the edge of the road to the shoulder. Mr. Minor also testified that
respondent does not own any property in this area. In addition, Mr. Minor
testified that respondent did not have notice of this tree or one similar to it
presenting a hazard to the traveling public. However, Mr. Minor testified that
he visited the location of this incident to determine whether or not the tree
was on the respondent’s right-of-way. He testified that he measured the
distance between the center of the road and the tree closest to the edge of the
road at the location of this incident and determined that the distance was
nineteen feet. Thus, according to Mr. Minor’s measurements, all of the trees at
this location would be at least four feet from respondent’s right-of way.
Further, Mr. Minor testified that respondent has not received any recent
complaints regarding the trees along this portion of road. He stated that the
last complaint was made in either late 1999 or early 2000 by Tyler Truck Caps,
a company that hauls truck caps through this location. The complaint was the
overhanging tree limbs were damaging its property. As a result ofthis
complaint, respondent’s employees used a “bucket truck” to clear all tree limbs
located sixteen feet high above the respondent’s right-of-way beginning at the
Moundsville city limits and
W.Va.] REPORTS
STATE COURT OF CLAIMS 109
proceeding approximately fourteen miles east. It has one mile of road yet to
finish.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of motorists on its roads and highways. Adkins
v. Sims, 46 S.E.2d 81 (W.Va. 1947). To hold respondent liable, claimant
must establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl.
103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). in cases
involving falling trees or tree limbs, the Court has held that respondent is
liable for dangerous trees or tree limbs on its property or right-of-ways. Wiles
v. Division of Highways, 22 Ct. Cl.170 (1999). The general rule is that if
a tree is dead and poses an apparent risk then the respondent may be held
liable. However, where a healthy tree or tree limb falls as a result of a storm
and causes damage, the Court has held that there is insufficient evidence upon
which to justify an award. Gerritsen v. Dept. of Highways, 16 Ct. Cl. 85
(1986). Further, the Court has held that in some cases the respondent may have
a duty to remove dangerous trees or tree limbs that are not on the respondent’s
property or right-of-ways, especially where the tree or tree limb is dead. Newkirk
v. Division of Highways, 20 Ct. Cl. 18 (1993). The Court has held
respondent liable where a tree limb hangs over respondent’s property and
presents a hazard. See Morris v. Division of I-Iighways, (CC-00-242,
unpublished opinion issued August 16, 2001).
in the present claim, the testimony is unclear as to whether or not the tree
from which the top fell was on respondent’s right-of-way. However, the issue is
whether this particular tree presented a hazard to the traveling public and
whether respondent had notice of this hazard. The Court is of the opinion that
respondent did not have notice of this hazardous condition. While the evidence
presented by the claimant established that the tree at issue was dead, respondent
did not have notice of this particular hazard. Respondent’s last complaint some
three years prior was regarding tree limbs overhanging on this road and the
area addressed was a mile from the location of claimant’s accident. Respondent,
at that time, remedied the problem by using a “bucket truck” to clear all the
tree limbs that were hanging over the road. However, in the instant claim,
claimants’ truck was struck not by an overhanging limb, but the top of the tree
actually fell. This is an entirely different situation, especially since the
tree causing the problem may not have been with the respondent’s right-of-way.
The evidence also indicated that this tree would not have been seen unless
specifically brought to the attention of respondent. According to the claimant,
it was not within the normal sight range for a driver to have seen it unless
the driver was looking straight up in the air. Thus, one of respondent’s
drivers would not have noticed this particular tree while driving through this
location on a routine inspection. The photographs in evidence depict a heavily
wooded area and the Court will not place a burden on respondent with respect to
trees along side the State’s highways unless the tree is near the road and is
an obvious hazard. While the Court is sympathetic to claimants’ loss, the Court
has determined that there is insufficient evidence of negligence upon which to
base an award.
In view of the foregoing, the Court is ofthe opinion to and does deny this
claim. Claim disallowed.
OFf WION ISSUED JANUARY20, 2004
110 REPORTS
STATE COURT OF CLAIMS [W.Va.
ORDER ISSUED JANUARY 28, 2004
EDWARD C. JONES II
VS.
DIVISION OF HIGHWAYS
(CC-02-378)
Claimant appeared pro
se.
Xueyan Zhang, Attorney At Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage to his vehicle which occurred when he
was operating his 1999 GMC Jimmy northbound on Interstate 79 near Fairmont in
Marion County, and it struck a hole located on a bridge. Respondent was
responsible at all times herein for the maintenance of Interstate 79 in Marion
County. The Court is of the opinion to deny this claim for the reasons set
forth more fully below.
The incident giving rise to this claim occurred on August 21, 2002, at
approximately 5:00 p.m. Claimant was traveling northbound on 1-79 proceeding to
Fairmont. Interstate 79 is a four-lane, divided highway with two southbound
lanes and two northbound lanes. There was some confusion at the hearing of this
matter as to which of two bridges on 1-79 that this incident occurred. The
evidence established that the first bridge is located on 1-79 northbound at the
Harrison/Marion County line, and the second bridge is located approximately
seven tenths of a mile north of the county line and closer to Fairmont. Both
bridges at issue have two northbound lanes of travel. li addition, each bridge
has an asphalt surface, a white center line, a yellow edge line for the left
lane, and a white edge line for the right lane. On the date at issue, the
weather was clear with no precipitation and the road was dry. Claimant was
proceeding northbound on 1-79 at approximately seventy miles per hour in “very
heavy traffic.” As he traveled across one of the two bridges, his vehicle
struck a hole in the road. Claimant stated that the impact felt as though the
front end “almost dropped out of the vehicle.” However, claimant is not sure
whether the hole was located on the first bridge at the Marion/Harrison County
line or at the second bridge near Fairmont. He stated that the hole was located
where the bridge and the pavement of the highway meet. He was not sure whether
the hole was at the entrance to the bridge or at the exit of the bridge. After
the incident, claimant was able to drive to Fairmont and return back home to
Clarksburg that evening without any noticeable problems with the vehicle;
however, he testified that two days later when he drove the vehicle from
Clarksburg to Morgantown, he noticed the vehicle was out of alignment. He
stated that the vehicle’s steering was not correct and that it “darted back and
forth” on the road. Claimant testified that he had to take his vehicle to at
least two different repair shops to have the front end realigned correctly. In
addition, an idler arm had to be replaced and the rotor assembly in the front
left wheel had to be repaired. While claimant stated that he was seeking an
award of $421.83 in his notice of claim, he submitted repair bills at the
hearing of this matter in the total amount of $581.80. However, claimant had
insurance coverage that would have covered this particular loss. At the
hearing, claimant testified that he believed the deductible feature was
$500.00. However, the Court requested that claimant provide a copy of his
abstract of automobile
W.Va.] REPORTS
STATE COURT OF CLAIMS 111
insurance coverage to the Court and respondent. The abstract of insurance
coverage indicates that his deductible feature at the time of this incident was
$250.00. Thus, claimant is limited to a recovery of $250.00 in the event of an
award. See; Sommerville/State Farm Fire and Casualty v. Division of
Highways, 18 Ct. Cl. 110 (1991).
Claimant contends that respondent knew or should have known that this hole was
present and that it presented a hazardous condition to the traveling public.
Respondent asserts that it did not have notice of any holes on either of the
two bridges at issue, and that it has reasonably and diligently maintained both
bridges.
Gary Dyer, the Maintenance Supervisor for respondent at its Lost Creek
Maintenance Garage at the time of this incident, is responsible for overseeing
all maintenance on 1-79 north from the ninety-nine mile post marker at Weston
to the one- hundred thirty two mile post marker at South Fairmont. Thus, he is
responsible for overseeing the maintenance of both bridges at issue in this
claim. Mr. Dyer testified that on June 28, 2002, he was on duty and traveling
northbound on 1-79 when he noticed a hole in the pavement on the “130 bridge”
northbound, which is the second bridge referred to by claimant in his
testimony. This bridge is approximately seven tenths of a mile north of the
county line. He stated that he applied a temporary patch on the hole at that
time, and then on July 2, 2002, he and his crew returned to apply a permanent
patch on the hole. Respondent introduced two DOT- 12 daily work reports which
corroborate Mr. Dyer’s testimony that this hole on the “130 bridge” was
patched. Further, Mr. Dyer stated that he did not have any information
regarding holes on either bridge at issue once these repairs were made.
Robert Suan, Crew Leader for respondent at the same Lost Creek Maintenance
Garage oversees the maintenance for 1-79 north including the “130 bridge”
northbound. Mr. Suan testified that he and Paul Lister, an investigator for
respondent’s Legal Division, met with claimant on May 8, 2003, at the “130
bridge” northbound. He stated that at that time claimant informed him that it
was on the “130 bridge” northbound that his vehicle had struck the hole. In
addition, Mr. Suan testified that claimant indicated to him and Paul Lister
that the incident at issue occurred at the same location of the patched hole
that Mr. Dyer and his crew had repaired on July 2, 2002. Mr. Lister also
testified that claimant was very clear in indicating to him that this incident
occurred on the “second bridge”, also referred to as the “130 bridge”, and that
it occurred at the location of the patch applied by Mr. Dyer and his crew.
Finally, Mr. Lister testified that respondent did not have any other complaints
regarding this patched hole either before or after claimant’s incident.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its roads and highways. Adkins v.
Sims, 46 S.E.2d 81 (W.Va. 1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that the respondent had actual or
constructive notice of the road defect at issue and a reasonable amount of time
to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that claimant failed to
establish any negligence on behalfofrespondent. The evidence adduced at the
hearing established that respondent had made repairs to the hole which claimant
allegedly struck just a little over a month prior to the alleged incident.
Further, respondent did not have any other complaints or notice regarding this
hole prior to the alleged incident. The Court is ofthe opinion that respondent
was acting diligently in maintaining the bridge at issue on 1-79 and there is
insufficient evidence of negligence on the part of respondent.
112 REPORTS STATE
COURT OF CLAIMS [W.Va.
Therefore, in view of the foregoing, the Court is of the opinion to and does
deny this claim.
Claim disallowed.
ORDER ISSUED JANUARY 28, 2004
ALAN BEDDOW and STEPHANIE BEDDOW
VS.
DIVISION OF HIGHWAYS
(CC-03-403)
Claimants appeared pro
Se.
Andrew F. Tarr and Xueyan Zhang,
Attorneys at Law, for respondent.
PER CURIAM:
Claimants are the owners of two rental units which make up a duplex apartment
building on Riddle Avenue in Morgantown, Monongalia County, which sustained
damages on July 8, 2003, when water flowed from the ditch line across Riddle
Avenue and flooded the two units. Claimants allege that respondent failed to
maintain the ditch line in a proper manner. Respondent was responsible for
maintaining Riddle Avenue at all times herein. The Court is of the opinion to
make an award to claimants for the reasons set forth below.
Claimant Alan Beddow testified that claimants purchased two rental units on
Riddle Avenue in 1995. There were no problems with flooding until the summer
of 2002 when a storm occurred and water came into the units causing damages. He
contacted respondent’s employees at the Sabraton Garage to come to Riddle
Avenue. A crew cleaned the ditch on the opposite side of Riddle Avenue that had
overflowed with water flowing across the road into claimants’ apartments. The
next spring in 2003 he noticed that the ditch line had not been cleaned so he
contacted respondent again requesting that the ditch line be cleaned again
before causing any flooding problems at his apartments. On July 8, 2003, a
storm occurred in Morgantown bringing about three inches of rain in two to
three hours. Claimants’ apartments flooded causing damage to the carpeting on
the first level of each unit. Claimants again contacted respondent and a crew
came to the scene that evening to clean out the ditch line. Claimants’ damages
included the destroyed carpet and claimants later employed a landscaper to
contour the yard creating a slope to prevent water from flooding their units
again. They took these steps in an attempt to mitigate any further water
problems. These efforts caused claimants to incur the cost of $1,473.38 for
carpet and $5,900.00 for the landscaper for a total loss of $7,373.38.
Claimant Stephanie Beddow testified that she and her husband had lived in one
of the apartments from 1995 until 2001 and that there had not been any problems
with water in the unit. She came to the apartments on the day of the flood
described on July 8, 2003, so she could assist with the clean up. She observed
the wet carpet that was ruined, and she was present when one of the tenants
took photographs of the scene during the flooding. She testified that the
photographs accurately depicted the situation on that day.
Claimants allege that the damages to their duplex apartment building were
caused by respondent’s failure to maintain the ditch line in a proper manner
and keep it
W.Va.] REPORTS
STATE COURT OF CLAIMS 113
free from silt and debris adjacent to Riddle Avenue across from their property,
and that this failure caused them to incur a loss.
Respondent contends that it maintained the ditch line on Riddle Avenue in an
adequate manner and that the damages to claimants’ apartment building were the
result of an unusual storm in the Morgantown area on the morning of July 8,
2003, which caused flooding problems throughout Monongalia County.
Kathy Westbrook, respondent’s Highway Administer for Monongalia County,
testified that she is familiar with Riddle Avenue which is designated as County
Route 6 1/4. She is responsible for the maintenance of this street which is a
two-lane, asphalt road approximately twenty feet wide, it is a second priority
road approximately .91 miles long and runs in a north-south direction with
claimants’ property on the east side of the street. This road was taken into
the State highway system on February 10, 1982, and has been maintained by
respondent since that date. She stated that on July 8, 2003, the National
Weather Service issued a flash flood warning at about 6:30 a.m. for the
Monongalia County area. She stated that in three hours there were four inches
of rainfall which caused flooding problems throughout that day. She talked to
claimant Alan Beddow about the flooding at his apartment units in the afternoon
on July 8, 2003, and responded by filling out a Citizen’s Request for
Assistance form. She testified that she visited Riddle Avenue that afternoon
and sent a crew to the area that evening to clean out the ditch line, which was
done. Ms. Westbrook described that drainage system on Riddle Avenue as follows:
there is an underground drainage system at the beginning of Riddle Avenue for
the first tenth of a mile and then there is an open drainage ditch adjacent to
Riddle Avenue across from claimants’ property; there are also two driveways and
one of them has a twelve-inch culvert beneath it which is not the regulation
size required by respondent of fifteen inches; and there is a construction
project to the north of claimants’ property on the west side of Riddle Avenue
and the entrances to this site had only one with a fifteen-inch culvert beneath
it while the other entrances had permit requests pending but did not have
proper drainage structures beneath them. She stated that the owners of
properties on Riddle Avenue to the south of claimants’ property have been
notified that their driveway culverts “are possibly not sufficient to carry the
water.” it is her opinion that the flooding on claimants’ property occurred due
to the severity of the storm that day and not from any problem with the ditches
although she acknowledged that the ditch line was filled with sediment and
silt. She also stated that the records maintained by respondent establish that
one of the claimants contacted respondent’s office July 26, 2002, and the ditch
line on Riddle Avenue was cleaned in response to the contact. Respondent’s
records also established that it cleaned the ditch line on Riddle Avenue on
April 22, 2003, which is in accordance with respondent’s maintenance schedule
to clean the ditches along secondary roads at least once a year.
To hold respondent liable for damages caused by inadequate drainage, claimant
must prove by a preponderance ofthe evidence that respondent had actual or
constructive notice of the existence of the inadequate drainage system and a
reasonable amount of time to correct it. Ashworth v. Div. of Highways 19
Ct. Cl. 189 (1993); Orsburn v. Div. of Highways, 18 Ct. Cl. 125 (1991).
The Court has taken into consideration all of the evidence in this claim,
including the photographs. The claimants’ property was flooded on July 8, 2003,
during a storm, but the Court has determined that the cause of the flow of
water across Riddle Avenue was proximately caused by the condition of the ditch
line across from the property. The ditch line had been allowed to fill with
sediment and silt probably from the construction project north of claimants’
property which also resulted in more water
114 REPORTS STATE
COURT OF CLAIMS [W.Va.
than usual to flow into the ditch line and then across the road. Once
respondent cleaned the ditch line to a depth of one foot or more there were no
more problems; however, on the date of the flood that occurred herein, the
ditch line was only a few inches in depth, which would not have been
sufficient. Therefore, the Court concludes that claimants have established that
respondent was negligent in its maintenance of the ditch line on Riddle Avenue
and this negligence was the proximate cause of the damages to claimants’
property on July 8, 2003.
In accordance with the findings of fact stated herein above, the Court is of
the opinion to and does make an award to claimants in the amount of $7,373.38.
Award of $7,373.38.
OPINION ISSUED JANUARY29, 2004
CORRECTIONAL MEDICAL SERViCES
VS.
DiVISiON OF CORRECTiONS
(CC-03-553)
Claimant appeared pro Se.
Charles P. Houdyschell, Jr., 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 $810,063.25 for medical services
rendered to inmates in the custody of 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 at. vs. Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
OPINION ISSUED FEBRUARY 2,2004
FRIENDS OF BARBARA FLEISCHAUR and
COMMITTEE TO ELECT BASTRESS FOR JUSTICE
VS.
DIVISION OF HIGHWAYS
(CC-02-5 15)
W.Va.} REPORTS
STATE COURT OF CLAIMS 115
Barbara Evans Fleischauer and Robert M. Bastress, Jr., Attorneys at Law, for
claimants.
Andrew F. Tan and Xueyan Zhang, Attorneys at Law, for respondent.
PER CURIAM:
This action was brought by claimants, political committees for the elections of
Barbara Evans Fleischauer and Robert M. Bastress, Jr., during the 2000 election
campaigns. Claimants allege that certain political signs and wire frames were
destroyed by respondent without the knowledge or consent of the claimants. The
signs and wire frames were being stored in a building on Monongahela Boulevard
in Morgantown, Monongalia County. The building was condemned by respondent and
respondent took actual possession of the building on or about April 11, 2001.
Respondent admits that it was in possession of the particular building through an
Order entered by the Monongalia County Circuit Court and it admits that its
employees destroyed the political signs and wire frames which are the subject
matter of the claim. The Court is of the opinion to make an award in this claim
for the reasons set forth herein below.
The testimony in the hearing of this claim established the following facts:
1. The political action committee for Barbara Evans Fleischaur purchased
certain political signs for both the primary and general election campaigns for
Ms. Fleischaur. After the campaign ended in November2000, these signs which
were reused in various campaigns were stored at Ms. Fleischaur’s law office
located at 3248 Monongahela Boulevard in Morgantown, Monongalia County. The
value of the 600 stored signs and wire frames is $2,120.00.
2. Ms. Fleischaur was notified by the respondent that it intended to condemn
the building where the signs were being stored and in which she maintained her
law office so she moved her law office in November 2000. At the time of her
move, she discussed the political signs with one of the owners of the premises,
Francis Oates, who agreed that she could continue to store the signs at the
premises until respondent took possession of the building.
3. Ms. Fleischaur was reimbursed for her moving expenses by respondent in the
amount of$3,799.00 and $840.00 for other various costs related to moving her
law office. These expenses were paid to her as relocation expenses since
respondent was taking private property for pubic purposes.
4. Robert M. Bastress, Jr., the husband of Ms. Fleischaur, was a candidate for
the West Virginia Supreme Court of Appeals in the primary election in May 2000.
At that time he had a political committee which purchased 5,000 political signs
and wire frames for the campaign. After his unsuccessful campaign, he estimated
that there were about 1,800 signs and wire frames left from the campaign which
he stored at his wife’s law office. He placed the value for these signs and
wire frames at $3,587.04.
5. When Ms. Fleischaur was driving past the condemned building, which she
remembers as being a Friday in the month of January 2001, she noticed a light
on in the building so she asked her husband to go to building to check on the
signs and wire frames. He went to the building sometime in the next couple of
weeks (he could not remember if it was in January or February 2001) at which
time he was advised by an employee of the respondent that the signs and wire
frames had been “thrown out.” That was the first notification to claimants that
the signs and wire frames had been destroyed.
Claimants assert that the signs and wire frames were wrongfully destroyed by
respondent when it occupied the condemned building. Claimants contend that if
Ms. Fleischaur or Mr. Bastress had been notified that respondent wanted the
signs and wire
116 REPORTS
STATE COURT OF CLAIMS [W.Va.
frames removed from the premises, the signs and metal frames would have been
removed immediately; however, they were not notified that respondent was taking
possession of the premises. Therefore, claimants allege a wrongful taking of
property for which the claimant Committees should be compensated.
Respondent’s position is that the signs and wire frames did not belong at the
premises which was condemned and occupied by it pursuant to an Order of the
Monongalia Circuit Court entered on April 11,2001. Respondent contends that it
did not enter the premises until after the date of the Order. Further,
respondent contends that the number of signs and wire frames alleged by
claimants to have been destroyed is inaccurate. Respondent established the
following facts:
1. Respondent entered into a contract for the construction of two bridges
across the Monongahela River in Star City, Monongalia County. It was necessary
to acquire additional parcels of real estate to accomplish this construction
project; therefore, respondent acted under the 1970 Uniform Relocation and
Acquisition Act to acquire the parcel on which there was a two-story building
in which the law office being rented by Ms. Fleischaur was located. Ms.
Fleischaur received relocation benefits as a tenant of the building.
2. Respondent entered into negotiations with the owners of the buildings on the
parcel involved in this claim with condemnation resulting. Respondent was
granted a
right of entry and defeasible title in April 2001. It did not enter the
building until after
the Order was entered by the Court on April 11, 2001.
3. In accordance with respondent’s procedures, Ms. Fleischaur received a total
of $4,608.54 for relocation expenses to move her law office to another
location. As part of its procedure, an inventory and photographs of the items
located at the law office were made at the time. The inventory list indicates
that there were 200 signs at the law office. This was an estimate reached by
the employee of respondent who viewed the premises for the inventory. This
would have been performed in the month of September 2000.
4. The monies received by Ms. Fleischaur were for relocation expenses and did not
cover the cost of any of the political signs and wire frames that were
destroyed; however, the relocation monies did include the cost to move 200
signs which were in the estimate for the moving company. Thus, respondent paid
the moving costs for the signs listed on the inventory.
5. Respondent’s employee Jim Phillips, the Project Manager for the construction
project, and other employees first entered the building where the signs and
wire frames were located on April 12, 2001, the day after the entry of the
Circuit Court Order. That was the first opportunity they had access to the
premises which were to be used by respondent as a field office for the
construction project.
6. When Mr. Phillips entered the building, he noticed the political signs and
wire frames and had the same disposed of so that the office could be occupied
by staff. The signs were thrown out a window and dumped in a dumpster. No
effort was made to contact the named individuals on the signs.
7. Brian Davis, a Project Engineer for respondent, stated that about a month
after respondent occupied the building and disposed ofthe signs, a gentleman
came to the office, inquired about the signs, was advised they had been
destroyed and then he left.
Thus, the Court has to determine if the political signs and wire frames were
wrongfully destroyed by respondent and, if so, what is a fair and reasonable
amount of compensation due the claimants for the signs and wire frames.
Respondent took possession of the building where the signs and wire frames were
being stored in April 2001. Respondent’s employees destroyed property belonging
to the claimants without
W.Va.] REPORTS
STATE COURT OF CLAIMS 117
first making inquiry of the former owner of the building or the tenant. The
identity of both of these individuals was known to respondent since the
building had just been purchased and the tenant, Ms. Fleischaur, had just moved
from the premises the previous November. The Court notes that Ms. Fleischaur
signed a West Virginia Department of Transportation, Division of Highways
Relocation Claim on December 6, 2000, which provided in part “I, the
undersigned claimant certify that I was in occupancy at the time of initiation
of negotiations to acquire the real property as designated above and that all
my personal property has been or will be moved from the captioned parcel to 235
High Street, Morgantown.” This same document was signed by a representative of
the respondent, Harry Bergstrom, on January 2, 2001, when paperwork was being
prepared to pay her for relocation expenses. The documents also establish the
moving date as November 17, 2000. Thus, Ms. Fleischaur was under an obligation
to remove all of her possessions in accordance with the documentation she
signed in order to receive compensation for relocating her law office. The
Court, based upon the foregoing, has determined that the claimants may recover
a portion of their losses based upon the fact that respondent’s employees have
some duty of care when they dispose of personal property for which ownership
can easily be determined and respondent does not exercise the due care owed the
public when it carelessly destroys personal property. For this reason, the
Court finds respondent liable in this claim.
The time frames in the record of this claim are confusing to the Court, but it
will take official notice that the 2000 Legislative Session began on January
10, 2001, for the first day of the Session and the second day of the Session
was February 15, 2001. The session was not during January through March due to
the election in 2000, but rather the session took place during February through
April 2001. The Court is of the opinion that this change in session dates
accounts for Ms. Fleischaur’s memory of the date she first saw lights in her
former law office being different from respondent’s date of entry to the
building.
The inventory prepared by respondent as its basis for reimbursement of
claimants’ relocation expenses was done in September 2000. The Court is aware
that the election occurred in November 2000, soit is logical to assume that the
political signs and wire frames had been distributed as a part of the campaign
efforts by the claimant Committees. Therefore, the estimate of 200 signs on the
inventory may not be an accurate estimate for the number of signs at Ms.
Fleischaur’s law office on the date when the same were destroyed, The estimate
of the number of signs and wire frames as documented by Ms. Fleischaur and Mr.
Bastress does not seem to be unreasonable to the Court. Therefore, the Court
will adopt those numbers for determining the damages sustained by the
claimants. However, the Court is also aware that not all of the signs were new
as many of the signs were collected and stored after being used in the previous
election campaigns. Also, respondent reimbursed Ms. Fleischaur for moving a
certain portion of the signs according to the inventory so any award will be
reduced to reflect this payment.
This is a claim wherein the principles of equity and good conscience apply.
Although this Court looks to legal principles, it is also a Court which
considers moral obligations of the State. Were it not for the fact that
respondent had the benefit of the actual knowledge of the owners of the
personal property left at the condemned premises, there maybe no basis for an
award; however, respondent’s employees could have made one telephone call which
would have solved the issue before this Court. The Court, therefore, finds that
respondent was negligent when it destroyed personal property without having
attempted to contact even one of the claimants to ascertain the
118 REPORTS STATE
COURT OF CLAIMS [W.Va.
appropriateness of destroying that property. Further, the Court has determined
that a fair and reasonable calculation of the value of the signs and wire
frames is $1,500.00 and $2,500.00, for the claimants respectively.
Accordingly, the Court is ofthe opinion to and does make an award to claimants
as stated herein above.
Award to Friends of Barbara Fleischaur: $1,500.00.
Award to Bastress for Justice: $2,500.00.
OPINION ISSUED FEBRUARY 2, 2004
ELLEN F. ANDREWS
VS.
DIVISION OF HIGHWAYS
(CC-03- 153)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney At Law, for
respondent.
PER CURIAM:
Claimant brought this action to recover costs associated with water damage to
her home and personal property allegedly due to the negligent maintenance of
the drainage system along Hamilton Addition Road and Manor Drive in White
Sulphur Springs, Greenbrier County. Respondent is at all times herein
responsible for the maintenance of Hamilton Addition Road and Manor Drive. The
Court is of the opinion to make an award in this claim for the reasons stated
more fully below.
Claimant’s property and home are situate at the corner of Manor Drive and
Hamilton Addition Road in White Sulphur Springs, Greenbrier County. Claimant
purchased the property and the home in December 1977. Her home is adjacent to
Manor Drive, an unmarked asphalt road which runs north to south in front of
claimant’s home. Hamilton Addition Road is also an unmarked asphalt road which
is located adjacent to the right side of claimant’s house. Hamilton Addition
Road runs east to west. There is a culvert located at the corner ofthe northern
end of Manor Drive and the eastern end of Hamilton Addition Road. The water flows
into the culvert at this location and channels it to a ditch line along the
side of Manor Drive opposite claimant’s property. The ditch line extends south
to the end of Manor Drive where it empties into a sixteen to twenty inch
culvert. This culvert extends under the road and underground through an empty
lot for some distance where it empties into a small creek. Claimant’s home is
level with both roads adjacent to her property. She has an asphalt driveway in
front of her home that is slightly slanted toward the road to allow water to
drain into a culvert which she had installed at the end of her driveway. In
addition, claimant has gutters and down spouts on her home. Claimant testified
that the water from the gutters and down spouts flows into her culvert.
The incident giving rise to this claim occurred on February 27, 2003, at
approximately 9:00 a.m. According to claimant, there was a heavy snowfall of
approximately six to seven inches in the White Sulphur Springs area
approximately two or three days before this incident. The snow was followed by
a day of heavy rain that quickly turned to sleet and ice. At approximately 9:00
a.m. on the morning at issue,
W.Va.] REPORTS
STATE COURT OF CLAIMS 119
claimant and her friend, B.J. Camden, returned to her home after having
breakfast at a local restaurant. They discovered approximately five to six
inches of water in the basement. Claimant opened the sliding door to the
basement to allow the water to escape. Claimant also testified that she, Mr.
Camden, and Harold Weikel, a neighbor, dug ditches and trenches to divert the
water that was flooding her property onto her surrounding neighbors’
properties. Claimant presented numerous photographs into evidence which
demonstrated that a significant amount of water had flowed through her
property. Claimant testified that, in her opinion, respondent caused excessive
water to flow onto her property because it had plowed the snow from the roads
and piled the snow on both sides of the road at the corner of Manor Drive and Hamilton
Addition Road. Claimant stated that the pile of snow was four feet high and it
blocked the entrance to the culvert located at the corner of Manor Drive and
Hamilton Addition Road. The snow prevented the water from entering the culvert
at this location which then allowed the water to accumulate. it was not able to
flow through the ditch along Manor Drive as it would under normal
circumstances. Thus, drainage water flowed from the east over top of the
culvert, across her neighbor’s yard, onto her property and into her basement.
Claimant presented numerous photographs which corroborated her testimony
regarding the path of the water. Claimant also testified that her neighbor
directly across from her on Manor Drive also had her culvert blocked as a result
of respondent leaving large piles of snow in front of the entrance. Claimant
testified that this also caused more water to flow onto her property and
contributed to the flooding of her basement. In addition, claimant stated that
her home was flooded in a similar manner in 1995, for the same reasons
as the present flood. At that time, respondent suggested that claimant install
a culvert at the end of her driveway, which she did. However, according to
claimant, respondent never created the ditch line along the left side ofManor
Drive where her home is located. Thus, she states that she has a culvert under
the driveway but respondent did not connect a ditch line on either side of the
culvert. Claimant stated that the culvert near the south end of Manor Drive was
also blocked. However, claimant testified that this culvert was blocked with
rocks and gravel. Claimant stated that as a result of this blocked culvert,
additional excess water was spilling over onto the road and flowing onto her
property contributing to the flood damages she incurred.
As a result of the flooding to claimant’s home, the utility room in the
basement of her home received approximately six inches of water. Her mother’s
antique sewing machine was damaged as well as a new computer desk, a television
cabinet, a couch, and her sewing machine. Claimant also stated that the fabrics
she uses in sewing projects were saturated and the carpet was destroyed. In
addition, claimant testified that the bedroom in the basement was flooded
causing damage to a bed, a chest of drawers, a dresser, an antique cabinet and
a cedar wardrobe. Finally, claimant testified that the utility room and
bathroom which extends the full length of the house were also flooded causing
damage to her washer and dryer, a bookcase, various clothing and toys that
belong to her granddaughter, and her Rainbow sweeper. While claimant did not
present an itemized list of damages, she testified that her Rainbow sweeper was
$1,000.00 when she purchased it in 1989 and her Christmas tree cost $189.00.
Claimant seeks a total award of $2,330.84 in damages as stated in her
complaint.
B.J. Camden testified that respondent deposited the snow at the stop sign. He
also testified that respondent could have put the snow on a vacant lot next to
the creek where it simply would have melted and drained into the creek.
Claimant contends that respondent negligently maintained the drainage system
along Hamilton Addition Road and Manor Drive which was the proximate cause of
her
120 REPORTS STATE
COURT OF CLAIMS [W.Va.
flood damage.
Respondent did not present any witnesses or evidence in this claim.
To hold respondent liable for damages caused by inadequate drainage, claimant
must prove by a preponderance ofthe evidence that respondent had actual or
constructive notice of the existence of the inadequate drainage system and a
reasonable amount of time to correct it. Ashworth v. Division of Highways, 19
Ct. Cl. 189 (1993); Orsburn v. Division of Highways, 18 Ct. Cl. 125
(1991).
In the present claim, the Court is of the opinion that the proximate cause of
the damage to claimant’s property was respondent’s failure to maintain an
adequate drainage system for the water flowing from Hamilton Addition Road and
Manor Drive. Respondent had at least constructive, if not actual, notice of the
potential for flooding at this location. Claimant notified respondent of this
problem after a similar incident in 1995, but respondent did not remedy the
problems. Further, claimant established that respondent should have used more care
and diligence in determining where to place the excess snow it cleared from the
roads. The testimony established that there was an empty lot near the location
of the culvert where respondent could have deposited the snow. Thus, respondent
knew or should have known that it negligently covered the inlet end of the
culvert at this location. The Court has determined that the claimant herein may
make a recovery for the damages proximately caused to her property.
The Court has reviewed claimant’s damages which are subjective in nature rather
than specific in amount. The Court has determined that a fair and reasonable
amount of damages is $1,500.00. This amount reflects depreciated values for the
Rainbow sweeper and claimant’s Christmas tree as well as an estimate for the
furniture and sundry items she listed.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimant in
this claim in the amount of $1,500.00.
Award of$1,500.00.
OPINION ISS UED FEBRUARY 4, 2004
ELMER R. GOINS
VS.
DIVISION OF HIGHWAYS
(CC-02- 164)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for damage to his vehicle which occurred when he
was traveling on County Route 41 near Quinnimont in Fayette County and the
vehicle struck numerous large rocks in the travel portion of the road.
Respondent was responsible at all times herein for the maintenance of County
Route 41 in Fayette County. The Court is of the opinion to deny this claim for
the reasons set forth below.
The incident giving rise to this claim occurred on March 26, 2002, at
W.Va.] REPORTS
STATE COURT OF CLAIMS 121
approximately 10:30p.m. Claimant was driving his 1991 Toyota truck on County
Route 41 towards Quinnimont. He was traveling with a passenger. It was dark and
raining outside. The road was wet which concerned the claimant. He travels this
portion of County Route 41 regularly and he is familiar with it. According to
claimant, the posted speed limit varies from forty to forty-five miles per hour
along this portion of road. He stated that the last time he traveled this
portion of road was approximately two weeks prior to this incident. He stated
that there are frequent rock falls along the portion of County Route 41 at
issue. County Route 41 at this location is a two-lane, asphalt road with a
double yellow center line and white lines along the edges. Adjacent to the lane
of travel on which claimant was traveling, there is a steep, rocky
mountainside. There is a small berm from two feet to six feet in width between
the road and the mountain and this berm varies in width depending upon the
location. As claimant was approaching a sharp curve in the road, he saw a man
walking along the side of the road trying to warn claimant as to an emergency
around the curve. Unknown to claimant at the time, there was a large rock fall
in the road. Claimant testified that he was able to slow his vehicle to
approximately thirty miles per hour to prepare for an emergency when suddenly
he observed numerous rocks in both lanes of the road. He stated that he was
unable to stop his vehicle in time and it slid into the rocks causing
significant damage to the front of the vehicle. He stated that the rocks had
fallen off the mountainside and were blocking both lanes of travel. He also
stated that a few of the rocks were three to four feet in diameter, but most
were smaller. Claimant testified that there is a “falling rock” warning sign approximately
one mile prior to the location of this incident. Claimant submitted an estimate
for the damage to the front of his truck in the amount of $793.59. The
front fender, grill, bumper, and frame were damaged. However, claimant has
comprehensive insurance coverage to cover this loss with a deductible feature
of $250.00. Thus, claimant is limited to recover $250.00. See; Sommerville
v. State Farm Fire and Casualty v. Division of Highways, 18 Ct. Cl. 110
(1991).
Claimant asserts that respondent knew or should have known that this was a high
risk area for rock falls and yet failed to take timely and adequate measures to
remedy this hazardous situation.
It is respondent’s position that it acted diligently and took reasonable
measures to warn and protect the traveling public from the hazards of rock
falls at this location.
Delbert Hypes, Equipment Operator Three for respondent in Fayette County at the
time of this incident, is responsible for operating heavy equipment such as
graders, bulldozers, and end loaders. He is familiar with County Route 41 and
with the location at issue. Mr. Hypes testified that this is a known rock fall
location and that there are approximately two rock falls at this location every
month. According to Mr. Hypes, respondent has “falling rock” warning signs at
Mile Post 4 for southbound traffic and Mile Post 1.9 for northbound traffic
thereby providing traffic from both directions falling rock warning signs prior
to reaching the location at issue. He testified that he and his crew were
notified at approximately 11:00 p.m. on the night of this incident that there
was a rock fall. In response to the call, respondent sent a crew to remove the
rocks and debris from the road as soon as possible that night. Further, he
testified that prior to this call at 11:00 p.m, his office did not have any
notice or complaints about a rock fall at this location. ln addition, Mr. Hypes
stated that it would not be feasible for respondent to erect a screen or a wall
to prevent the rocks from reaching the highway. According to Mr. Hypes, there
is too much area to cover because there is no method to determine where rock
slides will occur. Further, he stated that it may be feasible for respondent to
treat the area to keep the rocks from falling, but he stated that it would cost
“a lot of
122 REPORTS
STATE COURT OF CLAIMS [W.Va.
money”. Finally, Mr. Hypes testified that respondent has not had anyone
available to remove the rocks or take any steps to prevent any future rock
falls.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its highways. Adkins v. Sims, 46
S.E.2d 81 (W.Va. 1947). In order to hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl.
103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). The general
rule that this Court has adopted is that the unexplained falling of a rock onto
a road, without an affirmative showing of negligence on the part of the
respondent, is insufficient evidence upon which to justify an award. Coburn
v. Dept. of Highways, 16 Ct. Cl. 68 (1985). Tn the rare decisions
where the Court has found the respondent liable for rock fall damages, the
Court found that the remedial steps taken by respondent were either inadequate
or nonexistent in response to known rock fall hazards. Fiete v. Division of
Highways, 22 Ct. Cl. 139 (1999).
In the present claim, the evidence established that respondent had placed
warning signs to warn motorists of the potential rock fall hazard. The evidence
further established that respondent was not notified about this particular rock
fall until after the incident, and that it sent its employees to remove the
rocks within a reasonable amount of time. The Court is of the opinion that
claimant failed to establish sufficient evidence that respondent was negligent
in maintaining the road at this location.
Therefore, in view of the foregoing, the Court is ofthe opinion to and does
deny this claim.
Claim disallowed.
OPINION ISSUED FEBRUARY 4,2004
DELORSE J. BOBO
VS.
DIVISION OF HIGHWAYS
(CC-02-35 1)
Claimant appeared pro Se.
Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent..
PER CURTAM:
Claimant brought this action to recover for damages to her 1993 Dodge Colt
which occurred when she was traveling between Moorefleld and Petersburg in
Grant County on U.S. Route 220 and her vehicle struck a rock in the road. U.S.
Route 220 in Grant County is a highway maintained by respondent. The Court is
of the opinion to deny this claim for the reasons set forth herein below.
Claimant was traveling on U.S. Route 220 at around 9:30 p.m. on August 27,
2002, to her home in Petersburg when her vehicle struck a rock in her lane of
travel in the area of Welton Orchard Park. She was driving at fifty to
fifty-five miles per hour. It was dark and raining at the time. She testified that
she saw a rock in the road, but there were two or three cars behind her vehicle
so she did not believe she could come to a sudden stop. There were also
vehicles in the opposite lane coming toward her. Her vehicle went
W.Va.] REPORTS
STATE COURT OF CLAIMS 123
over the rock which she estimated to be eight to ten inches in diameter. She
explained that the rock broke into smaller pieces after her vehicle struck it.
U.S. Route 220 is a two-lane, concrete highway with a hillside to claimant’s
right side as she was traveling south. She stated that she had not observed any
rocks in the road at that location before this incident. She also stated there
was a “Falling Rock” sign about a mile to a mile and a half from this location.
After her vehicle struck the rock, the motor locked up because the oil pan had
a hole allowing all oil to drain out immediately. The total amount of the cost
to repair her vehicle was $768.91.
Gary Kitzmiller, respondent’s Supervisor in Grant County, testified that he is
familiar with U.S. Route 220 in the area of Welton Orchard Park. He stated that
his office did not receive any notice ofthe rock in the road on the date of
claimant’s incident; however, he did state that there is a rock cliff in that
area which is marked with a “Falling Rock” sign.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 46 S.E.2d 811 (W.Va. 1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect at issue and a reasonable amount of time
to take corrective action. Chapman v.
Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. offfighhways, 16 Ct. Cl. 8(1985). Inrock fall claims, this Court has
held that the unexplained falling of a rock onto a highway without a positive
showing that respondent knew or should have known of a dangerous condition
posing injury to person or property is insufficient to justify an award.
Coburn v. Dept. ofHighways, 16 Ct. Cl. 68 (1985); Hammond v. Dept. of fliighhway, 11 Ct 24
In the present claim, claimant failed to establish that respondent failed to
take adequate measures to protect the safety ofthe traveling public on U.S.
Route 220 in Grant County. Respondent has “Falling Rock” warning signs in place
to warn the traveling public of the potential for rock falls at this location.
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 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 FEBRUAR Y4, 2004
RICHARD H. GLASS
VS.
DIVISION OF HIGHWAYS
(CC- 02-3 10)
Claimant appeared pro Se.
Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent.
PER CURIAM:
Claimant brought this action for damages to his 1997 Ford Escort which
124 REPORTS STATE
COURT OF CLAIMS [W.Va.
occurred when he was driving his vehicle on Route 55 from Moorefield to Baker in Hardy County and his
vehicle struck a rock in the road. Respondent was at all times herein
responsible for the maintenance of Route 55. The Court is of the opinion
to deny this claim for the reasons set forth herein below.
On July 21, 2002, claimant and his wife were on their way to church at about
8:30 a.m. with claimant driving his vehicle at approximately thirty-five to
forty miles an hour when he observed a rock in his lane of travel. He was
proceeding around a curve when this incident occurred. He estimated that he was
fifteen feet from the rock when he first saw it; that the rock was ten to
twelve inches in diameter; and that “it was jagged.” Since he is the pastor at
the church not far from the scene of the accident, he drives this stretch of
highway frequently. He had noticed rocks at the side of the road in the area
where his accident occurred on prior occasions, but there were not any rocks in
the travel portion of the Route 55. As a result of this incident,
claimant’s vehicle sustained damage to the converter which was repaired at a
cost of $534.92.
Larry 0. Funk, respondent’s Supervisor for Hardy County, testified that he is
familiar with Route 55 which he described as a two-lane asphalt road with
shoulders three to five feet wide in most places. At the area of claimant’s
accident, there is a shale bank twenty to thirty feet high, but the area is not
considered an area prone to having rock falls. There are no warning signs in
the area. The hillside is sloped and it is covered with trees and brush. There
are curves that have rocky areas adjacent to the road and rocks can fall into
the road especially after rain.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 46
S.E.2d 811 (W.Va. 1947). To hold respondent liable, claimant must establish by
a preponderance of the evidence that respondent had actual or constructive
notice of the road defect at issue and a reasonable amount of time to take
corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl.103 (1986); Pritt
v. Dept. ofHighhways, 16 Ct. Cl. 8(1985). In rock fall claims, this Court
has held that the unexplained falling of a rock onto a highway without a
positive showing that respondent knew or should have known of a dangerous
condition posing injury to person or property is insufficient to justify an
award.
Coburn v. Dept. ofHighways, 16 Ct. Cl. 68(1985); Hammond v. Dept.
ofHiighhway, 11 Ct 24
In the present claim, claimant failed to establish that respondent failed to
take adequate measures to protect the safety of the traveling public on Route
55 in Hardy County. Claimant had not seen rocks in the road at the location of
his accident on other occasions and he is a frequent traveler on Route 55.
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 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 FEBRUARY 4, 2004
ELV1N E. THOMPSON
VS.
DIVISION OF CORRECTIONS
W.Va.] REPORTS
STATE COURT OF CLAIMS 125
(CC-0 1-340)
Claimant appeared pro Se.
Charles P. Houdyschell, Jr., Assistant Attorney General, for respondent.
PER CURIAM:
Claimant, Elvin E. Thompson, a former inmate at Mt. Olive Correctional Complex,
brought this action against respondent to recover $1,222.00 which he alleges
was deducted from his Veterans’ benefits as a result of respondent’s negligence
in failing to notify timely the Veterans Administration of his incarceration.
A hearing was conducted by the Court in this claim on September 10, 2003, at
which time claimant testified as to the facts and circumstances giving rise to
this claim. Claimant was incarcerated at Mt. Olive Correctional Complex on
February 3, 1997. Claimant was receiving Veterans’ benefits prior to his
incarceration in the amount of $94.00 per month. He continued to receive $94.00
per month while incarcerated at Mt. Olive from February 3, 1997, through April
22, 1999, for a total amount of$1,222.00. The Department of Veterans Affairs’
rules provide that a veteran’s benefits are to be restricted if a veteran is
convicted of a felony and imprisoned for more than sixty days. Once incarcerated,
the veteran’s benefits are reduced to ten percent of the actual monthly benefit
of which the veteran then receives five percent. The Department of Veterans
Affairs’ rules provide that the overpayment of benefits to an incarcerated
veteran based upon his failure to notify the Department of Veterans Affairs of
his incarceration results in the loss of all financial benefits until the
overpayment is recovered. In this particular instance, the Department of
Veterans Affairs was not notified of claimant’s incarceration until April 22,
1999, when Kemeth Watson, Veterans Affairs liaison for respondent, contacted
the Department of Veterans Affairs informing it that claimant was incarcerated.
As a result, the Department of Veterans Affairs took the position that, since
it received late notice ofclaimant’s incarceration, claimant was overpaid in
the amount of $94.00 per month for the period of time between February 3,1997
to April 22,1999, in the amount of $1,222.00. As a result of the overpayment,
the Department of Veterans Affairs stopped paying claimant any benefits until
the overpayment was recovered. If the Department of Veterans Affairs had been
notified timely of claimant’s incarceration, he would have received a reduced
benefit of $47.00 per month, instead of the $94.00 per month, and he would not
have been charged with the overpayment. Claimant testified that he was unaware
that he was required to notify the Department of Veterans Affairs of his
incarceration. He testified that he informed employees of Mount Olive
Correctional Complex, when he was first processed, that he was a disabled
veteran and he thought “it would be handled from there.” Claimant stated that
the Department of Veterans Affairs was not corresponding with him at the prison
even though the Department knew he was there. He stated that the Department
continued sending mail to his home address and that he had no way of getting
notification from his home while in prison. However, claimant testified that
his sister was designated by him to receive his mail including the mail from
the Department of Veterans Affairs, but he is unclear whether she was the payee
on his benefit check. He testified that she had access to his bank account and
that his benefit check was to be deposited directly to his bank account.
Further, he testified that he did not know that Mount Olive had a Veterans
Affairs liaison that he could communicate with until it was too late. According
to claimant, if
126 REPORTS
STATE COURT OF CLAIMS [W.Va.
respondent had notified the Department of Veterans Affairs in a timely manner
that he was incarcerated, he would have been receiving $47.00 permonth,
fortwenty-six months for a total amount of $1,222.00, which is the amount he
was entitled to recover. However, claimant states that since respondent failed
to notify the Department of Veterans Affairs, in a timely manner he continued
to receive $94.00 per month for twenty-six months for a total amount of
$2,444.00. Thus, claimant was overpaid in the amount of$ 1,222.00, which is the
difference between $94.00 for twenty-six months, and $47.00 for twenty-six
months. Further, when the Department of Veteran Affairs sought to recover the
$1,222.00 from claimant, it did so by eliminating claimant’s monthly benefits
and recovered the overpayment in thirteen months. According to claimant, this
presented an economic hardship for him by forcing the total repayment in such a
short period of time. He testified that the benefits were recovered much
quicker than it was paid out.
Respondent contends that it was not responsible for notifying the Department of
Veterans Affairs that claimant was incarcerated and that claimant’s overpayment
and subsequent loss of benefits, if any, was not the, fault of the respondent.
Further, respondent contends that claimant did not suffer damages and may not
recover any award.
Kenneth Watson, an employee of respondent’s at Mount Olive Correctional Center,
serves as the liaison between respondent and the Department of Veterans
Affairs. He testified that as the liaison, he corresponds with inmates and the
Department of Veterans Affairs, and that he is familiar with the rules and
regulations regarding the benefits of incarcerated veterans. Mr. Watson
testified that it is the inmate’s responsibility to notify the Department of
Veterans Affairs of his incarceration, and not the respondent’s responsibility.
According to Mr. Watson, he does not notify the Department of Veterans Affairs
of an inmate’s incarcerated status unless contacted by the Department regarding
the inmate. Mr. Watson stated that the Department of Veterans Affairs made an
inquiry about the claimant which is what prompted him to send a notice of
claimant’s incarceration on April 22, 1999. Mr. Watson also testified that,
while respondent does not have a written policy regarding whose responsibility
it is to contact the Department of Veterans Affairs, respondent does provide a
form to inmates during “intake” that the inmate can state whether or not he has
served in the military. Respondent produced a copy of claimant’s intake form
from Mt. Olive Correctional Complex and claimant did not indicate that he was a
veteran. Further, respondent submitted the Department of Veterans Affairs’
rules into evidence which deals with incarcerated veterans. Rule 14.2.1 states
in part, if the veteran continues to receive benefits after sixty days of
incarceration, it will result in an “overpayment”. “The VA considers it the
recipient’s fault if this occurs because the recipient failed to notify the VA
of his/her incarceration.” Further, respondent asserts that claimant did not
incur any out- of-pocket damages as a result of the overpayment. Claimant
admitted that he was unjustly enriched by receiving the $1,222.00, and that the
Department of Veterans Affairs stopped paying claimant’s benefits only long
enough to collect the overpayment of
$1,222.00.
The Court is of the opinion that respondent was not negligent in failing to
notify the Department of Veterans Affairs that claimant was incarcerated.
Claimant failed to produce evidence that respondent had a duty to notify the
Department of Veterans Affairs of his incarceration. Given the evidence
presented, the Court is of the opinion that claimant had the duty to notify the
Department of Veterans Affairs that he was incarcerated in a timely maimer.
Claimant seems to have been confused as to whether or
W.Va.J REPORTS
STATE COURT OF CLAIMS 127
not his sister was designated as his “payee” while he was incarcerated and the
testimony is unclear on this issue. However, claimant testified that she was
designated to receive his mail, and, therefore, it would be unreasonable to
hold respondent liable for not sending relevant information to the Department
regarding the claimant’s incarceration. Claimant was in the best position to
notify the Department of Veterans Affairs of his status. Regardless, even if
the respondent did have a duty to notify the Department of Veterans Affairs,
the claimant did not suffer any damages. He was overpaid by the Department of
Veterans Affairs while incarcerated and the Department simply recovered the
amount of the overpayment and nothing more.
Accordingly, the Court is of the opinion to and does hereby deny this claim.
Claim disallowed.
OPINION ISSUED MARCH 2, 2004
PATRICIA SUE BELLAMY
VS.
DIVISION OF HIGHWAYS
(CC-02-506)
Claimant appearedpro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage to her vehicle which occurred when her
husband James Bellamy was operating the vehicle on MacCorkle Avenue in
Charleston, Kanawha County, and the vehicle struck a hole in the road.
Respondent was responsible at all times herein for the maintenance of MacCorlde
Avenue. The Court is of the opinion to deny this claim for the reasons set
forth more fully below.
There is an issue as to the date on which this incident occurred. The claim
form that claimant completed for this claim indicates that the incident
occurred on December 12, 2002, which is the date that the respondent relied
upon in preparing for the hearing. However, at the hearing, Mr. Bellamy
testified that he was not sure of the date and he stated that it probably
occurred in September 2002, but upon further review, he agreed that it may have
occurred on December 12, 2002. That issue having been resolved, Mr. Bellamy
testified that he drove from his home in Beckley, Raleigh County, to the
hospital at Charleston Area Medical Center’s Memorial Division to visit his
wife who was in the hospital on at least three different occasions for a total
of twenty-five days. Regardless of the actual date of this incident, Mr.
Bellamy testified that he was traveling eastbound on MacCorkle Avenue as he
left the hospital. It was approximately 6:30 p.m. and it was dark and raining.
He stated that he was approximately halfway between the hospital and the
entrance to I- 77 when the vehicle struck either a manhole or a hole in the
pavement of the road. He did not see the hole prior to striking it. He
described the impact as significant, but he was able to drive claimant’s vehicle
home to Beckley. The next morning he noticed that the tire pressure was low and
decided to take his vehicle to a local repair shop to have the tire checked.
According to Mr. Bellamy, a mechanic at the repair shop informed him that the
wheel was damaged and that this damage was probably caused by the tire having
struck a hole in the road. Claimant submitted an invoice into
128 REPORTS STATE
COURT OF CLAIMS [W.Va.
evidence for the cost of replacing the wheel in the amount of $240.89.
Claimant asserts that respondent knew or should have known that this hole was
in the road and that it presented a hazardous condition to the traveling
public.
Respondent did not present any witnesses or evidence at the hearing of this
matter.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 81 (W.Va. 1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that claimant failed to
present any evidence that respondent was negligent. Claimant failed to
establish that respondent had constructive or actual notice of the hole which
caused the damage to claimant’s vehicle. Claimant was unable to establish the
approximate date on which this incident occurred and she was unable to
establish the approximate location of the hole. Further, Mr. Bellamy admits
that the vehicle may have struck a manhole and not a hole in the pavement. This
Court has consistently held that an award cannot be based on mere speculation. Mooney v. Dept. of Highways, 16 Ct. Cl. 84 (1986); Phares v. Division of Highways, 21
Ct. Cl. 92(1996). After a thorough review ofthe evidence, the Court finds that
the claimant has not established that the damage to her vehicle was caused by
any negligence on the part of respondent.
Accordingly, the Court is of the opinion to and does hereby deny this claim.
Claim disallowed.
OPINION ISS UED MARCH 2, 2004
KEITH BURDETTE
VS.
DiVISiON OF CORRECTIONS
(CC-02-484)
Claimant appeared pro Se.
Charles P. Houdyschell, Jr., Assistant
Attorney General, for respondent.
PER CURIAM:
Claimant brought this action to recover the value of certain items of personal
property that he alleges were negligently seized and destroyed by the
respondent while he was an imnate at Mt. Olive Correctional Center. Claimant
placed a value of $217.25 upon the property.
A hearing was conducted by the Court in this claim on October 30, 2003, at
which time the claimant testified as to the facts and circumstances giving rise
to this claim. On or about October 5, 2001, claimant Keith Burdette was moved
from his single cell unit to lock-up. While he was in lock-up, respondent
removed certain personal property items from his cell, because this property
was over the “in cell limit” and was
W.Va.] REPORTS
STATE COURT OF CLAIMS 129
considered “altered.” According to claimant, these property items were
“grandfathered”2 under a former policy and should not have been seized.
Claimant testified that while he was in lock-up, he wrote a letter to Lori
Grant, a counselor at Mount Olive Correctional Complex at that time, informing
her that he did not understand why he had to dispose of the items and that it
was his understanding that he was under the former policy and that the disputed
items of personal property were grandfathered even though they were prohibited
under the new policy. Claimant contends that he also informed Ms. Grant in this
letter that if he could not keep the property items at issue that he wanted
them mailed out of the facility to his home address.
Claimant testified that when he was released from lock-up on or about August
31, 2002, he discovered that numerous items of his personal property were
missing. Claimant stated that he first contacted Mr. Kincaid, the unit manager,
about the missing property. Mr. Kincaid informed claimant that the property had
been destroyed. Claimant testified that he thought that respondent was either
going to store his personal property in the state shop until he got out of
lock-up or that the property would be mailed to his home address. Claimant
testified that he was missing two pairs of thermal pants, five sweatshirts, two
pairs of fleece sweat-pants, a hooded sweatshirt, three pairs of sweat- shorts,
and one thermal lined hooded sweatshirt. Claimant presented evidence at the
hearing ofthis matter indicating that he exhausted all the proper
administrative remedies and procedures in seeking to recover his property.
Claimant presented the respondent’s “evidence/property seizure receipt” into
evidence at the hearing of this matter, which indicated the property items that
were seized and the reason for the seizure. The evidence/property seizure
receipt indicates that the claimant was to determine the disposition of this
property by indicating on the form whether the property was to be either mailed
out of the prison or destroyed. In addition, there was a second page attached
to the form from Ms. Grant, dated December 3, 2001, which stated that if
claimant wanted the property to be mailed that he needed to provide a voucher,
and a name and address where the property was to be shipped. Claimant admits
that he did not indicate on the form whether he wanted the property mailed and
he did not provide a voucher or name and address. He stated that Ms. Grant
verbally informed him that she would take care of the problem. However, the
property was destroyed. Claimant was unable to produce the letter he alleges he
wrote to Ms. Grant on December 4, 2002, and he was unable to produce any
written response from Ms. Grant stating that she would take care of claimant’s
property. Claimant exhausted his administrative grievance process and his claim
was denied by the Warden on September 17, 2002.
Claimant contends that respondent negligently destroyed his personal property
without his permission and in violation of respondent’s procedures.
It is respondent’s position that claimant failed to timely notify it as to
whether or not he wanted his personal property items mailed from the facility
or to have the items destroyed.
Peggy J. Giacomo, Storekeeper Two for respondent, testified that she is
familiar with the practices and procedures regarding the storage of inmates’
property at respondent’s state shop at the Mount Olive Correctional Complex.
Ms. Giacomo testified that one of the state shop’s duties is to store an
inmate’s property when he is placed in
2 A grandfather clause is a regulatory clause that
creates an exemption because of circumstances existing before a new regulation
takes effect.
130 REPORTS STATE
COURT OF CLAIMS [W.Va.
lock-up and return the property to the inmate when he is returned to a regular
cell. Ms. Giacomo testified that inmates are limited to the number of clothing
items they are allowed to have in their cells. She testified that while
Operational Procedure 4.03 is the current governing policy, Operational
Procedure 3.10 was in effect at the time of this incident and is substantially
similar to Operational Procedure 4.03. According to Ms. Giacomo, inmates are
limited to the number of property items in their possession. Once an inmate is
found to have too many items ofpersonal property, the respondent offers the
inmate a choice as to whether to mail the items to a designated recipient or to
have the items destroyed. Ms. Giacomo testified that the property items are
listed on a “S-i” seizure form and shown to the inmate. in addition, she stated
that the inmate has thirty days to make a decision as to what is to be done
with the property. If the property is the subject of the grievance process, it
is held until the grievance is resolved. if an inmate does not respond within
the thirty days, then the respondent destroys the property. Ms. Giacomo
testified that the claimant’s property was seized because it was altered or
over the “in-cell” limit. She also testified that claimant was given an option
on his S-i seizure form to mail the property or to have it destroyed, and that
it appears that he did not respond in a timely manner. Thus, his property was
destroyed. Ms. Giacomo also testified that she is aware that some items were
“grandfathered” at the Mount Olive Correctional Complex when inmates were moved
from the Moundsville facility. However, she was not aware of any property that
is currently grandfathered by the policy.
This Court has held that a bailment exists when respondent takes the personal
property of an inmate, and keeps it for storage or other purposes, and then has
no satisfactory explanation for not returning it. Heard v. Division of
Corrections, 21 Ct. Cl. 151(1997); Edens v. Division of Corrections, 23
Ct. Cl. 221(2000). In the present claim, the Court is of the opinion that no
bailment relationship existed. Respondent timely notified claimant that it had
seized his personal property. Respondent also offered claimant the choice of
mailing the property out of the facility or having it destroyed. The evidence
also established that respondent gave claimant timely notice that it would
store the property for thirty days, and that claimant failed to notify
respondent to mail the property out of the facility. Once the time period for
respondent’s storage of the claimant’s seized property expired, it had no duty
to continue storing the property. Claimant did not indicate what he desired to
be done with the property within the prescribed time period of thirty days.
Thus, respondent destroyed the property in accordance with Operational
Procedure 3.10. Claimant failed to establish that respondent negligently
destroyed his property. Claimant did not establish that his property was
“grandfathered” under any policy which would have prohibited respondent from
destroying the seized property. Regardless, claimant could have avoided this
situation if he had simply indicated that the property should be mailed from
the facility to a named addressee and address.
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 MARCH 2, 2004
ANNA BELL CARNELL
VS.
W.Va.] REPORTS
STATE COURT OF CLAIMS 131
DIVISION OF HIGHWAYS
(CC-03-333)
Claimant’s husband appeared on her behalfpro se.
Andrew F. Tarr, Attorney At Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage to her 2002 Oldsmobile Intrigue which
occurred when her daughter, Barbara Darlene Harris, was operating the vehicle
on County Route 2 between Quinwood and Marfrance in Greenbrier County and a
tree limb fell onto the vehicle causing damage thereto. Although this claim was
originally filed in the name of claimant’s husband, Charles Camell, the Court
on its own motion amended the style of the claim to reflect the titled owner of
the vehicle as the claimant. Respondent is responsible for the maintenance of
County Route 2 in Greenbrier at all times herein. The Court is of the opinion
to deny this claim for the reasons set forth herein below.
Barbara Darlene Harris, claimant’s daughter, testified that on June 17,2003, at
about 10:10 a.m., she was traveling on County Route 2 to go to the doctor. Her
daughter was a passenger in the vehicle. She described County Route 2 as a
narrow road. It had been raining earlier that week. As she was driving at
approximately fifteen to twenty miles per hour on this road, a tree limb,
suddenly and without warning, fell onto the hood of her mother’s vehicle. She
drove to the side of the roadway and her brother-in-law, who had been driving
his vehicle behind them, stopped to see if they were all right. She observed
that the limb was three to four inches in diameter. It had broken apart upon
impact with the vehicle. It appeared to be a dead limb which had fallen from a
tree four to five feet from the edge of the road. She stated that she had not
observed this particular tree prior to the date herein. The respondent later
cut the tree down so she stopped to look at it.
Claimant’s husband, Charles Carnell, testified that he obtained an estimate for
the damages to claimant’s vehicle and had it repaired for $789.21. Claimant has
a deductible feature of $100.00 from her insurance so she is limited to a
recovery in that amount.
William Hoover, respondent’s Transportation Crew Supervisor for Crawley in
Greenbrier County, testified that he is familiar with County Route 2 which is
in the western portion of Greenbrier County. He testified that he went to the
scene of the accident involving claimant’s vehicle, He saw dead limbs and a
partially dead tree so he had the tree removed. He estimated that it was
approximately eighteen inches “at the butt” and that it was within the State’s
right of way.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of motorists on its roads and highways. Adkins V. Sims,
46 S.E.2d 81 (W.Va. 1947). To hold
respondent liable, claimant must establish by a preponderance of the evidence
that the respondent had actual or constructive notice of the hazard at issue
and a reasonable amount of time to take corrective action. C’hapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl 8 (1985).
This Court has held that respondent is
liable for dangerous trees or tree limbs on its property or right of ways. The
general rule this Court has adopted is that if a tree is dead and poses an
apparent risk, then respondent may be held liable. Wiles v. Division of Highways, 22 Ct. Cl. 170 (1999).
In the present claim, the Court is of the opinion that claimant failed to
establish
132 REPORTS STATE
COURT OF CLAIMS [W.Va.
that respondent had actual or constructive notice that this particular tree or
tree stump presented a risk to the traveling public. There was no evidence that
respondent had any prior complaints regarding this tree.
Thus, there being no basis for a finding of negligence on the part of
respondent, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED MARCH 2, 2004
MICKEY LEE VANCE
VS.
DIVISION OF HIGHWAYS
(CC-03-32 1)
Claimant appeared pro
Se.
Andrew F. Tarr, Attorney At Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage to his 1994 Ford Ranger pickup truck
which occurred when he was traveling on County Route 97 near Pineville in
Wyoming
County, and his vehicle struck a large tree or tree stump which had fallen onto
the road.
Respondent was responsible at all times herein for the maintenance of County
Route 97.
The Court is of the opinion to deny this claim for the reasons set forth more
fully below. There is some doubt as to the exact date on which the incident
giving rise to this
claim occurred. However, claimant stated on his claim form that the date was
May 7, 2003, and at the hearing of this matter he testified that it was either
on May 7, 2003, or “close to it.” On the day at issue, claimant was traveling
from his home in Glover to Pineville, Wyoming County. It was between 10:00 p.m.
and 10:30 p.m. Claimant is familiar with the road and travels it often.
Claimant testified that he was traveling between forty-five and fifty miles per
hour and he was approximately one hundred yards from his home, when suddenly
and without warning, a large tree or tree stump fell from the bank adjacent to
his travel lane. His vehicle was approximately three or four feet from the tree
when he first observed it. He applied the brakes whereupon his vehicle slid and
struck the tree with enough force to knock the tree or tree stump to the
opposite side of the road. The impact caused significant damage to his vehicle.
Fortunately, claimant was not injured and he was able to drive home. He called
the police and respondent who arrived at the scene of the incident
approximately twenty or thirty minutes later. Claimant described the object his
vehicle struck as a tree or a large tree stump. He stated that it was
approximately four feet in diameter and that it was originally located just a
few feet up the hillside on the side of the road. Further, he stated that the
tree was “about half alive and half dead”, in addition, he stated that he had
never noticed this particular tree prior to this incident. He stated that the
tree was not hanging over the road or was anything that would have gained his
attention. Claimant introduced an estimate into evidence at the hearing in the
amount of $1,789.97. However, he also testified that he had comprehensive
insurance coverage that would have covered this loss at the time of the
incident with a deductible feature of $1,000.00. Thus, claimant is limited to a
W.Va.j REPORTS
STATE COURT OF CLAIMS 133
recovery in the amount of his insurance deductible feature. See Sommerville/State Farm Fire and casualty v.
Division of Highways, 18 Ct. Cl. 110
(1991).
Claimant contends that respondent knew or should have known that this tree
presented a hazard to the traveling public and that it failed to take the
proper remedial action which was the proximate cause of the damage to his
vehicle
Respondent did not present any witnesses or evidence at the hearing of this matter.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of motorists on its roads and highways. Adkins
v. Sims, 46 S.E.2d 81 (W.Va. 1947). To hold respondent liable, claimant
must establish by a preponderance of the evidence that the respondent had
actual or constructive notice ofthe hazard at issue and a reasonable amount of
time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl 8 (1985).
This Court has held that respondent is
liable for dangerous trees or tree limbs on its property or right of ways. The
general rule this Court has adopted is that if a tree is dead and poses an
apparent risk, then respondent may be held liable. Wiles v. Division of
Highways, 22 Ct. Cl. 170 (1999).
in the present claim, the Court is of the opinion that claimant failed to
establish that respondent had actual or constructive notice that this
particular tree or tree stump presented a risk to the traveling public.
Claimant admitted that he had not noticed the tree before this incident.
Further, he was not sure as to whether this was a tree or a tree stump, and he
stated that it appeared to be partially dead and partially alive. Claimant
presented no evidence that respondent had any prior complaints regarding this
tree.
Thus, there being no basis for a finding negligence on the part of respondent,
the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED MARCH 2, 2004
BOBBY J. EWTNG
VS.
DIVISiON OF HIGHWAYS
(CC-00-437)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney At Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage to a tire on his 1983 Chevrolet Caprice
which occurred when he was traveling on 1-64 westbound at the Eisenhower Drive
exit and his vehicle went over a piece of metal laying on the highway. 1-64 in
Beckley, Raleigh County, is maintained by respondent. The Court is of the
opinion to deny this claim for the reasons set forth herein below.
Claimant testified that he was driving westbound off of the 1-64 ramp at the
Eisenhower Drive exit when he realized that his vehicle had run over a piece of
metal approximately a foot in length and two inches thick. He could not
describe it in detail because he only viewed as it flew from beneath his
vehicle. He had to drive off the exit
134 REPORTS STATE
COURT OF CLAIMS [W.Va.
ramp before he was able to stop to check any damage to his vehicle. The piece
of metal had damaged the right front tire which had to be replaced at a cost to
claimant of$ 119.50.
Respondent did not offer any witnesses or evidence in this claim.
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, 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).
in the instant claim, claimant has not provided the Court with any basis to
find negligence upon the respondent. There was no activity on going in the area
such as construction to explain the presence of a piece of metal on the
roadway.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
OFINIOATISSUED MARCH 2, 2004
HAZEL MCBRIDE
VS.
DiVISION OF HIGHWAYS
(CC- 02-216)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for
respondent..
PER CURIAM:
Claimant brought this action for damage to her 1997 Dodge Avenger which
occurred when her son, Mark McBride, was driving the vehicle on Route 20 in
Summers County near the Bluestone Dam when rocks fell from the hillside
adjacent to the road and struck the vehicle causing damages to the vehicle.
Respondent was at all times herein responsible for the maintenance of Route 20.
The Court is of the opinion to deny this claim for the reasons set forth herein
below.
Claimant’s son, Mark McBride, was operating claimant’s vehicle on December
1,2001, on Route 20 in Summers County. He had one passenger sitting in the
right, front seat. It was a cold, foggy evening. The accident occurred at
approximately 2:00 a.m. Route 20 is a two-lane, asphalt road marked with a
yellow center line and white edge lines. Mr. McBride testified that he was
proceeding southbound from Hinton to Pipestem and that he was driving at
fifty-five miles per hour in a straight stretch of the highway when a rock,
suddenly and without warning, struck the right, rear of the vehicle. More rocks
fell onto the right side of the roof of the vehicle, and one fell directly in
front of the vehicle which was struck with the right front tire. The vehicle
went into the air, moved on two tires and then came back down into an upright
position. After the vehicle struck the rock, Mr. McBride testified that he was
able to allow the vehicle to coast to a wide spot adjacent to the road and it
was later towed from the scene. He described the rock as being two or three
feet high and as big as the hood of the vehicle. A Traffic Crash Report
prepared by the Summers County Sheriff’s Office indicated that the vehicle
traveled
W.Va.] REPORTS
STATE COURT OF CLAIMS 135
some 286 feet where it went off the
right side of the road, then it traveled some 62 feet off the edge of the road,
reentered the roadway and traveled some 59
feet crossing the center line and
traveling another 16 feet before it stopped. Mr. McBride stated that he had
driven through this same area of Route 20 earlier that day and he had not
observed any rocks on the road at that time. He is familiar with Route 20 and
he stated that he had observed rocks in the road in this area on other
occasions. There are “Falling Rock” signs for both the northbound and
southbound traffic for this particular section of Route 20. Further, he
explained to the Court that this area of highway is a known rock fall area.
Although claimant’s husband, Gary McBride testified about the damages to the
vehicle and established damages to her vehicle in the amount of $8,758.46 which
represents the value of her vehicle as a total loss, he explained that claimant
had insurance coverage with a deductible of $100.00. The Court limits recovery,
if any, in this claim to the amount of the deductible even though the insurance
did not pay any part of claimant’s loss because the driver of the vehicle, Mark
McBride, was an excluded driver under the terms of the insurance policy. The
claimant is not entitled to recover more than the amount of the deductible
provision in her policy.
Respondent did not offer any testimony or evidence in this claim.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 46 S.E.2d 811 (W.Va. 1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect at issue and a reasonable amount of time
to take corrective action. Chapman v.
Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. ofHighhways, 16 Ct. Cl. 8(1985). In rock fall claims, this Court has
held that the unexplained falling of a rock onto a highway without a positive
showing that respondent knew or should have known of a dangerous condition
posing injury to person or property is insufficient to justify an award.
Coburn v. Dept. ofHighways, 16 Ct. Cl. 68(1985); Hammond v. Dept. ofHiighhway, 11
Ct 24
In the present claim, claimant failed to establish that respondent did not take
adequate measures to protect the safety of the traveling public on Route 20 in
Summers County. Respondent has placed “Falling Rock” warning signs to warn the
traveling public of the potential for rock falls at this location and
respondent reacted as soon as it received notice of this incident and remove
the rocks from the road. The driver of claimant’s vehicle was familiar with
Route 20 and the propensity of rocks to fall onto the roadway. The Court
recognizes that driving in an area with rock hillsides where rocks fail
suddenly onto the vehicle and in front of the vehicle giving the driver little
time to react does not mean the driver is at fault. However, the respondent
likewise does not have time to react and carmot be held to be negligent for the
accident which occurs. 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 MARCH 2, 2004
KAREN S. HUNLEY
VS.
136 REPORTS
STATE COURT OF CLAIMS [W.Va.
DIVISION OF HIGHWAYS
(CC03-274)
Claimant appeared pro
Se.
Andrew F. Tarr, Attorney At Law, for
respondent.
PER CURIAM:
Claimant brought this action for damage to her 1993 Pontiac Grand Prix which
occurred when she was operating her vehicle on U.S. Route 52 on Coaldale
Mountain in Mercer County and a large rock fell from the hillside striking the
windshield. Respondent was at all times herein responsible for the maintenance
of U.S. Route 52.
The Court is of the opinion to deny
this claim for the reasons set forth more fully below.
The incident giving rise to this claim occurred on April 8, 2003, at
approximately 9:30 a.m. Claimant was driving her grandmother, who was the front
seat passenger, to a doctor’s appointment. She was traveling southbound on U.S.
Route 52 at approximately forty miles per hour. It was raining and
claimant had her headlights on at the time of this incident. Claimant stated
that there are a number of rocks on the hillside adjacent to her lane of
travel. As claimant was proceeding into a right curve in the road, she heard a
loud noise and observed a rock about the size of a basketball strike her
windshield. The impact shattered the windshield and threw glass onto the
claimant and her grandmother. Fortunately, there were no serious injuries, but
claimant did have to visit the emergency room twice for serious headaches. The
windshield was destroyed requiring claimant to purchase a new one at a cost of $145.00.
Claimant also testified that she had to purchase a new inspection sticker
at a cost of$14.00. She stated that she had just had a new one placed on the
vehicle a month prior to this incident. Thus, claimant seeks a total award
of$l59.00.
Claimant testified that she travels this portion of road approximately twice a
week. The last time she traveled the road was approximately one week prior to
this incident. She stated that she has never seen a rock fall at this location.
She also stated that she did not see any rock fall warning signs for southbound
traffic on the date of this incident. However, she did state that there was a
rock fall warning sign near this location on the opposite side of the road for
northbound traffic on the date of this incident. She testified that she did
observe a warning sign for southbound traffic a few months later and assumed
that respondent must have put it up after this incident, unless it was covered
by brush or trees on the date of this incident.
Claimant asserts that respondent knew or should have known that this location
presented a rock fall hazard and it should have taken the proper remedial
measures to remedy this hazard.
Respondent did not present any witnesses or evidence in this claim.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of motorists on its roads and highways. Adkins
v. Sims, 46 S.E.2d 81 (W.Va.1947). To hold respondent liable for road
defects of this type, claimant must establish by a preponderance of the
evidence that the respondent had actual or constructive notice of the road
defect at issue and a reasonable amount of time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways,
16 Ct. Cl.8 (1985). The general rule this Court has adopted is that
the unexplained falling of a rock onto a highway, without an affirmative
showing that respondent knew or should have known ofa dangerous condition
posing injury to person or property is insufficient evidence upon which to
justify an award. Coburn v. Dept. of
W.Va.] REPORTS
STATE COURT OF CLAIMS 137
Highways, 16 Ct. Cl. 68(1985); Hammond v. Dept. of Highways, 11
Ct. Cl. 234 (1977).
The Court is of the opinion that the respondent took reasonable steps to insure
the safety of the traveling public in this claim. Further, there was no
evidence that respondent had notice of a dangerous condition.
Therefore, in view of the foregoing, the Court is of the opinion to and does
deny this claim.
Claim disallowed.
OPINION ISS UED MARCH 2, 2004
LENORA J. BUNTING
VS.
DIVISION OF HIGHWAYS
(CC-03-055)
Claimant appeared pro Se.
Xueyan Zhang, Attorney At Law, for
respondent.
PER CURTAM:
Claimant brought this action for damage to her vehicle which occurred when she
was traveling on County Route 50/9 in Smithburg, Doddridge County, and the
vehicle struck a large hole in the road. Respondent was responsible at all
times herein for the maintenance of County Route 50/9 in Doddridge County. The
Court is of the opinion to deny this claim for the reasons set forth more fully
below.
The incident giving rise to this claim occurred on May 21, 2002, at
approximately 4:30 p.m. Claimant was traveling in her 2002 Buick Park Avenue on
County Route 50/9, also referred to as Herbert Avenue, to her home in
Smithburg, Doddridge County. County Route 50/9 is a one and one-half lane,
dead-end, asphalt road. It is an unmarked low priority road and is
approximately twelve-feet wide. Claimant’s home is located adjacent to County
Route 50/9 and it is approximately three- fourths of a mile from the junction
of County Route 50/9 with the main highway. According to claimant, there are
ten homes located on this road and many residents park their vehicles in the
lane of travel adjacent to their homes. Thus, the traveling public has use of
only one lane. On the evening of this incident, claimant was proceeding on County Route 50/9
at approximately twenty miles per hour when suddenly the vehicle struck a large
hole in the road. Claimant described hearing a loud “crunching noise”. She
stopped the vehicle and noticed that one of her tires was flat. Claimant
discovered that the vehicle also had a cracked wheel as a result of the impact.
Claimant testified that she travels this road approximately five days per week
and at least twice a day. She stated that she is very familiar with the
location of the hole which her vehicle struck since she passes it every time
she travels the road. According to claimant, she usually avoids the hole by
straddling it with the vehicle or by driving around it. However, she did not do
so on this occasion despite the fact that there was no oncoming traffic at the
time this incident occurred. Claimant also stated that she reported this same
hole to respondent a number of months prior to this incident, and respondent
filled the hole with rocks which was only a temporary repair. Claimant
testified that the hole reappeared and was present
138 REPORTS
STATE COURT OF CLAIMS [W.Va.
for a significant period of time between the time respondent repaired it and
the date of this incident. However, she is not sure if she reported it to
respondent during this time period. Claimant submitted a repair bill into
evidence in the amount of $520.57 for the cost of a new wheel. However,
claimant has insurance coverage which covers this loss with a deductible
feature in the amount of $500.00. Thus, claimant is limited to a recovery, in
any, in the amount of her insurance deductible. See Sommerville/St ate Farm
Fire and Casualty, 18 Ct. Cl. 110 (1991).
Claimant asserts that respondent had notice of the hole on County Route 50/9
and that it presented a hazardous condition to the traveling public.
It is respondent’s position that this road was a low priority dead-end road and
that it maintained it as best it could under the circumstances. Further,
respondent contends that claimant was aware of the hole and failed to use
reasonable care to avoid it.
Larry Williams, Assistant Supervisor for respondent in Doddridge County, is
responsible for the maintenance of the roads in Doddridge County including
County Route 50/9. Mr. Williams testified that County Route 50/9 is a low
priority route with a low volume of traffic and it is a dead-end road. He
testified that it is maintained with tar and chip and is patched occasionally.
He stated that respondent tries to patch low priority roads two or three times
a year, but he is not certain that this road was patched that often. Further,
he testified that the problem with this particular hole is that most vehicles
are forced to drive along the edge of the road where this hole is located in
order to maneuver around the vehicles parked in the road adjacent to the local
residences, and this has contributed to the deterioration of the 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 travelers upon its roads. Adkins
v. 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 establish by a
preponderance of the evidence that respondent had actual or constructive notice
of the defect and a reasonable amount of time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways,
16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that the hole in the road on
County Route 50/9 at the location ofthis incident constituted a hazardous
condition to the traveling public. The evidence also established that the
respondent had at least constructive, if not actual, notice of this condition
and a reasonable amount of time to take corrective action. However, the Court
is also of the opinion that claimant knew about the hole on County Route 50/9
and she could have avoided the defect. She traveled the road twice a day at
least five days a week, and at all other times she was able to avoid striking
the hole with her vehicle. However, on this particular occasion claimant failed
to avoid striking the hole with her vehicle despite the fact there was no
oncoming traffic or an emergency. Thus, the Court is of the opinion that
claimant failed to act as a reasonably prudent driver would act under the
circumstances, and further, that claimant’s negligence in this claim is equal
to or greater than the respondent’s. Therefore, based upon the principle of
comparative negligence no award is granted to the claimant in this claim. See
Bradley v. Appalachian Power Company, 163 W.Va. 332, 256 S.E.2d 879 (1979).
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
W.Va.] REPORTS
STATE COURT OF CLAIMS 139
OPINION ISS UED MARCH 2, 2004
RANDALL W. TOLER and DONNA M. TOLER
VS.
DI VISION OF HIGHWAYS
(CC-03-0 17)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimants brought this action for damage to their 1999 Lincoln Continental
which occurred when claimant Donna Toler was driving west on Route 99 in
Raleigh County, and the vehicle struck rocks in the roadway. Respondent is
responsible for the maintenance of Route 99 in Raleigh County. The Court is of
the opinion to deny this claim for the reasons set forth herein below.
On January 3, 2003, claimants were proceeding from a hospital in Beckley to
their home in Cyclone, Wyoming County. It was just after midnight and it was
foggy. it had been raining with mixed snow. They were traveling on Route 99 in
the area ofBolt Mountain with claimant Donna Toler driving the vehicle and
claimant Randall Toler in the right front passenger seat. As claimant Donna
Toler proceeded at twenty to twenty- five miles per hour, she drove into a
curve from a straight stretch of the road. She testified that she suddenly felt
the vehicle scraping and being lifted up, and she realized that the vehicle had
passed over rocks in the roadway. She had not seen the rocks prior to driving
over them. Claimants had to stop to add fluids to their vehicle and they then
drove to their destination in Wyoming County. Claimant Donna Toler testified
that she had seen rocks both in the road and on the berm at this area of Route
99 on previous occasions but she had been able to avoid driving over the rocks.
Claimants’ vehicle sustained damage to the fuel pump, fuel hose, and
connections which cost $980.23 to repair. Claimants carry insurance coverage
with a deductible of $250.00 and claimants are limited to a recovery of the
amount of the deductible. Claimants also incurred an expense of $157.66 for
renting another vehicle for four days while their vehicle was repaired.
Johnny Bass, a foreman for respondent in Raleigh County, explained that Route
99 is a two- lane road which proceeds over Bolt Mountain. Respondent has
“Falling Rock” signs at various locations on this road because it is known for
having rocks fall from the hillsides. Some sections of the road have hillsides
along both sides of the road and other areas have a hillside on one side only.
The berm varies from five feet to twelve feet in width on Route 99 in Raleigh
County. Respondent has not taken any precautions to prevent rock falls other
than cleaning the rocks from the roadway after rock falls occur.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 46
S.E.2d 811 (W.Va. 1947). To hold respondent liable, claimant must establish by
a preponderance of the evidence that respondent had actual or constructive
notice of the road defect at issue and a reasonable amount of time to take
corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt
v. Dept. ofHighways, 16 Ct. Cl. 8(1985). In rock fall claims, this Court
has held that the unexplained falling of a rock onto a highway without a
positive showing that respondent knew or should have known of a dangerous
140 REPORTS STATE
COURT OF CLAIMS [W.Va.
condition posing injury to person or property is insufficient to justify an
award.
Co burg v. Dept. of Highways, 16 Ct. Cl. 68 (1985); Hammond v. Dept. of Highwa,vs, 11
Ct 24
In the present claim, claimants have not established by a preponderance of the
evidence that respondent failed to take adequate measures to protect the safety
of the traveling public on Route 99 in Raleigh County. Respondent has placed
“Falling Rock” warning signs to warn the traveling public of the potential for
rock falls at this location and respondent reacts as soon as it receives notice
that rocks have fallen into the road.
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 APRIL 14, 2004
HOWARD COPLEY, as Administrator of the Estate
of Teresa Copley, Deceased, HOWARD COPLEY,
individually, CURTIS H. COPLEY
VS.
DIVISION OF HIGHWAYS
(CC-01-189)
David Lycan and D. Jeffrey Ezra, Attorneys at Law, for claimant.
Andrew Tarr, 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 May 18, 1999, Curtis H. Copley, who is the son of Howard Copley and
Teresa Copley, was traveling northbound on U.S. Route 52 near the town of Glen
Hayes, Wayne County. Teresa Copley was a passenger in the vehicle being driven
by Curtis H. Copley.
2. At or near Glen Hayes, Wayne County, the vehicle driven by Curtis H. Copley
hydroplaned on U.S. Route 52 as a result of rainwater pooling in substantial
ruts or channels in the road and collided with a Head Start bus being driven in
the opposite direction.
3. The collision resulted in the death of Teresa Copley and minor injuries to
Curtis H. Copley.
4. Respondent was responsible for the maintenance of U.S. Route 52 in Wayne
County on the date of this incident, and, further, respondent admits that it
failed to maintain Route 52 in proper condition on this date.
5. Respondent and claimants have agreed to settle this claim for the total sum
of Sixty-Seven Thousand Five Hundred Dollars ($67,500.00).
6. Claimants have requested and respondent agrees that Howard Copley in his
individual capacity is to receive the total sum of Sixty Thousand Seven Hundred
Fifty Dollars ($60,750.00).
7. Claimants have requested and respondent agrees that Curtis H. Copley, who
W.Va.J REPORTS
STATE COURT OF CLAIMS 141
is now an adult and no longer under the guardianship of Howard Copley, is to
receive the total sum of Six Thousand Seven Hundred Fifty Dollars ($6,750.00).
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 52 in Wayiie County on the date of
this incident; that the negligence of respondent was the proximate cause of the
damages sustained to the claimants; 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 $60,750.00 to Howard Copley and $6,750.00 to Curtis H. Copley for a
total award of $67,500.00.
Award to Howard Copley: $60,750.00.
Award to Curtis H. Copley: $6,750.00.
OPINION ISS UED APRIL 14. 2004
WENDELL K. ASH
VS.
DIVISION OF CORRECTIONS
(CC03-4 16)
Claimant appeared pro se.
Charles P. Houdyschell, Jr., Assistant
Attorney General, for respondent.
PER CURIAM:
Claimant, an inmate at Mount Olive Correctional Complex, brought this action to
recover the cost of a Christmas Food Package alleged to have been sent to him
from a company known as Securepac during December, January or February 2003. At
that time, he was placed in the segregation unit of Mt. Olive where he was not
permitted to receive such an item. Claimant alleges that something happened to
the package and that policies of Mount Olive Correctional Complex were not
followed. He now makes a claim in the amount of $74.20 for the package.
This claim was submitted to the Court upon claimant’s Motion for Summary
Judgment, respondent’s Response to Motion for Summary Judgment of the Claimant
and Respondent’s Motion for Summary Judgment, and claimant’s Clarification as
agreed to by the parties on October 30, 2003, at a video teleconference.
Claimant contends that he was sent a Christmas Food Package from the company
Securepac sometime in December, January or February 2003. Claimant at that time
was being held in a segregation unit at Mount Olive Correctional Complex. While
in segregation, inmates may not receive such packages pursuant to the policies
of Mt. Olive Correctional Complex. Claimant alleges that he was not provided
the proper form (a package refusal form) to complete to return the package to
the address of his choice.
Respondent contends that the package was either not received by Mount Olive
Correctional Complex or that it was returned to Securepac, and further, that a
refund was received by the person sending the package to claimant. This
assertion is supported by respondent’s Exhibit B attached to its Answer which
is a letter from Securepak stating that it was making a full refund to the
sender of the food package, Luella Glover.
142 REPORTS STATE
COURT OF CLAIMS [W.Va.
According to the letter, it was assumed that the package had been lost in
transit to Mt. Olive Correctional Complex. Claimant was unable to deny or
confirm that a refund had been received by the person who sent him the package.
In this claim, the Court is of the opinion that claimant has not established
that respondent acted in a wrongful manner. The company Securepac was not sure
if the package which is the subject matter in this claim was mailed or lost,
but it was making a refund to the sender of the package. Therefore, there has
been no loss on the part of the claimant in this claim. The policies in place
at Mt. Olive Correctional Complex were followed by the facility and claimant
was well aware of the policies. The Court is of the opinion that respondent’s
Motion for Summary Judgment is well taken.
Accordingly, the Court is ofthe opinion to and does grant respondent’s Motion
for Summary Judgment and this claim is hereby dismissed and stricken from the
docket of the Court.
Claim dismissed.
OPINION ISSUED APRIL 14, 2004
CHARLES R. KILMER
VS.
DIVISION OF CORRECTIONS
(CC-03-285)
Claimant appeared pro se.
Charles P. Houdyschell, Jr., Assistant
Attorney General, for respondent.
PER CURIAM:
Claimant brought this action to recover the value of certain personal property
items that he alleges were negligently destroyed by respondent while he was an
inmate at Mt. Olive Correctional Complex. Claimant was serving a term of
confinement in segregation. When he was released to return to the main
population, he noticed several food items had been destroyed. Claimant placed a
value of $32.30 upon the items. The Court is ofthe opinion to deny this claim
based upon the findings set forth herein below.
A hearing by video teleconference was conducted by the Court in this claim on
October 30, 2003, at which time the claimant testified as to the facts and
circumstances giving rise to this claim. Claimant, Charles Kilmer, was in a
regular cell at Mount Olive Correctional Complex until he was placed in
punitive segregation on October 17, 2002. Claimant was released from
segregation on January 15, 2003, to return to the main population at
which time he was given an “inmate property seizure form”. The form was dated
October 18, 2002, and listed the food items that respondent had seized. it also
indicated that the property was to be either mailed out of the facility or it
would be destroyed. Claimant subsequently discovered that the food items were
destroyed. According to claimant, the day he was released from segregation was
the first time that he was given notice that his food items had been seized and
destroyed. Claimant exhausted all administrative remedies in seeking to be
reimbursed for those food items he considers to have been negligently
destroyed. He stated that the food items were still in their regular packages
and that only a few items had been opened. While claimant admits that a loaf of
bread and a cherry pie might have spoiled, he stated that all other
W.Va.} REPORTS
STATE COURT OF CLAIMS 143
items would not have spoiled within the ninety days he spent in segregation.
Claimant testified that he was never given the opportunity to mail the food
items out of the facility which he would have chosen to do. Further, he
testified that respondent knew or should have known that these food items would
not spoil within the ninety day time period he was in segregation, and should
not have destroyed them. Claimant’s food consisted of various canned, packaged
and boxed items for which he seeks $32.30.
Claimant contends that respondent negligently destroyed his food items while he
was in segregation without giving him notice or an opportunity to mail the
items out of the facility.
Respondent did not present any witnesses in this claim.
Fred Kerby was called by claimant as a witness in this claim. Mr. Kerby is an
Inspector Two for respondent at Mount Olive Correctional Complex. Mr. Kerby
completed the “Food Code Course” training in 1999 through the West Virginia
Department of Health and Human Resources which certified him to inspect food at
respondent’s facilities. He testified that this training was for health and
food standards and compliance with the “Food Code”. Mr. Kirby testified that he
wrote the “Fire Safety and Sanitation inspection Report” pertaining to
claimant’s food items remaining in his cell while claimant was in segregation.
The report was introduced into evidence at the hearing of this matter by the
claimant and states in part that claimant had excessive amounts of food stuff
in his cell, and that since he was sent to segregation for an extended period
of time, the food would either be mailed out or destroyed because it presented
a health hazard. However, Mr. Kerby stated that at the time he wrote the
inspection report he made a mistake when he indicated that the food items could
be mailed out. He testified that regardless of whether or not the food is
sealed it cannot be mailed from the facility. According to Mr. Kirby,
respondent’s policy and operational procedures require it to dispose
of any food that reaches the state shop and to allow inmates to mail food items
out presents a health risk to the recipient. In addition, he testified that the
health code will not permit storage of food at the state shop because its not
adequately equipped to do so which presents a serious health hazard.
In the present claim, the Court is of the opinion that respondent was not
negligent in destroying claimant’s food items. The testimony presented at the
hearing established that respondent’s policy is to destroy food items that are
left in an inmates cell when the inmate is sent to the segregation unit,
referred to as lock-up. Respondent does not store food items for an extended
period of time because it presents a health hazard to the imnates. Thus,
claimant’s food items had to be destroyed when he was sent to lockup. The mere
fact that respondent made a mistake and indicated on a property seizure form
that the items could be destroyed or mailed out does not create a duty upon
respondent to then store the food items. The testimony established that this
was harmless error on the part of an employee who testified as to such at the
hearing. The Court is convinced that respondent acted reasonably and diligently
in carrying out its policy and procedures.
Therefore, in view of the foregoing, the Court is of the opinion to and does
hereby deny this claim.
Claim disallowed.
OPINION ISSUED APRIL 14, 2004
144 REPORTS
STATE COURT OF CLAIMS [W.Va.
KEVIN BOXLEY
VS.
DIViSION OF CORRECTIONS
(CC-02-5 14)
Claimant appeared pro se.
Charles P. Houdyschell. Jr.,
Assistant Attorney General, for respondent.
PER CURIAM:
Claimant brought this action to recover the value of certain personal property
items that he alleges were lost or destroyed by the respondent after he was
transferred from Northern Correctional Facility to Mount Olive Correctional
Complex.
A hearing was conducted by the Court in this claim on October 23, 2003, at
which time the claimant testified as to the facts and circumstances giving rise
to this claim. Claimant testified that he was transferred from Northern
Correctional Facility to Mount Olive Correctional Complex on May 21, 2002. When
he arrived at Mount Olive Correctional Complex only some of his personal
property items were brought with him. He alleges that his watch, assorted
hygiene items and certain arts and crafts items were missing. Claimant followed
the appropriate grievance procedure while he was at Mt. Olive Correctional
Complex in an attempt to obtain various property items remaining at Northern
Correctional Facility. Claimant also testified that he filed a Counselor
Request Form while he was in punitive segregation at Mount Olive Correctional
Complex in an attempt to determine what had happened to his missing personal
property. He received a written reply that a telephone call was made by Ms.
Susie Pierson, Correctional Counselor at Mount Olive, to Northern Correctional
Facility to find out the amount of postage claimant needed to have his property
mailed to him. Claimant received a memorandum (hereinafter referred to as a
memo) from the Mount Olive Correctional Complex regarding an unapproved package
that was sent from Northern Correctional Facility to him dated June 26, 2002.
The memo informed claimant that the package was riot listed on the approved
order form and there was no special package approval on file in the post
office. In addition, the memo informed claimant that the package did not
conform to Operational Procedure 3.10. Claimant introduced the memo into
evidence at the hearing of this matter. At the bottom of the memo, there is a
handwritten note by one of respondent’s employees dated July 2, 2002, which
states that the post office needs a memo to accept the package. In addition,
Susie Pierson, Counselor I at Mount Olive Correctional Complex, testified that
because the post office was not aware the package was coming, it was returned
to Northern Correctional Facility. Claimant testified that there apparently was
no approved package form on file within claimant’s working area to receive this
package which is why the post office needed a memo to accept the package.
Claimant also stated that he believed that the package had been sent to Mount
Olive on more than one occasion and returned to Northern Correctional Facility
without him ever seeing it. Susie Pierson, Counselor I at Mount Olive
Correctional Complex, testified that she did contact someone at the state shop
at Northern Correctional Facility to have claimant’s property weighed to
determine the amount of postage which was $4.33. Claimant submitted a voucher
for the payment of the postage costs.
At the hearing, counsel for respondent showed claimant a green Aqualite wrist
watch with a velcro band to identifSr whether or not it was his missing watch.
However, claimant stated that it was not his watch. Claimant did not present
any evidence to indicate the brand name of his watch or where it was purchased.
Respondent introduced
W.Va.] REPORTS
STATE COURT OF CLAIMS 145
what was purported to be claimant’s G-l grievance form with his signature into
evidence at the hearing. The form was dated June 5, 2002, and listed
numerous items that were not transferred with claimant to Mount Olive
Correctional Complex including a green Aqualite watch with a nylon and velcro
band, one set of coloring pencils, one set of line markers, and several other
food stuff items. However, claimant could not veri1’ that the signature on this
document was his. Claimant seeks an award for the value of his lost watch in
the amount of $30.99, assorted hygiene and cosmetic items in the amount of
$30.00, arts and crafts materials in the amount of$34.00, and postage costs in
the amount of $4.35. Thus, claimant seeks a total award of $100.00.
Claimant asserts that respondent negligently lost or destroyed his personal
property items while they were being mailed from Northern Correctional Facility
to Mount Olive Correctional Complex.
Respondent contends that it did not negligently lose claimant’s personal
property items and that it attempted to return his watch to him at the hearing
of this matter but he refused to accept it.
Kathy Dillon, the Institutional Paralegal at Mount Olive Correctional Complex,
testified that as part of her duties she has access to inmate files and records
including those of the claimant. She had an inmate property form in claimant’s
file that lists where the property came from and the contents of the property.
On this particular form a green Aqualite watch is listed. Further, this
document bears the signature of an inmate in three different places. Asked if
this was his signature claimant stated, “I would say yes, it is my signature in
those three boxes.” However, claimant testified that he did not prepare the
contents of the list on this property form.
Karen Pszczookowski, Associate Warden of Operations at Mount Olive Correctional
Complex since 1998, testified that she became involved in locating and
addressing some alleged missing property from claimant. She testified that she
first got involved in locating Mr. Boxley’s property around June 5, 2002, when
he filed a grievance. She stated that claimant informed her that he was missing
a green Aqualite watch with a nylon velcro band, a set of pencils, one set of
fine line markers and various food items. According to Ms. Pszczookowski,
respondent did locate claimant’s property and sent it to Mount Olive
Correctional Complex where it was received at the post office. However, she
stated that since two items were not accepted by Mount Olive Correctional
Complex, the property was returned to Northern Correctional Facility. She also
testified that claimant was sent a notice advising him that the package was
returned to Northern Correctional Facility on July 18, 2002. In addition, the
supervisor ofthe post office wrote to him informing him that he had fifteen
days to send an address for the property to be forwarded, and if no response,
then the package would be destroyed. She stated that all of the property was
eventually destroyed except for the watch. While she admits that the proper
procedures pertaining to the personal property were not followed when claimant
was moved from Northern Correctional Facility to Mount Olive Correctional
Complex, she testified that it was turned over to her and secured in her office
on August 15, 2002. She testified that she gave the watch to personnel at Mount
Olive Correctional Complex on October 29, 2003, which was the day prior to the
hearing of this claim.
After due consideration of the testimony and evidence in this claim, the Court
has determined that respondent was not negligent in its actions with respect to
care and treatment of claimant’s items ofpersonal property. The procedures
followed were taken to protect his property and claimant was offered an
opportunity to forward the items to an address provided by him. This Court has
held in previous claims that respondent is the bailee for personal property
acquired from inmates and it is responsible for its safety
146 REPORTS STATE
COURT OF CLAIMS [W.Va.
and return to inmates; however, in the instant claim the Court is of the
opinion that respondent acted in a reasonable manner with respect to the
treatment of claimant’s item ofpersonal property during the scenario as
describedby the claimant and by respondent’s employees.
Accordingly, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISS UED APRIL 14, 2004
MICHAEL CORRIVEAU
VS.
DIVISION OF CORRECTIONS
(CC-02-006)
Claimant appeared pro Se.
John Boothroyd, Assistant Attorney
General, for respondent.
PER CURIAM:
Claimant brought this action for breach of an employment contract by respondent
while he was an inmate at St. Mary’s Correctional Center. Claimant seeks an
award for lost wages, back pay, interest and postage costs incurred in pursuing
this claim in the amount of $1,545.80.
A hearing in this claim was conducted by the Court on November 14, 2003, at
which time the claimant testified as to the facts and circumstances giving rise
to this claim. Claimant Michael Corriveau was transferred from Huttonsville
Correctional Center to St. Mary’s Correctional Center on or about May 12, 2000.
On June 14, 2000, claimant signed a “job contract” to work as an inmate law
library clerk. According to the contract, claimant was to be paid $40.00 per
month. His duties included assisting other inmates with legal research and
assisting them with claims in magistrate court. Claimant served in this
position under the initial contract for approximately two and one-half months
until August 28, 2000, at which time respondent renewed the contract with
claimant under the same terms. Claimant testified that he showed up for work
every day and performed his duties during the six month period he worked at the
law library. in late November or early December2000, claimant decided that he
wanted to pursue additional education in the field of paralegal studies so he
ordered various books and materials outside of correctional facilities through
Blackstone School of Law. Claimant testified that he verbally requested
permission from his unit manager, Patrick Mirandi, to order and pay for the
books and materials himself and to have these sent to him at St. Mary’s
Correctional Center. According to claimant, Mr. Mirandi verbally informed him
that he could probably do it if he had his family purchase the books and
materials and then send the same to him at the correctional facility. Claimant
preferred to perform this task himself but it was denied.
After claimant’s verbal request was denied, claimant filed a” grievance form
requesting in writing that he be allowed to order the first part of the
paralegal course material by sending partial payment of $25.00. The total cost
for the first part of the course was $50.00. in addition, claimant asserted in
the G- 1 grievance that he was also being denied his constitutional right to an
education and that he was being discriminated
W.Va.] REPORTS
STATE COURT OF CLAIMS 147
against. Claimant’s unit manager replied to the G-l grievance in writing on
December 5, 2000, which stated that claimant was given an alternative plan of
action by either having a family member purchase the books and materials or by
paying for the full amount of the order which was $50.00. In addition, the unit
manager informed claimant in writing that respondent’s Policy Directives 325.00
and 2.21 both require claimant to obtain administrative authorization for such
a purchase. According to claimant, the response from his unit manager was
confusing and unclear as to the direction given to claimant explaining his
course of approved action. Claimant stated that he was especially confused by
the portion of the response that stated claimant had an alternative course of
action by having a family member purchase the books and materials or by
claimant paying the cost in full. Thus, claimant testified that he interpreted
the response from the unit manager as an approval to go forward with the
alternative plan of having his wife purchase the materials. Claimant testified
that he wanted clarification regarding his grievance response so he wrote to
the warden at St. Mary’s Correctional Center, William Fox, for permission. The
warden denied claimant permission to order the books and materials. However,
claimant testified that prior to corresponding with the warden he had already
asked his wife to order the books and materials and to pay the full amount of
$50.00. A few days later the books and materials were mailed to him at St.
Mary’s Correctional Center on or about December 12, 2000.
On January 9, 2001, claimant testified that he was abruptly terminated from his
job as the law library clerk for ordering the books and materials. As a result,
he was cited for three different violations. He introduced the “violation
reports” into evidence at the hearing of this matter. The first violation
report dated January 16, 2001, stated that claimant violated respondent’s
Disciplinary Rule No. 2.01 for refusing an order of the Warden denying
claimant’s request to enter into a contract with Blackstone Law School. The
second violation report dated January 16, 2001, charged claimant with the
violation of Disciplinary Rule No. 2.21 which was the “misuse of correspondence
regulations.” Claimant violated this rule by writing a letter to Blackstone Law
School acknowledging his receipt of a reduced payment plan card and advising he
would send $50.00 to start the paralegal course. The third violation report,
also dated January 16, 2001, charged claimant with violation of disciplinary
rule No.2.29 which is “the unauthorized entry into a contract” with Blackstone
Law School. At this time, claimant also received a “job termination slip” from
hisjob supervisor which stated that due to his violations, claimant could not
effectively represent other inmates when he had just exhibited the same or
similar conduct as inmates he represents. Claimant was found guilty on all
three charges in Magistrate Court at St. Mary’s Correctional Center. As a
result of this determination, claimant was transferred to Huttonsville
Correctional Center.
Once claimant was returned to Huttonsville Correctional Center he filed four
grievances and followed the administrative grievance procedures seeking a
remedy for the alleged breach of contract by St. Mary’s Correctional Center.
Eventually, claimant received permission to apply for a paralegal course which
he completed in June 2003.
Claimant now seeks $1,360.00 in lost wages, back pay, and projected raises
beginning from the date he was terminated on January 9, 2001, up to the present
date. Claimant also seeks $76.80 in interest which he calculated based upon an
8% interest rate per amium since January 9, 2001. In addition, claimant seeks
$25.00 for postage expenses incurred in filing this claim. Finally, claimant
seeks an award of $84.00 in lost wages as a result of allegedly missing
fourteen hours of work at his current place of employment due to respondent’s
counsel having to reschedule the original hearing of this claim.
148 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claimant contends that he was wrongfully terminated from his job while an
inmate at respondent’s facility and seeks damages for lost wages, back pay,
interest, and postage expenses.
It is respondent’s position that claimant violated numerous operational procedures
at St. Mary’s Correctional Center, and as a proximate result of these
violations, he was terminated from his job in accordance with respondent’s
policies and procedures. Regardless, respondent asserts that claimant was an
“at will” employee subject to termination at anytime.
George Warren Janice served as the magistrate for St. Mary’s Correctional
Center at the time of this incident and he heard claimant’s disciplinary case
and ruled upon it. Mr. Janice testified that he found claimant guilty on all
three charges brought against him by respondent. He made a recommendation that
claimant be transferred to Huttonsville, and that he be assessed thirty days
loss of privileges on each charge, and that all charges were to run
concurrently. Mr. Janice testified that the reason he ordered this punishment
was claimant’s total disregard for the rules at respondent’s facility. He
testified that claimant had been advised that he did not have administration
authorization to contract with a company outside the facility which violated
Policy Directives 325 and 2.21. According to Mr. Janice, respondent has a
clearly defined policy that requires the warden or deputy warden to inform the
inmate in writing whether or not they may purchase material from a source outside
ofthe correctional facility. Mr. Janice stated that the first response from
Warden Fox to claimant dated December 7, 2000, clearly denied claimant the
authorization to enter into the contract with Blackstone Law School. Further,
he stated that the response recommends that he pursue his education through
respondent’s education department. Mr. Janice also testified that the reason
for respondent’s policy ofnot allowing inmates to contract with outside
organizations is that over the years many inmates have bought items and then
not paid for the items which creates legal problems for the respondent. Mr.
Janice also stated that the reason he decided to order claimant back to
Huttonsville was that claimant showed a total disregard and lack of respect for
the system at St. Mary’s Correctional Center, and that St. Mary’s was a new
facility at the time. He also stated that St. Mary’s did not have any area
designated for the purpose of segregating imnates to punish an inmate. Thus,
his only recourse was to send an inmate to another facility as punishment.
Respondent’s Operational Procedure #3.10-1, which was submitted into evidence
at the hearing of this matter, states that “it is the policy of St. Mary’s
Correctional Center to provide for a mechanism which ensures that all eligible
offenders have a meaningful job and/or program opportunities. It is the policy
of St. Mary’s Correctional Center that except for serious job related
disciplinary infractions, rule violations will not interrupt program or work
participation.” Further, Operational Procedure #3.10-1 also states, in part,
that work and program assignments will not be affected by disciplinary
infractions unless “(T)he infraction arose of or is directly related to the
work or program assignment” and “the severity of the infraction warrants
segregation.” Further, Operational Procedure #3.10-1 also states that “any
offender found guilty of a disciplinary violation and confined to segregation
as a result thereof will automatically have his or her job terminated.” If the
supervisor terminates an inmates contract, the reasons for the termination must
be given to the offender in writing, subject to the review of the Work
Assignment Committee. Further, any contract termination may be appealed by the
inmate through the Offender Grievance Procedure.
The issue in this claim is whether or not the respondent breached the job
contract it made with claimant. The Court is of the opinion that based upon the
evidence
W.Va.] REPORTS
STATE COURT OF CLAIMS 149
respondent did not breach the job contract it had with claimant. The contract
at issue is clearly a terminable “at will” contract, which means that
respondent could terminate claimant’s employment at anytime without giving any
reason. Regardless, even if the employment contract was not an “at will”
contract, the Court is of the opinion that respondent followed its Operational
Procedure #3.10-1 pertaining to the inmate work program in terminating claimant
from his job contract. The evidence established that claimant failed to obtain
proper authorization from the warden or deputy warden to purchase materials
from a source outside of the facility, and yet, he deliberately set about
making the purchase. Claimant was subsequently found guilty ofthree violations
relating to this purchase in magistrate court. Further, the evidence
established that this infraction arose from and was related to the claimant’s
work program assignment. Claimant’s “offenderjob termination slip” stated in
part that he could not effectively represent other inmates who had disciplinary
issues similar to his own. In accordance with Operational Procedure #3.10-1,
respondent may take proper disciplinary actions even though it affected
claimant’s work assignment. Respondent followed all the proper procedures in terminating
claimant including providing him with a termination slip with the reasons for
the termination which was reviewed by the work assignment committee, and it
timely responded to claimant’s grievances. Finally, respondent is under no
constitutional obligation to provide inmates with employment whatsoever nor is
respondent obligated to pay inmates a salary for work performed in a prison
facility. Further, claimant is not entitled to a recovery for lost wages, back
pay, interest, postage, and costs associated with having the initial hearing
rescheduled.
Accordingly, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPiNION JSS UED JUNE 10, 2004
KIMBERLY L. ERSKJNE
VS.
DIVISION OF HIGHWAYS
(CC-03-057)
Claimant appearedpro 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 respondent wherein certain facts and circumstances of the
claim were agreed to as follows:
1. On February 17,2003, claimant was traveling across the Amandaville Bridge on
Route 60 in St. Albans, Kanawha County, when her vehicle struck a hole in the
road damaging a tire.
2. Respondent was responsible for the maintenance of the Amandaville bridge on
Route 60 in Kanawha County and respondent failed to maintain properly Route 60
on the date of this incident.
3. As a result ofthis incident, claimant’s vehicle sustained damage in the
amount of $79.45.
150 REPORTS STATE
COURT OF CLAIMS [W.Va.
4. Respondent agrees that the amount of $79.45 for the 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 the Amandaville Bridge on Route 60 in Kanawha
County on the date of this 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 $79.45.
Award of $79.45.
OPINION ISS UED JUNE 10, 2004
KIM HAYNES
VS.
DIVISION OF HIGHWAYS
(CCM3-049)
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 respondent wherein certain facts and circumstances of the
claim were agreed to as follows:
1. On February 17, 2003, claimant was traveling across the Amandaville Bridge
on Route 60 in St. Albans, Kanawha County, when her vehicle struck a hole in
the road damaging two rims and a tire.
2. Respondent was responsible for the maintenance of the Amandaville Bridge on
Route 60 in Kanawha County and respondent failed to maintain properly Route 60
on the date of this incident.
3. As a result of this incident, claimant’s vehicle sustained damage inthe
amount of $1,052.09. However, claimant is limited to the amount of her
insurance deductible feature which is $250.00.
4. Respondent agrees that the amount of $250.00 for the 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 the Amandaville Bridge on Route 60 in Kanawha County on
the date of this 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 $250.00.
Award of $250.00.
W.Va.] REPORTS
STATE COURT OF CLAIMS 151
OPINION ISSUED JUNE 10, 2004
JEFFREY A. NICHOLS
VS.
REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY
(CC-04-026)
Claimant appearedpro Se.
Ronald L. Reece, 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 $307.40 for items of personal property that were entrusted to
respondent’s employees when he was taken to South Central Regional Jail, a
facility of the respondent. At the time of claimant’s release, he discovered
his Seiko watch and cigarette lighter were missing from his storage unit. 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.
The Court has taken the position in prior claims that a bailment situation has
been created if property of an inmate which is taken from that inmate, remains
in the custody of respondent and is not produced for return to the inmate at a
later date.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $307.40.
Award of $307.40.
OPINION ISSUED JUNE 10, 2004
KIRBY DRUSCHEL
VS.
HIGHER EDUCATION POLICY COMMiSSION
(CC-04-130)
Claimant appeared pro Se.
Jendonnae L. Houdyschell, Senior
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, a student at West Virginia University, seeks $255.00 for
personal items damaged by a water leak in his dormitory room in Boreman North.
152 REPORTS STATE COURT OF CLAIMS [W.Va.
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 $255.00.
Award of $255.00.
OPINION ISSUED AUGUST18, 2004
TOMMY C. MOWERY
VS.
DIVISION OF HIGHWAYS
(CC-98-208)
George I. Sponaugle, II, Attorney at Law, for claimant.
Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent.
GRITT, JUDGE:
Claimant brought this action for personal injuries and vehicle damage sustained
when he was traveling south on U.S. Route 220 in Grant County. U.S. Route 220
in Grant County is maintained by respondent. The Court is of the opinion to
disallow this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on June 16, 1996, at
approximately 5:00p.m. On the day in question, the claimant was driving a 1984
Pontiac Fiero as he was traveling south on U.S. Route 220 at a speed of about
forty to forty-five miles per hour. The posted speed limit is fifty-five miles
per hour in this area. Claimant stated that he is very familiar with U.S. Route
220 and he has driven on this stretch of U.S. Route 220 for approximately
twenty-three years. On the day of this incident, claimant had been to a
friend’s house in Petersburg where the two of them worked on claimant’s
automobile. Claimant arrived at his friend’s house between 12:30 - 1:00p.m. Claimant described this day as very hot and
around 4:00 p.m. a thunderstorm passed through the area. He described rainfall
as being more than an average amount and heavy. Claimant left his friend’s
house to return to his home in Upper Tract, Pendleton County. At the time of
the accident he recalls the roads being damp but he believes that it had
stopped raining. He does not recall noticing water at this same area before the
accident. Claimant testified that he was driving about forty-five miles per
hour when he drove over a knoll on U.S. Route 220 and as he proceeded in the
section of highway just beyond the knoll, his vehicle went into an area covered
with water which caused him to lose control of his vehicle. He estimates that
he traveled about thirty (30) to forty (40) feet prior to driving through the
area of U.S. Route 220 covered with water. When his vehicle came onto the
water, it began sliding in the road. He was able to maneuver his vehicle to the
nght side of the road to avoid oncoming traffic. He recalls that the front end
of his vehicle dropped off onto the shoulder and “when the front end hit the
shoulder it got traction and whipped the back end of the car around into the
bank. When the car hit the bank, I felt the impact and my head hit the glass.
At that point I don’t have any recollection of any more of the accident other
than whenever I woke up... .“ The impact
W.Va.] REPORTS
STATE COURT OF CLAIMS 153
of the vehicle with the bank adjacent to the road caused claimant to hit
his head and he lost consciousness. Claimant stated that he remembers first
being aware of the accident when he realized his head was outside of the
vehicle driver’s side window and he was laying on the pavement although he was
still in his seat belt. When he fully regained consciousness, he got out of his
vehicle. Approximately ten minutes later a friend and his girlfriend arrived at
the scene and rendered assistance to him. Claimant realized that he had a
severe cut to his head and he described his back pain as feeling like a “stoved
finger.” He was transported to Grant Memorial Hospital where he was stabilized
and then transported by helicopter to University of Virginia Hospital where he
received stitches to close his head injury and was released from the hospital
the next day.
Approximately two days after the incident described above, claimant retumed to
the scene of the accident where he observed water running down into the travel
lane where his accident had occurred. The water appeared to cover the
southbound lane which was the lane of travel in which the accident had occurred.
He described the road as having a “sway” in it and he was driving in an upgrade
portion on the road at the accident scene. Claimant described the water as
being approximately one inch deep at this location at the time he observed the
water some two days after the accident. Claimant proceeded to take a series of
photographs which depict various points at the scene including a photograph of
the culvert adjacent to this area which appears to be filled with debris. Water
flows through this culvert beneath the road in the approximate area where
claimant’s accident occurred. Claimant described the culvert as being
approximately twelve inches in diameter. Another photograph depicts the ditch
line adjacent to the road. One photograph depicts erosion apparently from the
water flowing across U.S. Route 220 over top of the culvert rather than flowing
through the culvert. Claimant opined that the culvert could not handle the
amount of over flow and the water ran across the road and washed the grass and
vegetation off this area. Claimant also testified that in his opinion there are
two culverts that he believes caused water to flow onto the highway, the
culvert described herein above arid another culvert which is located beneath a
driveway adjacent to the southbound lane of U.S. Route 220. Claimant testified
that there is a blind spot where he could not see the water crossing the road
and it appeared to him as though the road was clear. He described the water on
the road surface on the date of the incident as three or four times as much
water as on the date of his return visit to the scene. He stated that he was
not aware of any water problems in this area of U.S. Route 220 prior to the
date of his accident and there were no signs warning the public of water problems
at this location.
Claimant suffered a back injury causing a compression to an area of the
vertebrae in his back. His disability was calculated to be at forty percent. He
has received physical therapy and rehabilitation therapy, but he still suffers
from pain in that area of his back. He had twenty-two stitches to close his
head wound. He stated that his insurance company declared his vehicle a total
loss for which he did not have insurance coverage; however, he received $700.00
from the insurance company for the vehicle windows which were damaged in the
accident. Claimant testified that his medical bills were paid by his automobile
insurance. Although his vehicle is a 1984 Pontiac Fiero, he placed its value at
$8,000.00 since he had just finished work to recondition it in 1995. The work
to recondition his vehicle took him approximately three years.
A neighbor in the area of the accident scene, Joshua Paul Thome, testified that
he lives on U.S. Route 220 which is commonly referred to as the Franldin Pike.
He testified that he has been driving for three to four years; that he is
familiar with the area where the claimant herein had his accident; and that he
has observed water running down
154 REPORTS
STATE COURT OF CLAIMS [W.Va.
the road occasionally. He explained that when there is a heavy dowiipour water
will run off a driveway adjacent to U.S. Route 220 and rather than flowing
through the culvert, the water will flow over the top of the road and across
the roadway along with dirt and debris. Mr. Thorne also explained that one
cannot see the water until coming right upon it because the driver is
proceeding up a hill to a flat area and then the road surface dips right in
front of his driveway. He stated that this water flows about 50 to75 feet.
There are no warning signs posted for excess water and this condition has
existed for the past three to four years. Mr. Thome stated that he only noticed
this condition after the year
1996.
Claimant contends respondent knew or should have known that there was a drainage
problem on U.S. Route 220 which created a hazardous condition to the traveling
public and that respondent failed to provide proper warning to the traveling
public of a known hazardous condition. It is claimant’s position that
respondent’s failure to respond properly to this hazard constitutes negligence
and that this negligence was the proximate cause of the claimant’s accident
which resulted in physical injuries to him.
Respondent asserts that it did not have adequate notice that there was a
drainage problem on U.S. Route 220 from its culvert or ditch line. Further,
respondent asserts that it did not have knowledge that the driveway at issue in
this claim posed any water problems on U.S. Route 220.
Edward Lee Rohrbaugh, a crew leader for respondent in Grant County, testified
on behalf of respondent. Mr. Rohrbaugh stated that he has been responsible for
maintaining this section of U.S. Route 220 since the early seventies. He
described U.S. Route 220, Franklin Pike, as being a high priority road with double
yellow lines in the middle and/or passing zones and white lines on the edges.
Mr. Rohrbaugh testified that his crew used a backhoe to remove the rocks and
dirt from U.S. Route 220 on the day of the accident. He testified that on the
day of the accident water was coming off a driveway; however, prior to
claimant’s accident his office had not received any notice or complaints about
a problem on that portion of road and the date of the accident is the only time
he recalls ever having a problem at this location. He was not sure how long the
house and driveway have been at this location or if a permit was issued for the
construction ofthis driveway. According to Mr. Rohrbaugh, his office is
responsible for maintaining the ditches along this route and his office had
received no complaints regarding the ditch line needing to be cleaned. He
explained that heavy rains could clog culverts.
Robert Allen Amtower, respondent’s Assistant District Engineer for Maintenance
for District Five in the Eastern Panhandle, testified that he manages and
oversees all of the maintenance activities within the district. Mr. Amtower is
familiar with U.S. Route 220 in Grant County and described the road as being a
two-lane bituminous paved highway. He stated that the average lane width is
about eleven feet. The shoulder widths vary anywhere from two feet to ten feet
depending on the section of roadway at issue. U.S. Route 220 in this particular
area had been resurfaced in 1992. He stated that the culvert which runs
underneath U.S. Route 220 is a fifteen-inch diameter corrugated metal pipe and
he is unsure of when the culvert was last replaced although he could discern
that it has been quite some time ago.
In his testimony Mr. Amtower stated that respondent’s policy for driveway
entrance permits is consistent with W.Va. Code § 17-16-6, which states that no one will have access to any highway right
of way without a permit. He explained that if people have “unpermitted
driveways,” respondent will eventually contact them and inform them that a
permit is needed. With respect to maintenance, it is respondent’s policy that
an
W.Va.] REPORTS
STATE COURT OF CLAIMS 155
applicant or individual who has an entrance upon the highway is responsible for
the construction and maintenance of that particular driveway. Mr. Amtower
stated that the records in his district maintenance office were searched and
there were no complaints found regarding this particular driveway or area on
U.S. Route 220. He testified that although he has not spoken with the property
owner he is aware that the entrance now has a swale across it such that it
should be properly draining. In addition, he explained that his office
maintains a listing of all complaints, particularly with driveways, and
respondent notifies owners of any problems. There was no such record of any
notification of the property owner found in regard to the driveway at issue in
this claim. Mr. An-itower’s office was not able to determine whether this
driveway was permitted; however, he explained that it may have been done under
another name.
Mr. Amtower reviewed claimant’s photograph of what appears to depict the outlet
end of the culvert on U.S. Route 220 and it did not appear to be obstructed. He
also noticed that there was evidence of some overtopping or water overflow in
this particular area. He explained that sometimes during heavy rainfall there
are problems with debris getting into the culverts; however, if the culvert is
not obstructed there should be full flow of the pipe. There are times when
heavy rain produces more water than any culvert can carry.
Mr. Amtower testified that when problems are brought to respondent’s attention
the procedure is to notify the proper people so that the problem can be
resolved. Mr. Amtower stated that although they do not wait for the public to
complain about a problem, they generally rely on the public to report problems
so that corrective action can be taken because they cannot physically be on
every road in every case. He testified that he did not ki-iow of this incident
until sometime in the past year. In addition, he explained that if a particular
problem is believed to involve private properties or issues beyond the scope of
what the individual county can do then the district seeks engineering and
technical assistance which will be provided to correct matters and make the
necessary repairs.
Mr. Amtower examined the photograph which depicts the driveway and concluded
that this design entrance does not look like one which would have been approved
by respondent. However, the driveway may have been properly installed but may
not have been maintained properly. County employees patrol the roads looking
for potential problems; however, respondent does not have the staff to have
employees driving on every highway every day to look for problems. If something
is discovered by one of the employees, such employee is trained to report it to
his or her county supervisor so that it can be corrected. After examining
claimant’s photograph of the ditch line, Mr. Amtower concluded that the ditch
line is adequate at that point in the road. He stated that there appears to be
no water coming onto the roadway from the ditch line. Mr. Amtower used on.e of
the photographs of the ditch line to demonstrate that the ditch line is higher
in this area and that the water may not get to the ditch line. He also
testified that it would take periods of moderate to heavy rainfall to cause any
water problems on the roadway since the driveway culvert located there
apparently was functioning with water flowing through it. The culvert located
beneath the U.S. Route 220 is a fifteen-inch corrugated metal pipe which would
carry the water as long as it was not obstructed. There has been a culvert at
this location since the 1920’s according to his research. He stated that if
respondent’s crews came to the location of the accident on prior occasions to
remove rocks and debris from the roadway and there was water running across the
road then it should have been obvious to them that there was a problem.
However, if there was no water in the area at the time that the crews were
present, then there would not have been
156 REPORTS
STATE COURT OF CLAIMS [W.Va.
any indication to them that there was a problem with the culvert system.
Deputy Lawrence Cornell, the investigating officer for claimant’s accident,
worked for the Grant County Sheriff’s Department in 1996 as a Senior Deputy.
His duties included patrolling, investigation ofacci dents, and completing
reports on accidents within the county. He investigated the accident which
occurred on June 16, 1996, involving the claimant. When he arrived at the
scene, he observed the vehicle on its top in the middle of the highway. He
believes that it was still sprinkling rain at the time of this single car
accident. He explained that when he arrived there was some gravel on the road
and water coming across that was a “little milky.” Claimant was in the
ambulance when the Deputy arrived at the scene. Deputy Cornell measured the
width of the highway at twenty-two feet five inches. The eastern berm was
measured at two feet five inches. The western berm measured at four feet six
inches. The distance from the rear wheel of the vehicle to the edge of the
roadway was four feet three inches and the distance from the wheel to the
western side of the highway was eleven feet six inches.
The Deputy stated that there had been a heavy rain on the day of claimant’s
accident and that it was cloudy. U.S. Route 220 at the scene was marked with
double yellow lines and is on a grade. He described a dirt driveway adjacent to
U.S. Route 220 from the side of the hill on the west side of the roadway and he
stated that in a heavy rain muddy water and gravel comes down from the driveway
and flows across the road. This is not a hidden driveway. He stated that there
are drainage ditches on both sides of the road. He explained that the water
came off of the side of the hill in the west and was traveling at an angle
across the road and the angle would be more to the north than the south. There
are no warning signs to alert the public about water on the road surface. He
estimated that he found claimant’s vehicle to be approximately fifty to sixty
yards at the most from the driveway.
Deputy Cornell concluded that when claimant was traveling south on U.S. Route
220, it was raining and water was running across the road. When claimant’s car
went through the water, it started to hydroplane whereupon claimant lost
control of his vehicle which then struck the embankment on the west side of
U.S. Route 220 and overturned on roadway. Contributing circumstances in the
police report was marked as failure to maintain control because in the Deputy’s
opinion with the amount of rain coming down claimant was going too fast for
these conditions. Although there was no proof of excessive speed, the Deputy
stated that he should have slowed down for the rain. He did not cite the
claimant for any driving offenses. Deputy Cornell also testified that while he
has been with the Grant County Sheriffs Office, he has not investigated any
other accidents before or after this one at this particular location on U.S.
Route 220. He did not know of any complaints or calls from the public
concerning this particular location on U.S. Route 220.
It is a well established principle of law that the State of West Virginia is
neither an insurer nor a guarantor of the safety of motorists on its roads and
highways. Adkins v. Sims, 46 S.E.2d 811 (W.Va.1947). To hold respondent
liable for damages caused by inadequate drainage, claimant must prove by a
preponderance of the evidence that respondent had actual or constructive notice
of the existence of the inadequate drainage system and a reasonable amount of
time to correct it. Ashworth v. Div. of Highways, 19 Ct. Cl. 189 (1993);
Orsburn v. Div. of Highways, 18 Ct. Cl. 125 (1991).
in the present claim, the evidence adduced at the hearing indicates that
respondent had no notice of the condition on U.S. Route 220 in Grant County.
Respondent sent employees to the scene as soon as it received notice of the
situation. The Court, while being sympathetic with the claimant and
understanding the distress
W.Va.] REPORTS
STATE COURT OF CLAIMS 157
caused to claimant in this situation, is of the opinion that respondent
acted reasonably in response to notice of the debris on the roadway and that
respondent was not negligent in its maintenance of the highway.
As to the driveway adjacent to U.S. Route 220 which claimant asserts caused the
excessive water on the roadway surface, there was nothing to establish that
respondent had actual or constructive notice that the driveway caused water
problems on U.S. Route 220. Thus, the Court is of the opinion that respondent
was not negligent in its maintenance of U.S. Route 220 based upon this element
of claimant’s allegations.
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.
The Honorable Benjamin Hays Webb, II, took part in the hearing of this claim,
but he did not participate in the decision or opinion due to his untimely
death.
OPINION ISSUED AUGUST18, 2004
CHARLES DERRINGER
VS.
DIVISION OF HIGHWAYS
(CC-02-387)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for
respondent
PER CURIAM:
Claimant brought this action for damage sustained to his vehicle when he drove
over a bump in a stretch of road that was in the process of being re-paved
along U.S. Route 19 between Oak Hill, Fayette County, and Beckley, Raleigh
County. At this location, U.S. Route 19 is a road maintained by respondent. The
Court is of the opinion. to make an award for the reasons more fully stated
below.
There is an issue as to the date on which this incident occurred. The claim
form that the claimant completed for this claim indicates no date on which this
incident occurred. However, at the hearing, Mr. Derringer testified that he was
unsure ofthe exact date of the incident, but further stated that the incident
giving rise to this claim occurred on a Saturday in August 2002 between 9:30
p.m. and 10:00 p.m. Claimant was traveling on U.S. Route 19 from Oak Hill
toward Beckley in his 1993 Pontiac Grand Am. U.S. Route 19 is a four-lane
highway, but due to repaving it was reduced to having one lane in each
direction. Claimant testified that he was driving around forty-two miles per
hour when he came upon a stretch of road where there were two different levels
of pavement due to one having been ground down to be re-paved. Claimant’s
vehicle struck a bump in the road where the two pavement levels met. He
estimated that there was a three to four inch difference in the pavement
levels. The impact damaged both front tires and rims of his vehicle along with
the struts. The sustained damage was estimated at $491.57.
The respondent did not put forth any witnesses to testify in this matter.
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
158 REPORTS STATE
COURT OF CLAIMS [W.Va.
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). However, in the instant claim
there was on-going construction on U.S. Route 19 and the difference in
elevation of the pavement created a hazard to the public in the area where the
incident herein occurred. The Court is aware that respondent has inspectors at
project sites to oversee the conditions of the roads. There were no signs to
warn the traveling public of the difference in elevation of the roadway and
this failure to warn constitutes negligence on the part of the respondent.
Therefore, the Court concludes that this negligence was the proximate cause of
the damages to claimant’s vehicle.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $491.57.
Award of $491.57.
OPINION ISSUED AUGUST18, 2004
JESSICA S. GRANEY
VS.
DIVISION OF HIGHWAYS
(CC-03-033)
Claimant appearedpro 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 a piece of concrete while she was traveling northbound on
U.S. Route 119 between Davis Creek and Ashton .Place in Kanawha County. U.S.
Route 119 is a road maintained by 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 January 25, 2003, at about
12:45p.m. The claimant, Jessica S. Graney, was traveling northbound on U.S.
Route 119 between Davis Creek and Ashton Place in her 1998 Volvo S70. U.S.
Route 119 is a four lane highway in the area of the incident involved with this
claim. Claimant testified that she was driving between forty and fifty miles
per hour in the left lane, with traffic in front, to the right, and behind her.
Claimant saw something in the middle of the road ahead of her, but due to the
traffic around her had no choice but to proceed. She ran over the object which
she later determined as being a piece of concrete that she estimated to be
about twelve inches long by twelve inches wide by twelve inches high.
Claimant’s vehicle sustained damage to both left side tires and a rim. The
damage sustained totaled
$655.02.
The position of the respondent is that it did not have actual or constructive
notice of the condition on U.S. Route 119 at the site of the claimant’s
accident for the date in question.
Franklin D. Ball, a maintenance supervisor for the respondent, testified that
he first became aware of the situation when he received a phone call from
respondent’s Boone County office at 1:45 p.m. on the afternoon of January 25,
2003. He then
W.Va.J REPORTS
STATE COURT OF CLAIMS 159
proceeded to the site of the incident on U.S. Route 119, where a Courtesy
Patrol truck had already removed the piece of concrete from the highway that
claimant’s vehicle had struck. At this point, Mr. Ball put the piece of
concrete into his truck and returned to his department headquarters to get
cold-mix to patch the hole where the piece of concrete had been dislodged.
Prior to the phone call that Mr. Ball received from the Boone County office,
there had been no notice of the condition in the road at the location 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, 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). The Court is of the opinion that the respondent did not have
actual or constructive notice of any road hazard on U.S. Route 119. Respondent
did not have ample opportunity to make repairs. Thus, the claimant is not
entitled to an award for her losses.
In the instant case, the evidence established that the respondent did not have
actual or constructive notice of a piece of concrete on U.S. Route 119 prior to
the incident in question. Further, the evidence established that when
respondent was notified of the situation, respondent’s employees took
reasonable steps to ensure the safety of U.S. Route 119 in Kanawha County.
Consequently, there is insufficient evidence of negligence upon which to
justify an award.
In view of the foregoing, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPiNION ISSUED AUGUST18, 2004
KATHY MULLINS and FRANK MULUNS
VS.
DiVISION OF HIGHWAYS
(CC-03-066)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent
PER CURTAM:
Claimants brought this action for vehicle damage which occurred as a result of
Kathy Mullins’ vehicle striking a rock while traveling northbound on State
Route 10 in
Logan County. State Route 10 is a road 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 February 15, 2003, at
approximately 5:30 a.m. to 6:00 a.m. On the rainy and foggy moming in question,
claimant Kathy Mullins was traveling northbound on State Route 10 on Lyburn
Mountain in her 1994 Pontiac Grand Am SE.. State Route 10 is a two-lane road
that is marked as a “falling rock” area with a speed limit of fifty-five miles
per hour. Mrs. Mullins was on her way to work the morning of the incident, and
she was driving around twenty-five to thirty miles per hour due to the
conditions. Claimant was proceeding around a curve when a truck coming at her
in the opposite lane caused her to drive over a rock that had
160 REPORTS STATE
COURT OF CLAIMS [W.Va.
fallen into her lane of the road. The rock had fallen from a mountainside
adjacent to the northbound lane in which claimant was driving. Mrs. Mullins
stated that the rock was about ten inches high, forty-eight inches long, and
thirty-six inches wide. After driving onto the rock, claimant was unable to get
her car off of the rock, as it would not go into any gear. Eventually she was
able to put the car into neutral and coast down the road to a gas station.
Claimants’ vehicle sustained damage to the transmission and the oil pan
totaling $1,321.00. Claimants’ insurance deductible was $1,000.00.
The position of the respondent was that it did not have notice of the rocks on
State Route 10. Respondent admitted that the area in question is a rock fall
area and stated that there are “rock fall” signs located on each side of State
Route 10 to warn a driver proceeding up the mountain. On the morning of the
incident herein, Terry Ellis, Transportation Crew chief for respondent in Logan
County, testified that there were many telephone calls to the office as soon as
it opened around 7:30 a.m. due to the heavy rainfall that had taken place the
previous night. Respondent sent crews out to alleviate the problems on their
routes. Mr. Ellis testified that the only call and the only work done on State
Route 10 that morning was for a drainage problem. There was one call about a
rock fall, but it was not for State Route 10. Respondent maintains that there
was no prior notice to respondent of any rocks on State Route 10.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). To hold respondent liable,
claimant must establish by a preponderance of the evidence that respondent had
actual or constructive notice of the road defect at issue and a reasonable
amount of time to take corrective action. Chapman v. Dept. of Highways, 16
Ct. Cl. 103 (1986); Pritt v. Dept. of
Highways, 16 Ct. Cl. 8 (1985). In
rock fall claims, this Court has held that the unexplained falling of a rock
onto a highway without a positive showing that respondent knew or should have
known of a dangerous condition posing injury to person or property is
insufficient to justify an award. Coburn
v. Dept. of Highways, 16 Ct. Cl. 68 (1985).
In the present claim, claimants have
not established sufficient evidence that respondent failed to take adequate
measures to protect the safety of the traveling public on State Route 10 in
Logan County. Respondent has placed “falling rock” warning signs to warn the
traveling public of the potential for rock falls at this location. 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 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 AUGUST18, 2004
KATHY L. GUNNO
VS.
DIVISION OF HIGHWAYS
(CC-03-077)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
W.Va.] REPORTS
STATE COURT OF CLAIMS 161
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 February 17, 2003, claimant was traveling across the Coal River Bridge on
Route 60 in Kanawha County when her vehicle struck a hole in the road.
2. Respondent was responsible for the maintenance ofthe Coal River Bridge on
Route 60 in Kanawha County and respondent failed to maintain properly Route 60
on the date of this incident.
3. As a result ofthis incident, claimant’s vehicle sustained damage in the
amount of $225.33.
4. Respondent requested at the hearing that claimant submit a copy of her
insurance declaration of coverage in order to determine the deductible provided
for collision coverage. This information has not been provided to the Court.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Route 60 in Kanawha County on the date of this
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 has
not been determined since claimant has failed to provide the requested
information.
Accordingly, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED AUGUST18, 2004
BECKY L. PIERSON
VS.
DIVISION OF HIGHWAYS
(CC-03 105)
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 a hole while she was traveling south on W. Va. Route 114,
Kanawha County. W. Va. Route 114 is a road maintained by respondent in Kanawha
County. The Court is of the opinion to award the claim for the reasons more
fully stated below.
The incident giving rise to this claim occurred on February 27, 2003, around
8:00 p.m. Claimant was traveling on W. Va. Route 114 in her 2002 Lexus 1S300.
W. Va. Route 114 is a two lane highway. Claimant testified that she was driving
around forty miles per hour. On the dark and wet night in question, Ms. Pierson
was driving along W. Va. Route 114 when her vehicle struck a large hole in the
road that she had not seen. Claimant’s vehicle sustained damage to the front
passenger side wheel. The damage sustained totaled $532.46. Claimant’s insurance
deductible was $500.00.
The position ofthe respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 114 at the site of the claimant’s
accident for the date in question.
162 REPORTS STATE
COURT OF CLAIMS [W.Va.
David Fisher, Highway Administrator 2 for the respondent in Kanawha County,
testified that he had no knowledge of any potholes on W. Va. Route 114 near the
site of the incident in question here. Mr. Fisher stated that on the date of
this incident there were no records of any phone calls regarding holes along
this stretch of road nor any records of maintenance crews repairing holes on
this stretch of W. Va. Route 114. However, Mr. Fisher stated that this was an
section of road was an area where water accumulates. In such an area, the
integrity of the asphalt could be affected and during periods of freezing and
thawing the roadway could be more apt to being damaged. Mr. Fisher also stated
that based on evidence presented by claimant, it looked as though the hole had
previously been patched with cold mix, which has a tendency to break up in wet
conditions.
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.
ofHighways, 16 Ct. Cl. 103 (1986). The
Court is of the opinion that the respondent did have actual or constructive
notice of any road hazard on W. Va. Route 114. Respondent had ample opportunity
to make repairs. Thus, the claimant is entitled to an award for her losses.
In the instant claim, the evidence established that the respondent did have at
least constructive notice of the hole on W. Va. Route 114 prior to the incident
in question, based upon the evidence of an earlier patch that had been
attempted and the knowledge that this was an area prone to accumulating water.
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.
Accordingly, the Court makes an award to the claimant for the damages to her
vehicle in the sum of $500.00, which is her insurance deductible.
Award of $500.00.
OPINION 155 UED AUGUST18, 2004
CHARLESTON AREA MEDICAL CENTER
VS.
DIVISION OF CORRECTIONS
(CC-03-463)
F. Christian Gall, Jr., Attorney at Law, for claimant.
Charles P. Houdyschell, Jr., Assistant Attorney General, for respondent.
PER CURTAM:
Claimant brought this action for reimbursement for the cost of medical
treatment provided to an inmate in the custody of Mt. Olive Correctional
Complex, a facility of the respondent. The invoice for the services provided to
respondent was not processed for payment in the appropriate fiscal year;
therefore, the claimant has not been paid. This claim came on for hearing
before the Court on January 29, 2004, at which time the parties agreed that the
transcript in the claim of West Virginia University Hospitals, Inc., v.
Division of Corrections, Claim No. CC-03- 190, would be considered by the
Court in the instant claim for the purpose of addressing an issue before this
Court of first impression. Counsel for claimant in the transcribed claim is Dan
Greer. He produced his witnesses,
W.Va.] REPORTS
STATE COURT OF CLAIMS 163
the respondent produced its witnesses, and the parties agreed that a complete
record had been made such that the Court could consider the instant claim in
the place and stead of the aforementioned claim by West Virginia University
Hospitals, Inc.
The respondent State agency denies liability in this claim because it asserts
that Correctional Medical Services (hereinafter referred to as CMS), a medical
management firm under contract with respondent, had paid claimant for the
medical services which are the subject matter of this claim based upon the
national average of the usual and customary charges. Respondent’s position is
that any amount paid for medical services above and beyond the usual and
customary charges should not be an obligation of respondent and should not be
considered a moral obligation of the State. In addition to this position,
respondent asserts that it would have denied this claim as an over expenditure
claim even if the assertion of the usual and customary charges was not at
issue.
Claimant asserts that it provided medical services to an inmate during the 2001
fiscal year for which it was not paid in full. Partial payment was made by CMS;
however, CMS had not negotiated any rates for reimbursement by contract with
the claimant or other similarly situated medical providers. Thus, claimant
alleges that the usual and customary charges standard should not have been an
issue when it provided the medical services which are the subject matter in
this claim, because it did not know that CMS was going to apply the usual and
customary charges principle as a basis for reducing its charges. Since claimant
did not include this aspect of its medical charges in the rate setting
procedure before the West Virginia Health Care Authority3, it contends that it
is being required to subsidize the cost of medical care for inmates.
Felice Anthony Ruggiero, regional manager for the State of West Virginia for
CMS, testified that CMS is a private provider ofmedical care for inmates and
its contract with respondent is for the management of the operations of medical
units in the seven correctional facilities under the auspices ofrespondent. In
fact, CMS is a private provider of medical care for inmates for corrections
departments in many states throughout the United States. As such, it manages
and provides medical care to inmates for the states, and more particularly in
the instant claim, for the respondent herein. He explained that CMS provides
managed medical care, pharmacy services, hiring of medical personnel, and
record keeping. It also provides outside medical care by contracting with
hospital and individual medical providers which agree to treat inmates in the
custody of the respondent. Providers are paid up to a maximum of $5,000.00 per
inmate per illness per year. Payments are made based upon the usual and
customary charges calculated by using fees charged throughout the United
States. The medical provider then submits a bill for the amount over $5,000.00
to respondent for it to reimburse the provider for the amount in excess of
$5,000.00. However, CMS reviews the charges on behalf of the respondent which
are in excess of $5,000.00 to ascertain whether the treatment and the charges
are appropriate for the particular medical treatment provided the patient
inmate. In practice, CMS pays the amount over $5,000.00 that it determines is
within the usual and customary charges and it is reimbursed by respondent. When
a medical provider is not paid the full amount of its charges by CMS, general
procedure has been that
The West Virginia Health Care Authority has the responsibility for
reviewing proposed per visit rates depending upon inpatient or out patient
services for medical facilities throughout West Virginia.
164 REPORTS
STATE COURT OF CLAIMS [W.Va.
respondent will pay the provider the full amount requested for its services
through an invoice submitted to respondent. in the instant claim, the
respondent has taken a different position with respect to the charges by
denying the invoice on the basis that the amount requested is above and beyond
the usual and customary charges.
Respondent’s Director ofAdministration, Nancy Leonoro Swecker, testified that
the claimant herein has charged above the usual and customary charges for the
medical services provided and the State of West Virginia should not have to pay
and satisfy such charges as a moral obligation of the State. She acknowledged
that the claimant medical provider was not aware that it would be held to a
different standard since respondent has never taken this position with respect
to claims filed in the Court of Claims. This would not affect respondent’s
budget in any way but would save the taxpayers in the State since the claims
are paid through the Legislative process by this Court. However, she also
stated that the medical provider herein was not aware prior to the time that it
provided medical services to the inmate that respondent was going to take the
position that the payment would be based upon the usual and customary charges
after the invoice for services was tendered for payment
This Court now has this claim before it as a legal issue which is one of first
impression, i.e., should the respondent be required to pay and satisfy medical
charges alleged to be more than the usual and customary charges for the medical
services rendered? There is the additional issue to be considered in that the
medical provider was not informed that it would be held to the usual and
customary charges prior to rendering the medical services which are the subject
matter of this claim.
The Court, having reviewed the record in this claim, finds that the usual and
customary charges standard is an appropriate standard for determining the
medical costs incurred by respondent for the medical treatment and care of
inmates incarcerated in its facilities. However, the Court finds further that
respondent or any State agency in like position is under a duty to so advise
medical providers in a timely manner prior to the medical services being
rendered by the medical provider for inmate(s) if respondent intends to apply
the usual and customary charges standard.. The Court is of the opinion that
this is an equitable resolution of the present claim. It affords the medical
providers notice of a different standard, i.e., the usual and customary
chargers standard, for determining the appropriate cost for medical treatment
to be charged to respondent and calculated by CMS, and it affords medical
providers the opportunity to include this standard in its rate setting proposal
before the West Virginia Health Care Authority. in the instant claim, the
medical provider did not have the knowledge that a different standard for
medical charges would be applied and any other finding would be inconsistent
with prevailing contract law. The contract for medical services begins with the
acceptance of the inmate as a patient, and it appears to the Court that the
rates at the time are the agreed rates for the cost of medical treatment of the
inmate rather than some arbitrary standard being applied after the fact.
Therefore, the Court has determined that claimant may make a recovery in this
claim.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $89.87.
Award of $89.87.
The Honorable Benjamin Hays Webb, TI, took part in the hearing of this claim
but not in the decision of the claim. The Honorable Robert B. Sayre, Interim
Judge, and the Honorable George F. Fordham, Jr., Interim Judge, reviewed the
transcript and took part in the decision of the claim with the Honorable
Franklin L. Gritt, Jr., Presiding
W.Va.] REPORTS
STATE COURT OF CLAIMS 165
Judge.
OPINION ISSUED AUGUST18, 2004
SARAH WEBMEYER
VS.
HIGHER EDUCATION POLICY COMMISSION
(CC-04-2 13)
Claimant appeared pro Se.
Jendotmae L. Houdyschell, Senior
Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondentts Answer.
Claimant seeks $13.98 for a poster that she had hanging in her dormitory room
at West Virginia University. On her return from Christmas break, claimant
entered her room to find some furniture rearranged and her poster, which had
been hanging on a wall, folded over and in a ball on the floor. Claimant
purchased the poster for $13.98; therefore, claimant seeks $13.98 in damages.
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 $13.98.
Award of$13.98.
OPINION ISSUED AUGUST18, 2004
STEPHANIE P. SPROUSE
VS.
REGIONAL JAIL AND CORRECTiONAL FACILITY AUTHORITY
(CC-04-229)
Claimant appeared pro Se.
Ronald L. Reece, 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 $9.40 for stamped envelopes that had been taken from her by a
correctional officer to be placed in claimant’s personal property bag.
Envelopes were placed in a package and then placed on the desk of the Property
Officer. Said envelopes have not been found; therefore claimant seeks $9.40 for
her loss.
In its Answer, respondent admits the validity of the claim and that the amount
166 REPORTS
STATE COURT OF CLAIMS [W.Va.
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 $9.40.
Award of $9.40.
OPINION ISSUED SEPTEMBER 8, 2004
PAUL V. WILSON and KIM LAREW
VS.
DIVISiON OF HIGHWAYS
(CC-00-432)
Mark L. French, Attorney at Law, for claimants.
Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent.
BAKER, JUDGE:
The claimants brought this claim to recover for damages to their property as
the alleged result of respondent’s negligent design and maintenance of the
drainage system on U.S. Route 119, near Morgantown, Monongalia County. U.S.
Route 119 is a road maintained by respondent in Monongalia County. The Court is
of the opinion to deny this claim for the reasons more fully stated below.
Claimants are the owners of real property adjacent to U.S. Route 119 near
Morgantown. At this location, U.S. Route 119 is a two-lane road that traverses
in a north-south direction. Claimants’ property is located on the west side of
U.S. Route 119 at the bottom edge of a slope from the roadway. Claimants have
owned the property since 1957. In 1997 claimants had a building constructed on
this property to use as rental property. The building was built in front of a
culvert pipe that was beneath U.S. Route 119 which had been there for an
extended period of time. Claimant Kim Larew testified that the culvert pipe had
been in place at the time the property was purchased. She stated that starting
in 2000 there was flooding in the building, apparently from the run-off from
the road which flowed through the culverts under U.S. Route 119. The flooding
caused substantial damage to the building and to the personal property of its
occupant. Ms. Larew testified that the culvert behind the building was old and
deteriorated. In September 2002, respondent replaced the culverts allegedly
responsible for the flooding. The new culvert pipes, while the same size in
diameter as the former culverts, allegedly caused there to be more flooding to
the property. Ms. Larew stated that the new pipe was not deteriorated, and it
was her opinion that more water flowed through the new culvert pipe much easier
and it was dispersed differently. She felt that this caused further problems.
She testified that on several occasions she had different construction projects
performed on the property attempting to alleviate the flooding problem. The
flooding no longer is a problem since one of the construction projects provided
an extension from respondent’s culvert into a catch basin. The water in the
culvert now flows into a pipe beneath the ground thus alleviating the flooding.
Claimants assert that as a result of the flooding which occurred on multiple
occasions, claimants suffered $64,607.03 in damages.
Luther Dempsey, a licensed professional engineer, testified as an expert
witness
W.Va.] REPORTS
STATE COURT OF CLAIMS 167
for the claimants. Mr. Dempsey testified that culvert pipes were placed under
U.S. Route 119 in order to convey water from the upper side of the roadway to
the lower side of the highway with the claimants’ property located on the lower
side. Mr. Dempsey stated that the culverts were placed on either side of the
natural water course, the natural water course being the natural drainage area
where the topography of the land is such that the water collects and drains
naturally. He stated that due to the placement of the culverts, the water
collected and discharged into places where it was not naturally collected and
drained. This discharging of water into areas where it does not naturally
discharge made the flooding possible and made it difficult for claimants to use
the property to its fullest extent. Further, Mr. Dempsey testified that the
respondent’s action of replacing the old culverts with new ones further
exacerbated the problem. The new culverts transported water under the roadway
more efficiently than the old, deteriorated ones. These new culverts, because
they were not deteriorated or obstructed, deposited much more water than
previously had been deposited on the claimants’ property. Mr. Dempsey stated
that this would cause more flooding problems for the claimants. He also made
recommendations to claimants as to how to alleviate the flooding problem. One
of his suggestions was to collect water from the culvert pipes and route it by
means of underground piping away from the improvements on the property. This
suggestion was implemented by claimants, the cost of which is included in the
damages claimed herein.
The position of the respondent is that the claimants failed to provide adequate
drainage when they built their building directly in front of the culvert pipe,
that claimants therefore assumed the risk of water flooding their building, and
that it was not negligent in the design or maintenance of the drainage system
near the claimants’ property adjacent to U.S. Route 119.
Kathy Westbrook, County Highway Admini strator for respondent in Monongalia
County, testified that she had spoken to Ms. Larew regarding flood damage to a
building on Ms. Larew’s property. Ms. Westbrook stated that Ms. Larew described
a culvert pipe under U.S. Route 119 that was deteriorated and damaged, which
was causing flooding in a building that she owned. After this telephone
conversation, respondent sent employees to the area to inspect the culvert
pipe. Ms. Westbrook stated that she was informed that there was water running
through the pipe, but there was some deterioration on the upper end of the pipe
along the shoulder of the road. It was at this time that the decision was made
to replace the pipe. Ms. Westbrook stated that the pipe was replaced on
September 26, 2001. She further stated that at no point after this maintenance
was completed did she receive a complaint from Ms. Larew regarding fUrther
flooding problems.
George Hall, a retired research and geotechnical engineer for the technical
section of the Design Division for respondent, testified as an expert witness
for respondent. Mr. Hall testified that he researched the claimants’ property
in the USGS Topographic map to determine the drainage areas and find the
natural drainage situation. He stated that the building that claimants built on
their property was placed directly in front of a culvert pipe such that it
blocks the flow of water from the culvert that would normally flow through the
natural drainage area. He stated that the construction of the building in its
location blocked the water flowing from the culvert which had flowed into the
natural drainage area prior to the time that the building was constructed. Mr.
Hall testified that the location of the building allowed only a restricted area
for any water flow that came from the culvert, further causing potential
flooding problems. He stated that it is not respondent’s responsibility to
create a sufficient catch basin on private property
168 REPORTS
STATE COURT OF CLAIMS [W.Va.
when the owner of that property constructs a new building directly in front of
a culvert pipe. Mr. Hall testified that by constructing the building directly
below a culvert and failing to provide an adequate means for the water flowing
from the culvert to be dispersed, the claimants in effect created the flooding
problems which they experienced.
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 claimants’ property from foreseeable damage. Rogers vs. Div. of
Highways, 21 Ct. Cl. 97 (1996)
In the instant claim, claimants have failed to establish that respondent
maintained its drainage structures on the west side of U.S. Route 119 in Monongalia
County in a negligent manner. The Court is of the opinion that respondent took
reasonable actions when it replaced the culvert pipe after receiving notice
that the culvert pipe was in a deteriorated condition. The terrain in this area
of U.S. Route 119 places claimants’ property in a low area which is the natural
drainage area. In addition, the Court concludes that there are many factors,
other than the actions taken by respondent, which have brought about the
flooding that caused the damages to claimants’ property. Claimants knowingly
built a building directly in front of the culvert pipe and failed to provide an
adequate catch basin that could have been connected to the culvert pipe at the
time of construction of the building. Consequently, there is insufficient
evidence of negligence on the part of respondent 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.
The Honorable Benjamin Hays Webb, Ii, took part in the hearing of this claim,
but he did not participate in the decision or opinion due to his untimely
death.
OPINION ISSUED OCTOBER 1, 2004
TAMMY LYNN MERCER
VS.
DIVISION OF HIGHWAYS
(CC-04-298)
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 culvert while she was traveling on W. Va. Route 5/4 near
Mannington, Marion County. W. Va. Route 5/4 is a road maintained by respondent
in Marion 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 9, 2004, between 10:30
a.m. and 11:30 a.m. On the clear and sunny morning in question, claimant was
traveling on W. Va. Route 5/4 in her 1994 Jeep Grand Cherokee. W. Va.
Route 5/4 is a two-lane, dirt and gravel road that is just wide enough for two
vehicles in opposite lanes to travel on at the same time. Ms. Mercer was
traveling on W. Va. Route 5/4 to go to her sister’s
W.Va.] REPORTS
STATE COURT OF CLAIMS 169
house on the morning of the incident. She saw her brother-in-law in his vehicle
approaching her in the opposite lane so she drove to her right. She then heard
a noise but was unsure what it was. Her brother-in-law drove alongside her
vehicle to tell her that her tire had burst. Claimant drove her vehicle a
little farther up the road, got out of her vehicle and discovered that she had
damaged both of her vehicle’s tires on the passenger side. The tires were
sliced by a culvert adjacent to the side of the road since the culvert had a
piece of metal sticking up out of it. Claimant’s vehicle sustained damage to
both passenger side tires totaling $160.55.
The position of the respondent was that it did not have notice of the
damaged culvert on W. Va. Route 5/4. George
Steorts, Highway Administrator for respondent in Marion County, testified that
W. Va. Route 5/4 is a low priority road. The road receives maintenance
when an employee of respondent notes a problem or when a citizen reports a
problem. Mr. Steorts stated that respondent had no knowledge of a problem with
this culvert before receiving a telephone call from claimant after her
accident, though there were other telephone calls in regard to this road. He
also stated that the problem with the culvert was fixed within the next day or
so. Mr. Steorts stated that he believed that a snow plow had plowed into the
culvert and tore the metal piece up. Respondent maintains that there was no
prior notice to respondent of problems with the culvert on W. Va. Route 5/4.
It is a well-established principle
that the State is neither an insurer nor a guarantor of the safety of motorists
upon its highways. Adkins
v. Sims, 130 W.Va. 645, 46 S.E.2d 81
(1947). To hold respondent liable, claimant must establish by a preponderance of
the evidence that respondent had actual or constructive notice of the road
defect at issue and a reasonable amount of time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, claimant established that respondent filed to take
adequate measures to protect the safety of the traveling public on W. Va. Route
5/4 near Mannington in Marion County. While W. Va. Route 5/4 is a low priority, dirt and gravel road, respondent is
aware that this is a road used by residents and others proceeding to and from
the homes in the area. Respondent is also aware that this road is narrower than
the average road, which requires drivers to drive onto the edges of the road
when there is oncoming traffic. Due to the type of road that this was and the
time of year in which the accident occurred, the Court is of the opinion that
respondent was negligent in maintaining the culvert at the time of the incident
and is thus liable for the damages which proximately flow from its inadequate
protection of the traveling public in this specific location of W. Va. Route 5/4
near Mannington, Marion County, and further, that respondent is liable for
the damages to claimant’s vehicle 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 make an award to the claimant in
the amount of$160.55.
Award of$l60.55.
OPINIOIV iSSUED OCTOBER 1, 2004
LINNIE M. ANTILL
VS.
DIVISION OF HIGHWAYS
170 REPORTS
STATE COURT OF CLAIMS [W.Va.
(CC-03-1 56)
Claimant appearedpro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her vehicle
struck a patch of ice while she was traveling on County Route 62 in Alkol,
Lincoln County. County Route 62 is a road maintained by respondent in Lincoln
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 around 8:10a.m. on February 25,
2003, a cold and snowy morning. Claimant was traveling on County Route 62
in her
1991 GMC Jimmy. County Route 62 is a narrow, two-lane road where a driver must
drive to the far side of the road in order to let an oncoming vehicle pass at
the same time in the particular area of the incident involved in this claim.
Ms. Antill testified that she knew the roads were going to be icy and snowy and
that crews for respondent had not been out to this road yet when she left her
home that morning. Claimant testified that she was driving down a hill at
around five miles per hour when her vehicle struck an icy patch on the road.
Ms. Antill applied the brakes, but she was unable stop the vehicle as it began to
slide down the hill. Claimant’s vehicle struck another vehicle that was stopped
on the hill. Her vehicle sustained damage totaling $1,663.56. Claimant also was
not able to go to work during the next four days as she did not have a vehicle
so she lost $208.00 in wages.
The position ofthe respondent is that it did not have actual or constructive
notice of the condition on County Route 62 at the site of the claimant’s
accident for the date in question.
Tim Pullen, an assistant maintenance engineer for the respondent in District
Two for Cabell, Lincoln, Logan, Mingo and Wanye Counties, testified that he had
no knowledge of any ice on County Route 62 on the date of claimant’s accident.
Mr. Pullen stated that this is a second priority road which only receives
treatment after all first priority roads have had snow removal and ice control
activities performed on them. He stated that trucks started treating first
priority roads around 6:10a.m. and finished treating these roads around 9:30
a.m. on the day of this 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 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.
in the instant case, the evidence established that the respondent did not have
actual or constructive notice of ice on County Route 62 prior to the incident
in question. Further, claimant testified that she knew respondent had not
treated County Route 62 on the morning of the incident and that she went ahead
and assumed the risk by driving on County Route 62. Consequently, there is no
evidence of negligence upon which to justif’ an award. The Court is well aware
that during periods of snow and ice respondent directs its attention to the
primary routes. It is not able to address all county routes but attempts to
maintain all road hazards when it receives notice from the public. Thus, the
Court will not impose an impossible duty upon respondent during periods when
its attention must be the control of ice and snow on the State’s highways.
Therefore, the Court has
W.Va.j REPORTS
STATE COURT OF CLAIMS 171
determined that claimant may not make a recovery for her loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
OPINION ISSUED OCTOBER 1, 2004
JACQUES L. SALLADE
VS.
DIViSION OF HIGHWAYS
(CC-03- 109)
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 east on W. Va. Route 33,
Putnam County. W. Va. Route 33 is a road maintained by respondent in Putnam
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 February 23, 2003, at around
9:00 p.m. Claimant was traveling home from church on W. Va. Route 33 in his 1995
Honda Accord. W. Va. Route 33 is a two lane highway in the area of the incident
involved with this claim. Claimant testified that he was driving around forty
miles per hour with minimal traffic around him. He was driving up a slight
incline in the road and around a curve when his vehicle struck a large hole in
the road that he had not seen. Claimant’s vehicle sustained damage to both
passenger side tires. The damage sustained totaled $337.76.
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 33 at the site of the claimant’s
accident for the date in question.
Danny Tucker, a transportation crew leader for the respondent in Putnam County,
testified that he had no knowledge of any potholes on W. Va. Route 33 near the
site of the incident in question here. Mr. Tucker stated that on the date of
this incident there were no records of any telephone calls regarding holes
along this stretch of road nor any records of maintenance crews repairing holes
on this stretch of W. Va. Route 33. He also testified that on the date of this
incident there had been a crew out working on snow and ice removal.
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).
The Court is of the opinion that the respondent did not have actual or
constructive notice of any road hazard on W. Va. Route 33. Respondent did not
have ample opportunity to make repairs. Thus, the claimant is not entitled to
an award for his losses.
In the instant case, the evidence established that the respondent did not have
actual or constructive notice of a hole on W. Va. Route 33 prior to the incident
in
172 REPORTS
STATE COURT OF CLAIMS [W.Va.
question. Consequently, there is no evidence of negligence upon which to
justify an award. The Court is well aware that during periods of snow and ice
removal it is not able to direct its attention to maintain all road hazards,
though it does so when it
receives notice from the public. Thus, the Court will not impose an impossible
duty
upon respondent during periods when its attention must be the control of ice
and snow on the State’s highways. Therefore, the Court has determined that
claimant may not
make a recovery for this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
OPiNION ISSUED OCTOBER 1, 2004
LORI M. COLLINS
VS.
DIVISION OF HiGHWAYS
(CC-03-1 02)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 2000
Grand Am GT struck a hole as she was traveling east on 1-64, Kanawha County.
1-64 is a road maintained by respondent. 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 February 23, 2003, between
5:00 p.m and 6:00 p.m. Claimant was traveling eastbound on 1-64 to the South
Charleston/MacCorkie Avenue exit. 1-64 is a four-lane highway with a one lane
exit ramp at the area of the incident involved in this claim. Claimant
testified that she was driving between thirty-five and forty miles per hour
with traffic in front of and behind her. Ms. Collins was exiting the highway
when her vehicle struck a hole in the road that she did not see. Claimant’s
vehicle sustained damage to the front left tire and rim. The damage sustained
totaled $799.24. Claimant’s insurance deductible was $500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on 1-64 at the site of the claimant’s accident for the
date in question.
Stephen Knight, Transportation Crew Supervisor for the respondent in Kanawha
County, testified that he had no knowledge of any potholes on 1-64 on or near
the exit ramp for South Charleston/MacCorkle Avenue. Mr. Knight stated that on
the date of this incident, respondent’s maintenance crews were working at the
site of a mudslide that had occurred on another stretch of 1-64 for which they
were responsible. Respondent had received no notice ofholes in the road along
this portion of 1-64 on the day ofthe incident in question or in the previous
five days.
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,
W.Va.] REPORTS
STATE COURT OF CLAIMS 173
16 Ct. Cl. 103 (1986).
In the instant case, the evidence established that the respondent did not have
actual or constructive notice of a hole on 1-64 on the South
CharlestonlMacCorkle Avenue exit ramp prior to the incident in question.
Consequently, there is insufficient evidence of negligence upon which to
justify an award. Thus, the claimant may not make a recovery for her loss in
this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
OPINION ISSUED OCTOBER 1,2004
WAN1TA L. SOMMERVILLE
VS.
DIVISION OF HIGHWAYS
(CC-04- 140)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for property damage which occurred as a result of
her fence being struck by a boulder adjacent to U.S. Route 19 in Clarksburg,
Harrison County. U.S. Route 19 is a road 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 at approximately 3:00 p.mto
5:00 p.m. on February 6, 2004, a rainy day. U.S. Route 19 is a two-lane road at
the area of claimant’s property. Ms. Sommerville returned home to find a large
boulder lying against the fence in front of her residence. Claimant was not
sure from where the boulder came. Across the street from her house is a grassy
area that slopes up to a wooded area. Claimant’s fence sustained damage
totaling $956.62.
The position of the respondent was that it did not have notice of any rocks or
rock falls on U.S. Route 19. Mr. John Barberio, Highway Administrator for
respondent in Harrison County, testified that he had never received any
complaints of rock falls in this area of U. S. Route 19. He also stated that to
his knowledge there had never been any problems with rock slides in this area.
Mr. Barberio also stated that in a municipality respondent only maintains state
highways from curb to curb. Respondent maintains that there was no prior notice
of any rocks or rock falls near claimant’s residence on U.S. Route 119
immediately prior to the incident in question.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130
W.Va. 645, 46 S.E.2d 81 (1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect at issue and a reasonable amount of time
to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). In rock fall
claims, this Court has held that the unexplained falling of a rock onto a
highway without a positive showing that respondent knew or should have known of
a dangerous condition posing injury to person or property is insufficient
tojustify an award. Coburn v. Dept. of Highways, 16 Ct. Cl. 68 (1985).
174 REPORTS STATE COURT OF CLAIMS [W.Va.
In the present
claim, claimant has not established that respondent failed to take adequate
measures to protect the safety of the traveling public on U.S. Route 19 in
Harrison County. The evidence failed to establish that respondent had actual or
constructive knowledge of the potential for rock falls in this area. There was
no evidence presented to establish where this boulder came from and the Court
will not speculate as to where the boulder came from. 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 OCTOBER 1, 2004
DEBRA SUE DAY
VS.
DIVISION OF HIGHWAYS
(CC-03-209)
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 traveling eastbound on W. Va. Route 34 in
Putnam County. W. Va. Route 34 is a road maintained by respondent in Putnam
County. The Court is of the opinion to award this claim for the reasons more
fully set forth below.
The incident giving rise to this claim occurred on March 15, 2003, at
approximately 9:00 p.m. On the clear evening in question, claimant was
traveling eastbound on W. Va. Route 34 in her 1998 Volvo S90. W. Va. Route 34
is a two-lane road that is under construction to widen the roadway. Ms. Day was
on her way home the evening of the incident, and she was driving around twenty-five
to thirty miles per hour. Claimant was proceeding down the road when her
vehicle struck a hole that she did not see. Claimant’s vehicle sustained damage
to both right side rims and one tire totaling
$1,123.56.
The position of the respondent was that it did not have notice of the hole
on W. Va. Route 34. Respondent admitted that the area in question had been
prone to having holes along it due to on-going construction. Gordon Bowles,
Transportation Crew Chief Supervisor 1 for Respondent in Putnam County,
testified that the construction being done on W. Va. Route 34 was not being
done by respondent, but was being performed by a contractor. Respondent
attempted to patch any holes that its employees saw while traveling in the
construction zones, traffic permitting. Mr. Bowles testified that there were no
telephone calls regarding the hole in question in this claim. Mr. Bowles also
testified that it is normal for a road under construction to be patched often
because a road such as this one, that had been ground down and milled was more
susceptible to holes. Respondent also sent inspectors out to the construction
sites to ensure that the roads were passable for the traveling public.
Respondent maintains that there was no prior notice to respondent of this hole
on W. Va. Route 34.
It is a well-established principle that the State is neither an insurer nor a
W.Va.] REPORTS
STATE COURT OF CLAIMS 175
guarantor of the safety ofmotonsts upon its highways. Adkins v. Sims, 130
W.Va. 645, 46 S.E.2d 81 (1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect at issue and a reasonable amount of time
to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent failed to
protect the traveling public. Respondent maintains inspectors that travel to
construction sites to oversee a contractor’s maintenance of the roadways. In
the instant claim, respondent was aware of the ongoing construction in the
area, and was also aware that the roadway was more apt to have holes due to the
construction and the condition of the road. Thus, the Court finds respondent
negligent and claimant may make a recovery for the damage to her vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does award this claim in the amount
of
$1,123.56.
Award of$ 1,123.56.
OPINION ISSUED OCTOBER 1, 2004
THOMAS A. ADKNS and THOMAS A. ADKINS, II.
VS.
DIVISION OF HIGHWAYS
(CC-03-265)
Claimants 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 respondent wherein certain facts and circumstances of the
claim were agreed to as follows:
1. On May 3, 2003, claimant Thomas A. Adkins, II, was traveling westbound on
1-64, Kanawha County, from Charleston to Cross Lanes, when he came upon a
section of highway that was under construction. At this location, respondent
had milled the asphalt in order to re-pave. The difference in the height of the
roadway caused claimants’ vehicle to sustain damage to all four rims.
Claimants’ vehicle then went over a metal spike sticking out of the road,
puncturing a tire.
2. Respondent was responsible for the maintenance of 1-64 in Kanawha County and
respondent failed to maintain properly 1-64 on the date of this incident.
3. As a result ofthis incident, claimants’ vehicle sustained damage in the
amount of $725.00. Claimants’ vehicle had comprehensive insurance covering the
vehicle at the time of the incident, with a deductible of $250.00.
4. Respondent agrees that the amount of damages as put forth by the claimant in
the amount of their deductible is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of 1-64 in Kanawha County on the date of this
incident; that
176 REPORTS
STATE COURT OF CLAIMS [W.Va.
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
loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $250.00.
Award of $250.00.
OPINION ISSUED OCTOBER 1, 2004
CHERYL WHITT
VS.
DIVISION OF HIGHWAYS
(CC-03-3 15)
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 June 4, 2003, claimant was traveling on Route 2 in Flat Rock, Mason
County, when her vehicle struck a large hole in the road causing damage to a
rim and tire.
2. Respondent was responsible for the maintenance of Route 2 in Flat Rock,
Mason County, and respondent failed to maintain properly Route 2 on the date of
this incident.
3. As a result ofthis incident, claimant’s vehicle sustained damage in the
amount of $220.00.
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 and finds that respondent was
negligent in its maintenance of Route 2 in Flat Rock, Mason County, on the date
of this 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 $220.00.
Award of $220.00.
OPINION ISSUED OCTOBER 1, 2004
RONALD S. MCCOY
VS.
DIVISION OF HIGHWAYS
(CC-03-239)
W.Va.] REPORTS
STATE COURT OF CLAIMS 177
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 drainage grate while he was pulling onto W. Va. Route
10, Logan County. W. Va. Route 10 is a road maintained by respondent in Logan
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 10, 2003, between
10:30 p.m. and 11:00 p.m. Claimant was exiting a Seven/Eleven convenience store
parking lot, driving onto W. Va. Route 10 in his 1999 Pontiac Grand Prix. W.
Va. Route lOis a two lane roadway. Claimant testified that as he was driving
out of the parking lot, his vehicle ran over a drain grate. The grate flipped
up and struck his vehicle on the side and top of the driver side door.
Claimant’s vehicle sustained damage to the bottom, side and top ofthe driver’s
side door. Mr. McCoy estimated that the grate was about five feet from the main
travel portion of the highway. The damage sustained totaled $1,041.81.
Claimant’s insurance deductible was $500.00.
The position of the respondent is that it was not responsible for the drain
just off of W. Va. Route 10 at the site of the claimant’s accident.
Mike Vasarhelyi, Investigator 2 for the respondent in the Claims Section, Legal
Division, testified that inside any city limits, respondent is only responsible
and only maintains the roadway from curb to curb. Mr. Vasarhelyi stated that he
went to the site of claimant’s incident, and that this was not a State
maintained drain and further, it is not within respondent’s area
ofresponsibility. He stated that the State does not maintain any drains similar
to the one that the claimant’s vehicle struck.
Terry Ellis, Transportation Crew Chief for respondent in Logan County, stated
that this drain and the grate covering it were not respondent’s responsibility
to maintain. He testified that in a city, respondent is only responsible for
the travel portion of the road. and that this particular drain grate was not
within the travel portion of the roadway. Mr. Ellis further stated that
respondent does not use the type of grate that was responsible for the damages
to claimant’s vehicle.
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. ofHighways, 16 Ct. Cl. 103 (1986).
The Court is of the opinion that the respondent was not responsible for
maintaining the grating that struck claimant’s vehicle near W. Va. Route
10. Thus, the claimant is not entitled to an award for his losses.
In the instant case, the evidence established that the respondent was not
responsible for a drain grating that was located just off of W. Va. Route 10.
The claimant has failed to establish that respondent is responsible for the
drain. Consequently, there is insufficient evidence of negligence upon which to
justify an award.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
178 REPORTS
STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED OCTOBER 1, 2004
KATHLEEN HOLLETT
VS.
DIVISiON OF HIGHWAYS
(CC-03-303)
Claimant appearedpro 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 encountering a patch of ice while she was traveling on County Route
35, Cabell County. County Route 35 is a road maintained by
respondent in Cabell 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 5,2003, around 8:00
a.m.. Claimant was traveling to work on County Route 35 in her 2000 Hyundai
Sonata. County Route 35 is a two lane road. Claimant testified that she
was driving between twenty-five and thirty miles per hour with no traffic
around her. She was cresting a knoll proceeding through a curve when her
vehicle struck a large patch of ice covering her travel lane. She had not
observed the ice. Upon encountering the ice, Mrs. Hollett lost control of her
vehicle which slid into a yard. She was finally able to apply her brakes but
the application of the brakes caused her vehicle to fishtail, and her vehicle
struck another vehicle parked in the driveway. ft then to ran over a birdbath
and came to a stop. Claimant’s vehicle sustained damages totaling over
$8,000.00. Claimant’s insurance deductible was $500.00. Her insurance also
covered up to $20.00 per day for vehicle rental. Due to the damages to her car,
Mrs. Hollett was required to rent a vehicle for some six weeks while her
vehicle was repaired. She had to pay $224.00 for the rental vehicle that her
insurance did not cover. Mrs. Hollett is requesting an award for her insurance
deductible and the out-of-pocket expenses for the rental vehicle for a total of
$724.00 in damages.
The position ofthe respondent is that it did not have actual or constructive
notice of the condition on County Route 35 at the site of the claimant’s
accident for the date in question.
Mike King, Highway Administrator 2 for the respondent in Cabell County,
testified that he had no knowledge of any ice problems on County Route 35 on
the date of or prior to the date of the incident herein. Mr. King stated that
his office did not receive any telephone calls about the icy condition along
this stretch of road prior to claimant’s accident. He stated that if there was
any notice of an icy condition on the road, crews for the respondent would be
working overnight to remove the ice from the road way. Mr. King opined that
with the amount of ice that was apparent in claimant’s photograph exhibits,
there may have been a water leak at one ofthe residences in the area that
caused an extensive area of ice to form on the road. He stated that it appeared
from the photographs that claimant presented that there were no other wet areas
aside from that particular icy patch on the road, and that this further
suggests that a water pipe break, as
W.Va.] REPORTS
STATE COURT OF CLAIMS 179
opposed to rainfall or melting snow, caused the ice to form. Mr. King also
testified that it appeared from claimant’s photographs that the driveways in
the area were not properly connected to the State right-of-way, as there
appeared to be no drains or pipes beneath the driveway, and that this too could
have contributed to the icy condition on the date of the 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). Tn 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).
The State can neither be required or expected to keep its highways absolutely
free of ice and snow at all times, and the presence of an isolated ice patch on
a highway during winter months, or a water patch in summer is generally
insufficient to charge the State with negligence. Richards v. Division
ofHighways, 19 Ct. Cl. 71(1992); McDonaldv. Dept. ofHighways, 13 Ct.
Cl. 13(1979); Christo v. Dotson, 151 W.Va. 696, 155 S.E.2d 571
(1967). The Court is of the opinion that the respondent did not have actual or
constructive notice of the potential for ice to create a hazardous condition on
County Route 35 at the time of claimant’s accident. Respondent did not have a
reasonable opportunity to make repairs. Thus, the claimant is not entitled to
an award for her losses.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
OPINION iSSUED OCTOBER 1, 2004
NANCY BLAIR
VS.
DIVISION OF HIGHWAYS
(CC-03-286)
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 she was traveling on W. Va. Route 34 in
Putnam County. W. Va. Route 34 is a road maintained by respondent in Putnam
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 April 9, 2003, around 6:50
a.m. Claimant was traveling on W. Va. Route 34 in her 1998 Toyota Corolla. W.
Va. Route 34 is a two lane road that has been under construction for some time
prior to claimant’s incident herein. Claimant testified that she was driving
around thirty-five miles per hour. On the dark and wet morning in question, Ms.
Blair was driving on W. Va. Route 34 on her way to work when her vehicle struck
a large hole in the road that she
180 REPORTS
STATE COURT OF CLAIMS [W.Va.
did not see. Claimant’s vehicle sustained damage to the front passenger side
tire. The damage sustained totaled $75.21.
The position ofthe respondent is that it did not have actual or
constructive notice of the condition on W. Va. Route 34 at the site of the
claimant’s accident for the date in question.
Danny Tucker, foreman for the respondent in Putnam County, testified that he
had no knowledge of any holes on W. Va. Route 34 near the site of the incident
in question here. Mr. Tucker stated that on the date of this incident there
were no records of any telephone calls regarding holes along this stretch of
road or any records of maintenance crews repairing holes on this stretch of W.
Va. Route 114. However, Mr. Tucker stated that this was a section of road that
had been under construction for some time. He said that respondent does
maintain holes in construction areas given the opportunity. Mr. Tucker also
stated that there had been crew out the day before the incident involved herein
patching holes in the area of the accident. He stated that the crew had been
using a cold mix to make temporary patches to any holes that they found along
W. Va. Route 34. Mr. Tucker further stated that a hole could develop overnight
if it had been filled with cold mix previously, as wet weather will wash out
the cold mix.
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. ofl-Iighways, 16 Ct.
Cl. 103 (1986). The Court is of the opinion that the respondent did have actual
or constructive notice of a road hazard on W. Va. Route 34. Thus, the claimant
is entitled to an award for her losses.
Tn the instant claim, the evidence established that the respondent did have at
least constructive notice of the hole on W. Va. Route 34 prior to the incident
in question, based upon the evidence of an earlier patch that had been
attempted and the knowledge that this was a known construction area. The
respondent has the duty to make sure that the contractor is protecting the traveling
public, and if it does not, it is negligent. Therefore, based upon the evidence
established in this case, the Court is of the opinion that respondent was
negligent in its maintenance of this road on the date of claimant’s accident.
Accordingly, the Court makes an award to the claimant for the damages to her
vehicle in the sum of $75.21.
Award of $75.21.
OPINION ISSUED OCTOBER 1, 2004
SUSAN E. EACHES
VS.
DTVTSION OF HIGHWAYS
(CC-03-1 52)
Claimant appeared pro Se.
W.Va.] REPORTS
STATE COURT OF CLAIMS 181
Andrew F. Tan-, Attorney at Law, for respondent.
PER CLJRIAM:
Claimant brought this action for vehicle damage which occurred when her vehicle
struck a hole while she was traveling westbound on 1-64 in Cabell County. 1-64
is a highway 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 at around 5:15 p.m. to
5:30 p.m. on March 13, 2003, a sunny evening. Claimant was traveling westbound
on 1-64 towards Kentucky in her 2000 Cadillac ElDorado. 1-64 is a four-lane
highway with a speed limit of sixty-five miles per hour. The section of 1-64
where this incident took place was on a bridge. Claimant testified that she drove
this section of 1-64 every day. She was on her way home from work the evening
of the incident, and was driving between sixty-two and sixty-five miles per
hour. As Ms. Eaches proceeded over the bridge in the right lane there was
traffic to her left. Claimant testified that she knew there was a hole in the
pavement that she was approaching, but due to the glare of the sun it appeared
as though it had been repaired. By the time she realized that the hole was
still there, she had no choice but to drive over it because ofthe car to her
left and the concrete bridge barrier to her right. Her vehicle struck the hole
and sustained damage to the left front tire and rim totaling
$757.38.
The position of the respondent was that it did not have notice of the hole on
1-64. Charlene Pullen, 1-64 supervisor for Section One in Cabell County,
testified that respondent did not have notice of the hole in question in this
claim. Ms. Pullen testified that there had been problems with this bridge in
the past, but that the problems had been in the left or passing lane. At 5:44
p.m. on the evening of March 13, 2003, Ms. Pullen received a telephone call
regarding numerous complaints about the hole in question here on 1-64. She
responded by sending crews out immediately to block off the lane so that the
defective condition could be repaired as soon as possible. Ms. Pullen testified
that the hole in the bridge was repaired the very next morning. Respondent
maintains that there was no prior notice of any holes in the right lane of this
stretch of 1-64 prior to claimant’s incident.
l.t is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130
W.Va. 645, 46 S.E.2d 81 (1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect at issue and a reasonable amount of time
to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, claimant has not established that respondent failed
to take adequate measures to protect the safety of the traveling public on 1-64
in Cabell County on the date of her accident. Respondent received no notice
prior to claimant’s incident of a hole in the right lane of traffic westbound
on 1-64. 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 findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
182 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claim disallowed.
OPINION ISSUED OCTOBER 1, 2004
ARTHUR W. SANTOWASSO
VS.
DIVISION OF HIGHWAYS
(CC-04-2 17)
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 large hole while he was traveling northbound on W. Va.
Route 20 near Lumberport, Harrison County. W. Va. Route 20 is a road maintained
by respondent in Harrison 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 December 9, 2003, at
approximately 7:00 p.m. On the foggy evening in question, claimant was
traveling northbound on W. Va. Route 20 in his 1996 Lincoln Town Car Cartier.
W. Va. Route 20 is a two-lane road in the area of the incident involved in this
claim. Mr. Santowasso was on his way home from an evening of dinner and
shopping. He was traveling northbound on W. Va. Route 20 and a large truck also
traveling northbound was several car lengths in front of his vehicle. Claimant
was traveling at approximately twenty-five miles per hour when his vehicle
struck a large hole in the road that he did not see. The hole was located just
to the right of the centerline. Claimant’s vehicle sustained damage to both the
front driver’s side tire and rim, totaling $497.63. Claimant’s insurance
deductible was $250.00.
The position of the respondent was that it did not have notice of the condition
on W. Va. Route 20 at the site of the claimant’s accident for the date in
question.
John Barberio, Highway Administrator for respondent in Harrison County,
testified he had no knowledge of any holes on W. Va. Route 20 in the area of
claimant’s accident for the date in question. This road receives maintenance
when an employee of respondent notes a problem or when a citizen reports a
problem. Mr. Barberio stated that respondent had done patching on this stretch
of W. Va. Route 20 on November 7, 2003, when respondent used hot mix, a
permanent patching material, to fill the problem areas. He stated that based
upon weather conditions, it was possible for a hole such as the one that
claimant’s vehicle struck to form again in the winter months. Mr. Barberio
further testified that he was unaware of any complaints regarding holes in this
area of W. Va. Route 20 prior to the date of claimant’s incident.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130
W.Va. 645,
46 S.E.2d 81 (1947). To hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice
of the
W.Va.] REPORTS
STATE COURT OF CLAIMS 183
road defect at issue and a reasonable amount of time to take corrective action.
Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept.
of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent had at
least constructive notice ofthe hole which claimant’s vehicle struck and that
the hole presented a hazard to the traveling public. The size of the hole and
its location in the travel portion of the highway leads the Court to conclude
that respondent had notice of this hazardous condition and further, that it had
an adequate amount of time to take corrective action. Thus, the Court finds
respondent negligent and claimant may make a recovery for the damages to his
vehicle.
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
this claim in the amount of $250.00, which is claimant’s insurance deductible.
Award of $250.00.
OPINION ISSUED OCTOBER 1, 2004
JUDITH A. MCNEMAR
VS.
DIVISION OF HiGHWAYS
(CC-03-557)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her vehicle
struck a hole while she was traveling on W. Va. Route 58 in Bridgeport,
Harrison County. W. Va. Route 58 is a road maintained by respondent in Harrison
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 around 5:00 p.m. on October 17,
2003, a clear afternoon. Claimant was traveling onW. Va. Route 58 in her 2003
Chrysler PT Cruiser. W. Va. Route 58 is a two-lane highway at the area of the
incident involved in this claim. Claimant testified that she was driving in heavy
traffic which was stop-and- go due to an upcoming traffic signal. As Ms.
McNemar drove forward, her vehicle struck a hole that she had not seen because
it was hidden from her view by a vehicle in front of her. Her vehicle struck
the hole sustaining damage to the right front and rear rims and tires.
Claimant’s vehicle sustained damage totaling $913.30. Her insurance deductible
was $500.00
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 58 at the site of the claimant’s
accident for the date in question.
John Barberio, Highway Administrator for the respondent in Harrison County,
testified that this area of W. Va. Route 58 had been paved sometime in
September of
184 REPORTS
STATE COURT OF CLAIMS [W.Va.
2003. He stated that the only way this hole likely could have formed was if
there was a manhole cover there, and when it was paved over, the crews left the
pavement there high. Mr. Barberio stated that the first time he was made aware
of this hole was when a complaint from a private citizen was received stating
that there was a hole near a grate and that the citizen was going to mark it in
some way so that respondent could find it easier. It was at this point that
respondent went out and filled the hole. Respondent maintains that it had no
actual or constructive notice of any holes on W. Va. Route 58 on the date of or
prior to claimant’s incident herein.
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).
In the instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant’s vehicle struck and that the
hole presented a hazard to the traveling public. Photographs in evidence depict
the hole and provide the Court an accurate portrayal of the size and location
of the hole on W. Va. Route 58. The size of the hole and the time of the year
in which claimant’s incident occurred leads the Court to conclude that
respondent had notice of this hazardous condition, and further, respondent had
an adequate amount of time to take corrective action. Thus, the Court finds
respondent negligent and claimant may make a recovery for the damage to her
vehicle.
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
this claim in the amount of $500.00, her insurance deductible.
Award of $500.00.
OPINION ISSUED OCTOBER 1, 2004
JOANN G. STRAIGHT
VS.
DIVISION OF HIGHWAYS
(CC-04-295)
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 tree while she was traveling on W. Va. Route 20 near
Wallace, Harrison County. W. Va. Route 20 is a road 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 June 4,2003, at
approximately 2:00 a.m. On the stormy and foggy morning in question, claimant
was traveling on W.
W.Va.] REPORTS
STATE COURT OF CLAIMS 185
Va. Route 20 in her 1987 Ford Conversion Van with a passenger. W. Va. Route
20 is a two-lane road in the area of the incident involved in this claim. Ms.
Straight was traveling on W. Va. Route 20 to her house on the morning of the
incident. She was driving over a hill when she came upon a tree that she had
not seen until she was upon it. It appeared that the limbs of the tree were
overhanging the road, but as Ms. Straight got closer to it, she realized the
tree was covering the right lane in which she was traveling. She attempted to
drive to the left to go around the tree, but her vehicle struck the tree.
Claimant’s vehicle sustained significant damage to the windshield, roof, and
passenger side totaling $3,068.29. Ms. Straight is asserting a claim in the
amount of $2,200.00 which represents the value of the vehicle at the time of
the incident.
Otis Dennis, a friend of the claimant, returned to the accident scene with the
claimant shortly after the accident, He testified that he observed the tree
hanging over the roadway. He noted that it was a live tree and that it
apparently came from the bank adjacent to the road. The bank is approximately
six to eight feet above the road. He was unable to provide testimony as to
where the trunk of the tree or the stump of the tree had been in the ground.
The position of the respondent was that it did not have notice of the tree on
W. Va. Route 20. John Barberio, Highway Administrator for respondent in
Harrison County, testified that respondent had no knowledge of any tree falling
onto W. Va. Route 20. He stated that there was no notice to respondent and that
respondent did not remove the tree from W. Va. Route 20. Respondent maintains
that there was no prior notice to respondent of the fallen tree on W. Va. Route
20.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130
W.Va. 645, 46 S.E.2d 81 (1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect at issue and a reasonable amount of time
to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
The general rule of this Court with regard to tree fall claims is that if a
tree is dead and poses an apparent risk, then the respondent may be held
liable. However, when a healthy tree falls and causes property damage as a
result of a storm, the Court has held that there is insufficient evidence of
negligence upon which to justify an award. Wiles v. Division of Highways, 22
Ct. Cl. 170 (1998); Gerritsen v. Dept. of Highways, 16 Ct. Cl. 85
(1986).
In the present claim, the evidence established that the respondent did not have
actual or constructive knowledge of a tree on W. Va. Route 20 near Wallace,
Harrison County. The tree was not a dead tree. Had it been, respondent could
have observed its condition and known that it could pose a hazard to the
traveling public. There also was no evidence to establish that the tree fell
from within the State’s right of way. Consequently, there is insufficient
evidence of negligence upon which to justify 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.
186 REPORTS STATE
COURT OF CLAIMS [W.Va.
OPINION ISSUED OCTOBER 1, 2004
MICHAEL J. BLAND
VS.
DIVISION OF HIGHWAYS
(CC-04-065)
Claimant appearedpro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his vehicle
struck several pieces of steel rebar while his father was driving the vehicle
on the Chestmit Street exit ramp from U.S. Route 50 in Harrison County. The
Chestnut Street exit ramp is a road maintained by respondent in Harrison
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 between 7:30 a.m. and 8:00 a.m.
on February 3, 2004, a snowy morning. Claimant’s father, John H. Bland, was
driving claimant’s 1994 Ford Explorer on the Chestnut Street exit from U.S.
Route 50. The exit ramp is a two-lane bridge at the area of the
incident involved in this claim. John H. Bland testified that he was traveling
at approximately twenty-five miles per hour on the exit ramp. As he drove over
a pile of snow, the vehicle struck several pieces of steel rebar which were
protruding approximately fourteen inches out of the concrete bridge deck but
were concealed by the snow. Claimant’s vehicle sustained damage to the four
wheel drive axle and the transmission. The damages were estimated at $1,002.43.
The position ofthe respondent is that it did not have actual or constructive
notice of the condition on the Chestnut Street exit from U.S. Route 50 at the
site of the claimant’s accident for the date in question.
John Barberio, Highway Administrator for the respondent in Harrison County,
testified that he first received notice of the steel rebar protruding from the
Chestnut Street exit between 10:00 a.m. and 10:30 a.m. He further stated that
he immediately called the bridge department, as that department is responsible
for maintenance of the bridge involved herein. Respondent presented no witness
from the bridge department to testify. Respondent maintains that it had no
actual or constructive notice of any rebar protruding from the Chestnut Street
exit from U.S. Route 50.
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 Hi
ghways, 16 Ct. Cl. 103 (1986). The
Court has also previously held respondent liable for negligence related to rebar
protruding from the Chestnut Street exit from U.S. Route 50. See Anderson vs. Div. of Highways, 21 Ct. Cl. 131 (1996).
In the instant case, the Court is of the opinion that respondent had at least
constructive notice of the steel rebar which claimant’s vehicle struck, due to
the fact that
W.Va.] REPORTS
STATE COURT OF CLAIMS 187
several pieces of rebar were sticking out of the concrete about fourteen inches
high, and that the rebar presented a hazard to the traveling public. Thus, the
Court finds respondent negligent and claimant may make a recovery for the
damage to his vehicle.
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
this claim in the amount of $1,002.43.
Award of $1,002.43.
OPINIOIV ISSUED OCTOBER 1, 2004
DAWN M. THOMAS
VS.
DIVISION OF HiGHWAYS
(CC-04-16l)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 1996
Ford Escort struck a hole while she was traveling on W. Va. Route 119/33 in
Morgantown, Monongalia County. W. Va. Route 119/33 is a road maintained by
respondent. 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 between 10:00 a.m. and 10:30
a.m. on September 15, 2003, a rainy day. W. Va. Route 119/33 is a
two-lane highway at the area of the incident involved in this claim. Claimant
testified that she was driving on W. Va. Route 119/33 when she saw the hole.
She stated that she had seen the hole previously but had been able to avoid it
on other occasions. Ms. Thomas was unaware of how deep the hole was because it
was filled with water. Claimant’s vehicle struck the hole sustaining damage to
the right front rim and tire. Ms. Thomas stated that the hole was
four-and-a-half inches deep. Claimant’s vehicle sustained damage totaling
$470.22.
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 119/33 at the site of the claimant’s
accident for the date in question.
William Henderson, a Crew Supervisor for the respondent in Monongalia County,
testified that he had no knowledge of any holes on W. Va. Route 119/33 in
Morgantown for the date in question or the days immediately prior. Mr.
Henderson stated that there were no records ofeither complaints concerning the
condition ofthe road or any maintenance done on this stretch of road for two
weeks prior to claimant’s incident and two weeks after. Respondent maintains
that it had no actual or constructive notice of any holes on W. Va. Route
119/33.
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
188 REPORTS
STATE COURT OF CLAIMS [W.Va.
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).
in the instant case, the Court is of the opinion that respondent had at least
constructive notice ofthe hole which claimant’s vehicle struck and that the
hole presented a hazard to the traveling public. Photographs in evidence depict
the hole and provide the Court an accurate portrayal of the size and location
of the hole on W. Va. Route 119/33. The size of the hole and the time of the
year in which claimant’s incident occurred leads the Court to conclude that
respondent had notice of this hazardous condition and respondent had an
adequate amount of time to take corrective action. Thus, the Court finds
respondent negligent and claimant may make a recovery for the damage to her
vehicle.
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
this claim in the amount of $470.22.
Award of $470.22.
OPiNiON ISSUED OCTOBER 1, 2004
MARGARET YANCHAK and GEORGE YANCHAK
VS.
DIViSION OF HIGHWAYS
(CC-03-506)
Claimants appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their 1991
Honda Accord struck a hole on 1-79 near Fairmont, Marion County. 1-79 is a road
maintained by respondent. The Court is ofthe opinion to make an award in this
claim for the reasons more fully stated below.
The incident giving rise to this claim occurred between 1:30 p.m. and 3:00 p.m.
on September 3, 2003, a clear day. 1-79 is a four-lane highway and Mr. Yanchak
was driving on a bridge in the area where this incident occurred. He testified
that he was proceeding southbound on the interstate at around sixty-five miles
per hour in his right lane or the “slow” lane. He stated that he had not seen
the hole previously. Claimants’ vehicle sustained damage to the right front rim,
tire, and hubcap, totaling $229.06.
The position of the respondent is that it did not have actual or constructive
notice of the condition on 1-79 at the site of the claimant’s accident for the
date in question.
Norman Cunningham, a crew supervisor for the respondent in the 1-79, Section 1,
Goshen Road office, testified that he had no knowledge of the hole on 1-79 near
Fairmont for the date in question or the days immediately prior. Mr. Cunningham
stated that the first notice his office received of a hole on the 1-79 bridge
was on September 4,
W.Va.] REPORTS
STATE COURT OF CLAIMS 189
2003. Respondent received a telephone call from the West Virginia State Police
informing their office of a large hole on 1-79. Crews then went to repair the
hole, only to find that it was a full-depth hole meaning a hole that goes all
the way through the bridge deck. Mr. Cunningham stated that he then contacted
the bridge department, and respondent and the bridge department repaired the
hole that day. He further stated that while the hole was on an interstate
bridge, his office and the bridge department work together to implement bridge
repairs, including patching ofholes. Respondent maintains that it did not have
actual or constructive notice of any holes on 1-79 prior to claimants’
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, 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).
In the instant claim, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimants’ vehicle struck and that the
hole presented a hazard to the traveling public. Respondent described this hole
as a full-depth hole, a hole that goes all the way through the bridge deck. The
size of the hole and the time of the year in which this incident occurred leads
the Court to conclude that respondent had constructive, if not actual, notice
of this hazardous condition and respondent had an adequate amount of time to
take corrective action. Thus, the Court finds respondent negligent and claimant
may make a recovery for the damage to their vehicle.
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 $229.06.
Award of $229.06.
OPINION ISS UED OCTOBER 1, 2004
ROGER AMOS
VS.
DIVISION OF HIGHWAYS
(CC-04- 146)
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 January 6, 2004, claimant was doing preventive maintenance in the
District Four Equipment Shop. He was removing a hydraulic cylinder which was
leaking. The cylinder slipped out of the nylon choker that was being used to
remove it. The
190 REPORTS STATE COURT OF CLAIMS [W.Va.
hydraulic
cylinder fell onto his tool box, damaging the drawers, drawer structure and
wheel.
2. Respondent was responsible for equipment that claimant was using on the date
of this incident.
3. As a result of this incident, claimant’s equipment sustained damage in the
amount of $2,400.00.
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 and finds that respondent was
negligent in its maintenance of the equipment used to remove the hydraulic
cylinder on the date of this incident; that the negligence ofrespondent was the
proximate cause of the damages sustained to claimant’s tool box; 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 $2,400.00.
Award of $2,400.00.
OPII’JION ISSUED OCTOBER 1, 2004
KALA ANN GORBEY
VS.
DIVISION OF HIGHWAYS
(CC-04- 175)
Claimant appeared pro
Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her vehicle
struck a hole while she was traveling on U.S. Route 19 north ofFairmont, Marion
County. U. S. Route 19 is a road maintained by respondent. 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 around 10:00 p.m. on February
8, 2004, a clear evening. Claimant was traveling on U. S. Route 19 in a leased
2004 Chrysler PT Cruiser. U. S. Route 19 is a two-lane highway at the area of
the incident involved in this claim. Claimant testified that she was driving
with the vehicle’s lights on high beam when she saw another vehicle approaching
in the oncoming lane. She stated that when she turned her lights off high beam,
her vehicle struck a hole that she had not seen. Claimant’s leased vehicle
sustained damage to both right side rims and tires. Ms. Gorbey stated that the
hole her rental vehicle struck was about twelve inches in diameter and four to
six inches deep. The leased vehicle sustained damage totaling $731.96.
Claimant’s insurance deductible was $500.00 and it was applicable to the leased
vehicle.
The position of the respondent is that it did not have actual or constructive
notice of the condition on U. S. Route 19 at the site of the claimant’s
accident for the date in
W.Va.] REPORTS
STATE COURT OF CLAIMS 191
question.
Don Steorts, Highway Administrator for the respondent in Marion County,
testified that he had no knowledge of this particular hole on U. S. Route 19
north of Fairmont on the date in question or the days immediately prior
thereto. Mr. Steorts stated that there had been a crew patching a stretch of U.
S. Route 19 in the area of claimant’s accident the day after her accident.
Respondent maintains that it had no actual or constructive notice of the
particular hole on LI. S. Route 19 that claimant’s vehicle struck.
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). ln 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).
In the instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant’s leased vehicle struck and that
the hole presented a hazard to the traveling public. The size of the hole leads
the Court to conclude that respondent had at least constructive notice of this
hazardous condition. Thus, the Court finds respondent negligent and claimant
may make a recovery for the damage to the vehicle which she was driving on the
date of the accident.
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
this claim in the amount of $500.00, her insurance deductible.
Award of $500.00.
OPINION ISSUED OCTOBER 1, 2004
HAROLD WALTERS and LORRAINE WALTERS
VS.
DIVISION OF HIGHWAYS
(CC-02-375)
Claimants appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
vehicle was struck by a tree limb that fell while they were traveling
northbound on County Route 7 in Wayne County. County Route 7 is a road
maintained by respondent in Wayne County. The Court is of the opinion to make
an award in this claim for the reasons more fhlly set forth below.
The incident giving rise to this claim occurred at approximately 10:30 a.m. on
August 10, 2002. On the morning in question, claimants were traveling
northbound on
County Route 7, also known as Buffalo Creek Road, in their 1995 Buick Park
Avenue.
County Route 7 is a two-lane road with a posted speed limit of fifty-five miles
per hour.
Claimant Harold Walters was driving down a slight hill at around thirty to
thirty-five
192 REPORTS
STATE COURT OF CLAIMS [W.Va.
miles per hour when a branch that had been hanging in the canopy of trees above
the roadway fell and struck the claimants’ car. Claimants previously had
observed the branch hanging in the canopy of the tree for about three weeks.
Claimant Lorraine Walters testified that on two occasions prior to the incident
she had made telephone calls to respondent to inform them of the potentially
dangerous condition of the branch which was overhanging the road. Claimants’
vehicle sustained damage to the windshield and body of the car totaling
$2,059.37.
The evidence adduced at hearing established that the respondent was aware of
the branch hanging in the tree. Geoffrey Adkins, storekeeper for respondent in
Wayne County, testified that respondent received two telephone calls about a
downed tree and a branch overhanging the road. Mr. Adkins stated that crews for
respondent made two or three attempts to find the tree and the branch, but that
on none of those occasions were they able to locate the branch.
It is a well established principle of law that the State is neither an insurer
nor a guarantor of the safety of motorists on its roads and highways. Adkins
v. Sims, 46 S.E.2d 811 (W.Va. 1947). To hold respondent liable, claimant
must establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl.
103 (1986); Prittv. Dept. of Highways, 16 Ct. Cl. 8 (1985).
in the present claim, the Court is of the opinion that respondent had constructive,
if not actual, notice of the hazard presented by the tree limb in question and
finds that claimants are entitled to an award for the damages to their vehicle.
The claimants damages totaled $2,059.37. The windshield which needed to be
replaced and inspected came to a total of $212.66. The remaining amount was an
estimate for the damages done to the vehicle. Claimants have since traded the
vehicle and testified that they did not know how much the trade in value was
affected by the damages received from the incident. The Court will not
speculate as to the value of claimants’ vehicle before or after the incident
Accordingly, the Court makes an award to the claimants in the amount of $212.96
for the windshield which had to be replaced.
Award of $212.96.
OPINION ISSUED OCTOBER 1, 2004
STEVE CAMPBELL
VS.
DIVISION OF HIGHWAYS
(CC-04-304)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 1998
W.Va.] REPORTS
STATE COURT OF CLAIMS 193
Honda Civic struck a hole on W.Va. Route 131 near Bridgeport, Harrison County.
W. Va. Route 131 is a road maintained by respondent in Harrison 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 between 8:00 p.m and 8:30 p.m.
on April 13, 2004, a dry evening. W.Va. Route 131 is a two-lane highway at the
area of the incident involved in this claim. Claimant’s son, Jeremy Campbell,
testified that he was driving the claimant’s vehicle on W. Va. Route 131 at
about forty miles per hour with traffic coming towards him when the vehicle
struck two holes. He stated that the holes were both about twenty-two inches
wide and three or four inches deep. Claimant’s vehicle struck the holes
sustaining damage to the right front rim and tire. Claimant’s vehicle sustained
damage totaling $213.02.
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 131 at the site of the claimant’s
accident for the date in question.
John Barbeno, Highway Administrator for the respondent in Harrison County,
testified that he had no knowledge of any holes on W. Va. Route 131 near Bridgeport
for the date in question or the days immediately prior. Mr. Barberio stated
that there had been crews out in February of that year to patch holes along
W.Va. Route 131. He stated that there were no telephone calls in regard to the
holes that claimant’s son hit on the day of or prior to the incident.
Respondent maintains that it had no actual or constructive notice of any holes
on W. Va. Route 131.
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).
in the instant case, the Court is of the opinion that respondent had at least
constructive notice of the holes which claimant’s vehicle struck and that the
holes presented a hazard to the traveling public. Photographs in evidence
depict the holes and provide the Court an accurate portrayal of the size and
location of the holes on W. Va. Route 131. The size of the holes leads the
Court to conclude that respondent had constructive notice of this hazardous
condition and an adequate amount of time to take corrective action. Thus, the
Court finds respondent negligent and claimant may make a recovery for the
damage to his vehicle.
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
this claim in the amount of $213.02.
Award of $213.02.
OPINION ISSUED NOVEMBER 29, 2004
ROBERT K. TOMBLIN and LINDA S. TOMBLJN
VS.
DIViSION OF HIGHWAYS
194 REPORTS
STATE COURT OF CLAIMS [W.Va.
(CC-03-181)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
1999 Toyota Camry struck a metal object lying in the road. The driver, Robert
K.
Tomblin, was traveling westbound on 1-64, under the Route 34 bridge, in Putnam
County.
1-64 in Putnam County is a road 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 January 22, 2003, at
approximately 6:15 p.m.
Mr. Tomblin was driving around sixty-two miles per hour in the rain and was in
the passing lane with a tractor-trailer in front of him and traffic all around.
He was approximately three or four car lengths behind the tractor-trailer,
approaching the Route 34 overpass when he noticed the truck drive over an
object lying in the road. Mr. Tomblin attempted to slow down but he did not
attempt to stop, due to traffic. He testified that the object may have been a
piece of guardrail retainer used on overpasses. Claimants’ vehicle struck the
object, a piece of metal slightly curved with some concrete on the end, and
sustained damage to the underside of the vehicle totaling $4,038.76. Claimants’
insurance deductible was $1,000.00 for which they make this claim and an
additional $76.95 not covered by insurance for a rental vehicle and $300.00 in
lost wages.
The position of the respondent was that it did not have notice of the object on
1-64. Barney Sigman, Foreman for respondent in Putnam County, testified that
there was nothing documented as to any objects in the road near the Route 34
bridge on 1-64 at any time on or around the date of Mr. Tomblin’s incident. Mr.
Sigman testified that the there was no construction on the bridge at that time
of claimant’s accident. He stated that if there had been construction, it would
have been his office’s responsibility to close part of the highway down for any
construction on the side or underneath of a bridge. Respondent maintains that
it had no prior notice of any objects on U.S. Route 119 immediately prior to
the incident in question.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130
W.Va. 645, 46 S.E.2d 81 (1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect at issue and a reasonable amount of time
to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, claimant has not established that respondent failed to
take adequate measures to protect the safety of the traveling public on 1-64 in
Putnam County. There was no evidence presented as to how the object that
claimants’ vehicle struck came to be in the roadway and the Court will not
speculate as to such. 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 findings of fact and conclusions of law stated herein
W.Va.] REPORTS
STATE COURT OF CLAIMS 195
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED NOVEMBER 29, 2004
DAVID GRANT PEVAVAR
VS.
DIVISION OF HIGHWAYS
(CC-04-1 29)
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 1990
Buick Century Limited struck a hole while he was traveling on Route 40/8 in
Wheeling, Ohio County. Route 10/8 is a road maintained by respondent. 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 around 2:30 p.m. on February 6,
2004, a sunny day. Route 40/8 is a two-lane highway at the area of the incident
involved in this claim. Claimant testified that he was driving on Route 40/8
with traffic in both directions when his vehicle struck a hole. He stated that
he could not really see the hole as it was filled with water, and due to this
and all the traffic coming in the opposite direction, he was not able to avoid
the hole. Mr. Pevavar stated that the hole was probably about eight inches deep
and eighteen to twenty inches in circumference. Claimant’s vehicle struck the
hole sustaining damage to the water pump and the right rear turn, totaling
$399.54. Claimant’s insurance deductible was $100.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 40/8 at the site of the claimant’s accident
for the date in question.
Mick Davis, a highway administrator 2 for the respondent in Ohio County,
testified that he had no knowledge of any holes on Route 40/8 in Wheeling for
the date in question. Mr. Davis testified that on two previous occasions,
February 3, 2004, and February 5, 2004, respondent had been out on Route 40/8
patching holes with cold mix. Mr. Davis also stated that crews for respondent
had been out on snow removal and ice control in the days prior to claimant’s
accident. Respondent maintains that it had no actual or constructive notice of
any holes on Route 40/8 on the date of 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 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 Hi ghways, 16 Ct. Cl. 103
(1986).
196 REPORTS STATE
COURT OF CLAIMS [W.Va.
In the instant case, the Court is of the opinion that respondent had at least
constructive notice ofthe hole which claimant’s vehicle struck and that the
hole presented a hazard to the traveling public. The size of the hole and the
fact that respondent had been out twice previously in the same week to patch
holes leads the Court to conclude that respondent had notice of this hazardous
condition and respondent had an adequate amount of time to take corrective
action. Thus, the Court finds respondent negligent and claimant may make a
recovery for the damage to her vehicle.
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
this claim in the amount of $100.00.
Award of $100.00.
OPINION iSSUED NOVEMBER 29, 2004
STEVE KEPLII4GER
VS.
DIVISION OF HIGHWAYS
(CC-04-068)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURTAM:
Claimant brought this action for vehicle damage which occurred when his 1995
Pontiac Grand Am struck a hole while he was traveling on W. Va. Route 2 near
Follansbee, Brooke County. W. Va. Route 2 is a road maintained by respondent.
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 between 6:00 a.m. and 6:30 a.m.
on February 6, 2004, a dreary morning. W. Va. Route 119/33 is normally a
four-lane highway at the area of the .incident involved in this claim, but due
to construction was reduced to a two-lane highway at the time of this incident.
Claimant testified that he was driving on W. Va. Route 2 near the Pittsburgh
Steel Company with traffic in front of him and headed in the opposite direction
when his vehicle struck a hole in the road that he had not seen. Mr. Keplinger
stated that he drives this road every day, but that he had not noticed any hole
this bad the previous morning. He was unaware of how deep the hole was because
he needed to get to work and did not want to walk back to see the hole.
Claimant’s vehicle struck the hole sustaining damage both passenger side tires
totaling
$345.90.
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 2 at the site of the claimant’s
accident for the date in question.
Sheldon Beauty, a county administrator for the respondent in Brooke County,
testified that he had no knowledge of any holes on W. Va. Route 2 near
Follansbee for the date in question or the days immediately prior. Mr. Beauty
stated that this was a
W.Va.j REPORTS
STATE COURT OF CLAIMS 197
construction zone where work was contracted out to a third party. He stated
that the construction had been ongoing for a year and a half. Mr. Beauty
testified that the construction contractor would usually patch holes that
occurred within the construction area, but that crews for respondent would
occasionally go out and also patch some areas. Mr. Beauty also testified that
there was a hold-harmless clause in respondent’s contract with the contractor.
This clause was designed to hold respondent harmless for any and all damages
which might occur in the construction area. Mr. Beauty testified that there
were several telephone calls later on during the same day as claimant’s
accident, but he was not aware of any complaints before claimant’s incident.
Respondent maintains that it had no actual or constructive notice of any holes
on W. Va. Route 2.
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. ofHighways, 16 Ct. Cl.
103 (1986).
In the instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant’s vehicle struck and that the
hole presented a hazard to the traveling public. The testimony that the hole
had not been there the day before and the time of the year in which claimant’s
incident occurred leads the Court to conclude that respondent had notice of
this hazardous condition and respondent had an adequate amount of time to take
corrective action. Further, the Court is well aware that such hold-harmless
clauses are common place in third party construction contracts and that
respondent may seek to be reimbursed for any damages for which it is found
responsible. Thus, the Court finds respondent negligent and claimant may make a
recovery for the damage to his vehicle.
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
this claim in the amount of $345.90.
Award of $345.90.
OPINION ISS UED NOVEMBER 29, 2004
JOHN A. CUSTER
VS.
DIVISION OF HIGHWAYS
(CC-04-320)
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 2001
Ferrari 360 Spider struck a hole while he was traveling on W.Va. Route 34 in
Putnam County. W.Va. Route 34 is a road maintained by respondent. The Court is
of the opinion
198 REPORTS
STATE COURT OF CLAIMS [W.Va.
to make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred around 1:20 p.m. on March 29,
2004, a clear afternoon. W.Va. Route 34 is a two-lane highway at the area ofthe
incident involved in this claim. Claimant testified that Jeannette Davis was
driving his vehicle on W.Va. Route 34 with a tractor trailer in front of their
vehicle. Mr. Custer stated that he saw a hole in the road just before the
vehicle hit it, while Ms. Davis stated that she did not see the hole before the
vehicle struck it. Upon striking the hole, claimant’s vehicle skidded into the
opposite lane of traffic before skidding into an area in the middle of the road
where it came to rest. Mr. Custer testified that the vehicle most likely struck
two holes in the road that were directly in line with the passenger side tires.
He stated that the holes had to be somewhat deep, as the front bumper of his
vehicle scraped the pavement upon striking the hole. Claimant’s vehicle struck
the holes sustaining damage to the front passenger side tire and lower A-arm.
Claimant had to have the vehicle towed back to the dealership in Ohio and also
had to rent a vehicle to drive back to Ohio. Claimant’s damages totaled
$6,274.81. Claimant’s insurance deductible was $5,000.00.
The position ofthe respondent is that it did not have actual or constructive
notice of the condition on W.Va. Route 34 at the site of the claimant’s
accident for the date in question or at any point in the days prior to the
accident. Respondent did not call any witnesses to testify.
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).
In the instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant’s vehicle struck and that the
hole presented a hazard to the traveling public. The size of the holes and the
location of the holes on W.Va. Route 34 leads the Court to conclude that
respondent had notice of this hazardous condition and respondent had an
adequate amount oftime to take corrective action. Thus, the Court finds
respondent negligent and claimant may make a recovery for the damage to her
vehicle.
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
this claim in the amount of $5000.00.
Award of $5,000.00.
OPINION ISSUED NOVEMBER 29, 2004
MARY E. THOMASELLI
VS.
DIVISION OF HIGHWAYS
(CC-04-2 16)
Claimant appeared pro Se.
W.Va.] REPORTS
STATE COURT OF CLAIMS 199
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 1999
Honda Prelude struck a hole while she was traveling on County Route 11 near
Weirton, Hancock County. County Route 11 is a road maintained by respondent.
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 around 10:00p.m. on March31,
2004, a rainy evening. County Route 11 is a two-lane highway at the area of the
incident involved in this claim. Claimant testified that she was driving on
County Route 11 with traffic coming towards her. She stated that she had
noticed the holes a couple of weeks before her accident and had called
respondent to complain about them. Mrs. Thomaselli testified that she knew the
holes in the road ahead of her, but due to the rain she could not see them. She
also stated that due to the traffic and the fire hydrant that was locatedjust
on the other side of the holes, she could not avoid them. Claimant stated that
the holes were probably about eight inches deep and both were fairly wide.
Claimant’s vehicle struck the holes sustaining damage to both passenger side
tires, rims, and bearing assemblies totaling $1,304.26. Claimant’s insurance
deductible was $500.00.
The position ofthe respondent is that it did not have actual or constructive
notice of the condition on County Route 11 at the site of the claimant’s
accident for the date in question or at any point in the days prior to the
accident.
Sam DeCapio, a highway administrator 2 for the respondent in Hancock County,
testified that he had no knowledge of any holes on County Route 11 near Weirton
for the date in question. Mr. DeCapio testified that his office did receive a
telephone call from claimant the day after the incident and that they had sent
a crew out to repair the holes upon receiving that complaint. Respondent
maintains that it had no actual or constructive notice of any holes on County
Route 11 on the date of claimant’s accident or prior to 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, 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).
In the instant case, the Court is of the opinion that respondent had at least
constructive notice ofthe hole which claimant’s vehicle struck and that the
hole presented a hazard to the traveling public. The size of the holes and the
location of the holes on County Route 11 leads the Court to conclude that
respondent had notice of this hazardous condition and respondent had an
adequate amount oftime to take corrective action. Thus, the Court finds
respondent negligent and claimant may make a recovery for the damage to her
vehicle.
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
this claim in the amount of $500.00.
Award of $500.00.
200 REPORTS
STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED NOVEMBER 29, 2004
JEAN L. WRiGHT
VS.
DIVISION OF HIGHWAYS
(CC-04-21 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
her 2000 Kia Sophia striking rocks while she was traveling on State Route 2 in
the Glendale area, also known as “the narrows,” Marshall County. State Route 2
is a road maintained by respondent. 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 between 6:00 p.m and 6:30 p.m.
on February 14, 2004. On the date in question, claimant was traveling
northbound on State Route 2 near Glendale. State Route 2 is a four-lane road
that is marked as a “falling rock” area. Ms. Wright was proceeding along State
Route 2 when the vehicle she was driving struck a rock that had fallen into the
roadway. Claimant’s vehicle sustained damages to the radiator totaling $842.69.
It is respondent’s position that it acted diligently and took reasonable
measures to warn and protect the traveling public from the hazards of rock
falls. There are “rock fall” signs at both the north and south ends of “the
narrows,” the respondent undertakes periodic patrols through the area, and
keeps the area lighted at night. Respondent also maintained that it had no
notice of this particular rock fall prior to claimant’s accident.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its highways. Adkins v. Sims, 46
S.E.2d 811 (W.Va. 1947). In order to hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman v. Dept. of Highways 16 Ct. Cl.
103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent had
constructive notice of rock fall hazards in the area at issue. This area on
State Route 2 referred to as “the narrows” is a section of highway known for
dangerous rock falls which are clearly a hazard to the traveling public.
Even though respondent has flashing warning signs in place and numerous lights
to assist drivers in seeing rock falls, these actions have not proven to be an
adequate remedy to protect the traveling public from the rocks which frequently
fall onto the highway. This Court has previously made awards in “the narrows
cases” numerous times. See Branicky vs. Div. of Highways, 24 Ct. Cl. 273
(2003); Cusick vs. Div. of Highways, 24 Ct. Cl. 216 (2002); Hall vs.
Div. of Highways, 24 Ct. Cl. 212 (2002); Foster vs. Div. of Highways, 23
Ct. Cl. 248(2000); Williams vs. Div. of 1-li ghways, CC-99- 114, (Ct.
Cl. Dec. 6, 1999),
W.Va.] REPORTS
STATE COURT OF CLAIMS 201
available at https:// 129.71 .164.29/court claims/CC-99-114.htm
Hundagen vs. Div. of Highways, CC-98-303 (Ct. Cl. Dec. 6, 1999), available
at https://129.7 1. 164.29/court claims/CC-98-303.htm. Thus, the
Court is ofthe opinionthat respondent is liable for the damages which
proximately flow from its inadequate protection of the traveling public in this
specific location of State Route 2 in Marshall County, and further, that
respondent is liable for the damages to claimant’s vehicle in this claim.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimant in
this claim in the amount of $842.69.
Award of $842.69.
OPINION ISSUED NOVEMBER 29, 2004
RONALD W. OSTROSKY
VS.
DIVJSION OF HIGHWAYS
(CC04-1 06)
Claimant appeared pro se.
Andrew Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the
claim were agreed to as follows:
1. On February 10, 2004, claimant was traveling on W. Va. Route 27 in
Wellsburg, Brooke County, when his vehicle struck a large hole in the road
damaging a tie rod and the right front wheel.
2. Respondent was responsible for the maintenance of W. Va. Route 27 in Brooke
County and respondent failed to maintain properly W. Va. Route 27 on the date
of this incident.
3. As a result of this incident, claimant’s vehicle sustained damages in the
amount of$ 144.29.
4. Respondent agrees that the amount of $144.29 for the 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 W. Va. Route 27 in Brooke County on the date of
this incident; that the negligence of respondent was the proximate cause of the
damages 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
loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of$144.29.
Award of$144.29.
202 REPORTS
STATE COURT OF CLAIMS [W.Va.
OPINION ISSUED NOVEMBER 29, 2004
RUDY ROSN1CK
VS.
DIVISION OF HIGHWAYS
(CC-04-238)
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 2001
Hyundai Sante Fe struck a hole while she was traveling on W. Va. Route 105 in
Weirton, Hancock County. W. Va. Route 105 is a road maintained by respondent.
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 between 9:30 p.m. and 10:00
p.m. on March31, 2004, a rainy evening. W. Va. Route 105 is a two-lane highway
with a turn lane in the middle at the area of the incident involved in this claim.
Mr. Rosnick stated that it was raining out and that he did not see the hole
before his vehicle struck it. Claimant’s vehicle struck the hole sustaining
damage to one passenger side rim and both passenger side tires. Claimant’s
vehicle sustained damage totaling $486.28. Claimant’s insurance deductible was
$500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 105 at the location of the claimant’s
accident for the date in question.
Sam DeCapio, Highway Administrator II for the respondent in Hancock County,
testified that he had no knowledge of any holes on W. Va. Route 105 in Weirton
for the date in question or the days immediately prior. Mr. DeCapio stated that
the first time that his office was made aware of this hole on W. Va. Route 105
was the moming after claimant’s accident when the Weirton Police Department
contacted the office. After receiving the notice from the police, respondent
sent a crew out to patch the hole. Respondent maintains that it had no actual
or constructive notice of any holes on W. Va. Route 105 prior to 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 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).
ln the instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant’s vehicle struck and that the
hole presented a hazard to the traveling public. Photographs in evidence depict
the hole and provide the Court an accurate portrayal of the size and location
of the hole on W. Va. Route 105. The size of the hole and its location in the
travel portion of the highway on a high priority road leads the Court to
conclude that respondent had constructive notice of this hazardous
W.Va.] REPORTS
STATE COURT OF CLAIMS 203
condition and had an adequate amount of time to take corrective action. Thus,
the Court finds respondent negligent and claimant may make a recovery for the
damage to his vehicle.
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
this claim in the amount of $486.28.
Award of $486.28.
OPINION ISSUED NOVEMBER 29, 2004
ROBIN DOTY
VS.
DiVISiON OF HIGHWAYS
(CC-04-l0l)
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
hen 995 Ford Escort wagon striking rocks while her daughter, Ashley Doty
was traveling on State Route 2 in the Glendale area, also known as “the
narrows,” Marshall County. State Route 2 is a road maintained by respondent.
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 20, 2004. On the
date in question, claimant’s daughter, Ashley Doty, was traveling northbound on
State Route 2 around Glendale. State Route 2 is a four-lane road that is marked
as a “falling rock” area. Claimant’s daughter was proceeding along State Route
2 when the vehicle she was driving struck a rock that had fallen into the
roadway. Claimant’s vehicle sustained damages to two tires totaling $110.66.
It is respondent’s position that it acted diligently and took reasonable
measures to warn and protect the traveling public from the hazards of rock
falls. There are “rock fall” signs at both the north and south ends of “the
narrows,” the respondent undertakes periodic patrols through the area, and
keeps the area lighted at night. Respondent also maintained that it had no
notice of this particular rock fall prior to claimant’s accident.
it is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its highways. Adkins v. Sims, 46
S..E.2d 811 (W.Va. 1947). In order to hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect in question and a reasonable amount of
time to take corrective action. Chapman v. Dept. of J-Jighways 16 Ct.
Cl. 103 (1986); Pritt v. Dept. of ffighways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent had
constructive notice of rock fall hazards in the area at issue. This area on
State Route 2 referred to as
204 REPORTS
STATE COURT OF CLAIMS [W.Va.
“the narrows” is a section of highway kiown for dangerous rock falls which are
clearly a hazard to the traveling public.
Even though respondent has flashing warning signs in place and numerous lights
to assist drivers in seeing rock falls, these actions have not proven to be an
adequate remedy to protect the traveling public from the rocks which frequently
fall onto the highway. This Court has previously made awards in “the narrows
cases” numerous times. See Branicky vs. Div. of Highways, 24 Ct. Cl. 273
(2003); C’usick vs. Div. of Highways, 24 Ct. Cl. 216 (2002); Hall vs.
Div. of Highways, 24 Ct. Cl. 212 (2002); Foster vs. Div. of Highways, 23
Ct. Cl. 248 (2000); Williams vs. Div. of Highways, CC-99-l 14, (Ct. CI.
Dec. 6, 1999), available at https://l 29.71.1 64.29/court
claims/CC-99-l l4.htm Hundagen vs. Div. of Highways, CC-98-303 (Ct.
Cl. Dec. 6, 1999), available at httj,://l 29.71.164.29/court
clajms/CC-98-303 .htm. Thus, the Court is ofthe opinion that respondent is
liable for the damages which proximately flow from its inadequate protection of
the traveling public in this specific location of State Route 2 in Marshall
County, and further, that respondent is liable for the damages to claimant’s
vehicle in this claim.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimant in
this claim in the amount of$1 10.66.
Award of $110.66.
OPINION ISSUED NOVEMBER 29, 2004
FLOSSIE GOLDEN
VS.
DIVISION OF HIGHWAYS
(CC-04-228)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her Dodge
Caravan struck a hole while she was traveling on W. Va. Route 105 in Weirton,
Hancock County. W. Va. Route 105 is a road maintained by respondent. 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 around 9:00 p.m. on March 31,
2004, a rainy evening. W. Va. Route 105 is a two-lane highway with a turn lane
in the middle at the area of the incident involved in this claim. Claimant’s
daughter, Jackelyn Golden, was driving her mother’s vehicle on W. Va. Route 105
when her mother, who was in the vehicle with her, suggested that she drive
closer to the right edge of the road in order to avoid a hole in the road. Ms.
Golden was unaware of how large the hole was as it had just started to rain.
Jackelyn Golden stated that she had driven on that road about a week prior to
the incident and that she had noticed several small holes, but not
W.Va.] REPORTS
STATE COURT OF CLAIMS 205
the hole that the vehicle she was driving struck. Claimant’s vehicle struck
the hole sustaining damage to the right front rim and tire. Claimant’s vehicle
sustained damage totaling $421.36. Claimant’s insurance deductible was $100.00.
The position ofthe respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 105 at the site of the claimant’s
accident for the date in question.
Sam DeCapio, a Highway Administrator II for the respondent in Hancock County,
testified that he had no knowledge of any holes on W. Va. Route 105 in Weirton
for the date in question or the days immediately prior. Mr. DeCapio stated that
the first time that his office was made aware of this hole on W. Va. Route 105
was the morning after claimant’s accident when the Weirton Police Department
contacted the office.
After receiving the notice from the police, respondent sent a crew out to patch
the hole. Respondent maintains that it had no actual or constructive notice of
any holes on W. Va. Route 105 prior to 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 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).
In the instant case, the Court is of the opinion that respondent had at least
constructive notice ofthe hole which claimant’s vehicle struck and that the
hole presented a hazard to the traveling public. Photographs in evidence depict
the hole and provide the Court an accurate portrayal ofthe size and location of
the hole on W. Va. Route 105. The size of the hole and its location in the
travel portion of the highway on a high priority road leads the Court to
conclude that respondent had notice of this hazardous condition and had an
adequate amount of time to take corrective action. Thus, the Court finds
respondent negligent and claimant may make a recovery of her insurance
deductible as damages 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 make an award to the claimant in
this claim in the amount of$ 100.00.
Award of$100.00.
OPINION ISSUED NOVEMBER 29, 2004
CHRISTOP1LIER NORMAN and SUSAN NORMAN
VS.
DIVISION OF HIGHWAYS
(CC-04-13 1)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
206
REPORTS STATE COURT OF CLAIMS
[W.Va.
Claimant brought
this action for vehicle damage which occurred when his 2000
Grand Prix GT struck a series of holes while he was traveling on County Route 25
in
Wheeling, Ohio County. County Route 25 is a road maintained by respondent. 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 around 7:30 p.m. on January 29,
2004, a cold evening. County Route 25 is a two-lane highway at the area
of the incident involved in this claim. Claimant was driving his vehicle on
County Route 25 when he came to a curve in the road. There was traffic
traveling in the opposite direction. Mr. Norman saw a series of holes in the
road but could not avoid them because of the traffic in the other lane. Claimant
had driven County Route 25 the previous week but had not noticed the holes at
that time. Mr. Norman stated that one of the holes was about seven inches deep
and about one foot wide. Claimant’s vehicle struck the holes sustaining damage
to the right front rim and tire, totaling $562.93. Claimant’s insurance
deductible was $500.00.
The position ofthe respondent is that it did not have actual or constructive
notice of the condition on County Route 25 at the site of the claimant’s
accident for the date in question.
Mick Davis, Highway Administrator II for the respondent in Ohio County,
testified that he had no knowledge of any holes on County Route 25 in Wheeling
for the date in question or the days immediately prior. Mr. Davis stated that
the first time that his office was made aware of these holes on County Route 25
was around February 11, 2004, when crews for respondent patched that stretch of
road in response to a telephone call. Respondent maintains that it had no
actual or constructive notice of any holes on County Route 25 prior to
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 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).
In the instant case, the Court is of the opinion that respondent had at least
constructive notice ofthe hole which claimant’s vehicle struck and that the
hole presented a hazard to the traveling public. Photographs in evidence depict
the hole and provide the Court an accurate portrayal of the size and location
of the hole on County Route 25. The size of the hole and its location in the
travel portion of the highway leads the Court to conclude that respondent had
constructive notice of this hazardous condition and an adequate amount of time
to take corrective action. Thus, the Court finds respondent negligent and
claimant may make a recovery of his insurance deductible as damages in this
claim.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is ofthe opinion to and does make an award to the claimant in
this claim in the amount of $500.00.
Award of $500.00.
W.Va.] REPORTS
STATE COURT OF CLAIMS 207
OPINION ISSUED NOVEMBER 29, 2004
GREGORY A. JORDAN
VS.
DIVISION OF HIGHWAYS
(CC-03-296)
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 April 15, 2003, claimant was traveling on Interstate 64/77 in Charleston,
Kanawha County, on the Elk River Bridge when his vehicle struck a loose steel
joint that damaged the left rear tire on his 2001 Ford F-ISO.
2. Respondent was responsible for the maintenance of Interstate 64/77 in
Kanawha County and respondent failed to maintain properly Interstate 64/77 on
the date of this incident.
3. As a result ofthis incident, claimant’s vehicle sustained damage in the
amount of $153.70.
4. Respondent agrees that the amount of $153.70 for the damages as put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Interstate 64/77 in Kanawha County on the date
of this incident; that the negligence of respondent was the proximate cause of
the damages sustained to claimant’s vehicle; and that the amount of the damages
agreed to by the parties is fair and reasonable. Thus, claimant may make a
recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of$ 153.70.
Award of$153.70.
OPINION ISSUED NOVEMBER 29, 2004
JOSEPH G. MANONI
VS.
DIVISION OF HIGHWAYS
(CC-03-224)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
208 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claimant brought this action for damage which occurred when his 2003 Harley
Davidson Low Rider motorcycle struck a hole as he was traveling northbound on
W. Va.
Route 34 in Putnam County. W. Va. Route 34 is a road maintained by respondent
in
Putnam 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 at approximately 5:00 p.m on
November 24, 2003, a clear day. W. Va. Route 34 is a two-lane road that was
under construction to widen the roadway at the time of the claimant’s accident.
Mr. Manoni was on his way home the afternoon of the incident, and was driving
arouiid five to ten miles per hour because traffic was stopping for a vehicle
making a left turn. As claimant was proceeding slowly on the road, his
motorcycle struck a hole that he had not seen. The hole was described by Mr.
Manoni as being about four to six inches deep, a foot to a foot- and-a-half
wide, and a foot to a foot-and-a-half long. Upon striking the hole, the
motorcycle “bucked” causing Claimant to drop the motorcycle. Claimant’s
motorcycle sustained damage in the amount of $3,170.68. Claimant’s insurance
deductible was $500.00 for which he is making this claim.
The position of the respondent was that it did not have notice of the hole on
W. Va. Route 34. Respondent admitted that the area in question had been prone
to having holes in the roadway due to the ongoing construction. Danny Tucker,
Foreman for respondent in Putnam County, testified that the construction being
done on W. Va. Route 34 was not being done by respondent’s own employees, but rather
was being performed by contractors. Mr. Tucker testified that respondent would
attempt to patch any holes that they came upon in traveling the road in the
construction zones, traffic permitting. Mr. Tucker testified that there were no
telephone calls to respondent’s office concerning the existence of the hole in
question in this claim. Respondent also sent inspectors out to the construction
site to ensure that the roads were passable for the traveling public.
Respondent maintains that there was no prior notice to respondent of this hole
on W. Va. Route 34.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130
W.Va. 645, 46 S.E.2d 81 (1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect at issue and a reasonable amount oftime
to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986);
Frill v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent had the
responsibility to ascertain that W. Va. Route 34 was passable for the traveling
public. Respondent has inspectors who are responsible for the conditions in
construction sites and who oversee a contractor’s maintenance of the roadways.
In the instant claim, respondent was aware of the ongoing construction in the
area, and it was also aware that the roadway was more apt to have holes in the
pavement due to the construction activities. Thus, the Court concludes that
respondent was negligent in its maintenance of W. Va. Route 34 on the date of
claimant’s accident, and further, that claimant may make a recovery for the
damage to his motorcycle.
W.Va.j REPORTS
STATE COURT OF CLAIMS 209
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 this claim in the
amount of
$500.00.
Award of $500.00.
OPINION iSSUED NOVEMBER 29, 2004
RALPH E. STANDIFORD, JR.
VS.
DIVISION OF HIGHWAYS
(CC-03-250)
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 rocks when he was traveling northbound on U.S. Route 119
in Kanawha County. U.S. Route 119 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 April 21, 2003, at
approximately 6:30 a.m. On the rainy morning in question, claimant was
traveling northbound on U.S. Route 119 in his 1997 Dodge Ram 1500 Series. U.S.
Route 119 is a two-lane road that is marked at the location of claimant’s
accident as a “falling rock” area with a speed limit of forty-five miles per
hour. Mr. Standiford was driving northbound on U.S. Route 119 toward the
interstate and he was driving around twenty- five to thirty miles per hour due
to the weather conditions. Claimant was proceeding on U.S. Route 119 when rocks
from the hillside adjacent to U.S. Route 119 fell into his lane oftrafflc.
Claimant’s vehicle struck the rocks and sustained damage to the passenger side
tires and rims totaling $1,100.00.
The position of the respondent was that it did not have notice of the rocks on
U.S. Route 119. Respondent admitted that the area in question is a rock fall
area and stated that there are “rock fall” signs located at various locations
along U.S. Route 119 to warn drivers proceeding on the roadway. Mr. David
Fisher, Highway Administrator for respondent in Kanawha County, testified that
this is an area that has rock falls occasionally and that there are rock fall
signs placed along the highway. Mr. Fisher testified that there was a telephone
call about a rock fall, but it came after the claimant’s incident. Respondent
maintains that there was no prior notice of any rocks on U.S. Route 119
immediately prior to the incident in question.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130
W.Va. 645, 46 S.E.2d 81 (1947). To hold respondent liable, claimant must
establish by a preponderance of the evidence that respondent had actual or
constructive notice of the road defect at issue and a reasonable amount of time
to take corrective action. Chapman
210 REPORTS
STATE COURT OF CLAIMS [W.Va.
v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of
Highways, 16 Ct. Cl. 8 (1985). In rock fall claims, this Court has held
that the unexplained falling of a rock onto a highway without a positive
showing that respondent knew or should have known of a dangerous condition
posing injury to person or property is insufficient to justify an award. Coburn
v. Dept. of Highways, 16 Ct. Cl. 68 (1985).
In the present claim, claimant has not established that respondent failed
to take adequate measures to protect the safety of the traveling public on U.S.
Route 119 in Kanawha County. Respondent has placed “falling rock” warning signs
to warn the traveling public of the potential for rock falls at this location.
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 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 NOVEMBER 29, 2004
ROBERT D. SMITH, JR.
VS.
REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY
(CC-04-5 19)
Claimant appeared pro se.
Robert D. Williams, 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 $180.00 for items of personal property that were entrusted to
respondent’s employees when he was taken to South Central Regional Jail, a
facility of the respondent. At the time his mother appeared to pick up his
personal belongings, she discovered the items were 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.
The Court has taken the position in prior claims that a bailment situation has
been created if property of an inmate which is taken from that inmate, remains
in the custody of respondent, and is not produced for return to the inmate at a
later date.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of$180.00.
Award of$180.00.
W.Va.] REPORTS
STATE COURT OF CLAIMS 211
OPINION ISSUED DECEMBER 27, 2004
BRENDA MURPHY, as Administratrix
of the Estate of SCOTT CHARLTON
VS.
DIViSiON OF HIGHWAYS
(CC-0I-188)
James C. Bordas, Jr., Attorney at Law, for claimant.
Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent.
BAKER, JUDGE:
Claimant Brenda Murphy brought this action as Administratrix of the Estate of
Scott Charlton, her son, who died in an incident that occurred when Scott
Chariton was operating his motorcycle on U.S. Route 250, Wetzel County, and he
allegedly encountered a bump on a bridge near Hundred, West Virginia, causing
him to lose control of his motorcycle. U.S. Route 250 is a road
maintained by respondent. 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 May 30, 1999, at
approximately 4:00 p.m. Claimant’s son, Scott Charlton, was traveling
northbound on U.S. Route 250 on his 1993 Suzuki GSR sport motorcycle. U.S.
Route 250 is a two-lane, paved highway in the area of the incident involved.
Mr. Charlton was riding his motorcycle and he was joined by his friend Mark
Malkoff who was also riding a motorcycle. Mr. Malk off testified that he and
Mr. Charlton had decided to go for a long ride that day, looking over their
motorcycles for any problems before they left. They traveled on W. Va. Route 7
and U.S. Route 250. Upon reaching Hundred in Wetzel County, they stopped to
have soft-drinks. After a brief rest, they again drove onto U.S. Route 250,
proceeding northbound. The posted speed limit for U.S. Route 250 at this
location is fifty-five miles per hour. The two men came to a bridge, before
which is a curve warning sign and speed reduction plate of thirty-five miles
per hour. Both men had on two prior occasions driven across this bridge, but on
both occasions they had been traveling in the opposite, southbound lane. Mr.
Malkoff stated that he did not recall seeing the curve sign or the cautionary
speed limit sign. Mr. Malkoff, who was riding about five motorcycle lengths in
front of Mr. Charlton, testified that his speed was fifty- five miles per hour.
Mr. Malkoff testified that when he drove onto a bridge over a creek which was
opposite from the Hundred Lumber Company, he encountered a lateral crack in the
roadway which made both wheels of his motorcyclejump off the ground for a split
second. Mr. Malkoff testified that:
“I was basically right next to the double yellow line closest to the inside of
the lane. I was actually taking the apex on the corner wrong and that basically
saved my life. It made both my wheels front and backjump up off the ground for
a split second. When I came back down, I found myself almost to the white line
on the right-hand side of the road, pulled myself back over. When I pulled
myself back over, I looked in my rearview and I watched Scott wreck his
motorcycle.”
212 REPORTS
STATE COURT OF CLAIMS [W.Va.
He had been riding close to the center yellow lines when he suddenly found
himself closer to the white lines on the right side of the northbound lane. He
was able to control his bike and align himself closer to the center lines when
he looked in his rearview mirror to see Scott Chariton, who was no longer in
control of his motorcycle and who then crashed his motorcycle into the hillside
on the east side of U.S. Route 250. Mr. Malkoff testified that he did not see
whether the bump on the bridge caused Mr. Charlton to lose control of his
motorcycle. Mr. Charlton died as a result of his accident.
Claimant is seeking $2,000,000.00 in damages, including medical bills and
expenses, funeral bills, burial expenses, attorney’s fees, costs associated
with the probate of the estate, and the loss of the expected income that Scott
Charlton would have earned in his lifetime. Scott Charlton is survived by a
pretermitted son as well as two siblings, his mother, and his stepfather.
Fred Hanscom, a highway research engineer, testified as an expert for Claimant
in this claim. Mr. Hanscom is a member of the committee that writes the Manual
of Uniform Traffic Control Devices (hereafter MUTCD), a guideline for all
traffic control devices used by every state, including West Virginia, in
marking its highways. The MUTCD is the standard of practice for applying signs,
hazard warning signs, pavement markings, and all applicable roadway markings.
Mr. Hanscom explained that warning signs are designed and intended to be placed
at specific advance distances so that a driver has adequate time to see the
sign, comprehend what it says, and recognize the hazard. Due to this
prerequisite perception-reaction time, the MUTCD prescribes specific advance
placement distances for warning signs, such as the curve warning sign and speed
reduction sign involved in this case. According to the MUTCD, a warning sign
placed in an area of a fifty-five miles per hour speed limit to advise a
motorist to slow to thirty- five miles per hour requires an advance placement
distance of three hundred fifty feet. In the instant case, there is a curve
warning sign and speed reduction plate in advance of the curve on the bridge
located on U.S. Route 250. This sign is located one hundred thirty-nine feet in
advance of the beginning of the curve, some two hundred eleven feet short of
the three hundred fifty feet prescribed by the MUTCD. Mr. Hanscom indicated
that not only was the sign placed well short of the recommended distance, but
it was blocked from view by the embankment that ran along the roadside. He
testified that even if a motorist could read the thirty-five miles per hour
sign where it is located, it would still provide inadequate warning of the
hazard involved. Mr. Hanscom stated that in his opinion this was an obvious
violation of the MUTCD standards, resulting in an inadequate warning of the
curve and the advised speed reduction.
Mr. Hanscom also testified as to the lack of a sign warning of a “bump” in the
roadway. According to Mr. Hanscom, the bump on the bridge in the northbound
lane was not perceivable to a motorist, and thus was a dangerous hazard that
was not marked in any way. He believed that it was incumbent upon respondent,
based upon the use of the MUTCD standards, to place warning signs in advance of
this hazard. Mr. Hanscom further stated that based upon a West Virginia State
Inspector’s bridge report recommending a repair of the bridge, a warning sign
should have been placed there warning of the bump in the road, as recommended
by the MUTCD. However, respondent did not place a warning sign for this bump:
therefore, it did not provide the proper warning to any motorists using the
road, including the claimant’s son, Mr. Chariton.
W.Va.] REPORTS
STATE COURT OF CLAIMS 213
Dr. John F. Burke, Jr., who has a doctorate in economics, testified for the
claimant as to the earning capacity of Scott Chariton over a lifetime. Mr.
Charlton was twenty-four at the time of his death, working in lawnmower sales
at a reported $2,000.00 per month. Dr. Burke calculated that had Mr. Chariton
survived, his life expectancy was an additional5l.3 years, based upon
statistics produced bythe U.S. Department ofHealth and Human Services. A
typical man in Mr. Chariton’s position also had a work-life expectancy of an additional
34.3 years. Based upon his calculations of work-life and life expectancy, and
based upon the average wages of a person who has some post-high school
education but not a four-year college education, Dr. Burke determined that Mr.
Chariton would have earned $2,145,000.00 had he worked to the age of
fifty-nine, and $2,560,000.00 had he worked to the age of sixty-seven to attain
his full Social Security benefits.
The position of the respondent is that it was Scott Chariton’s failure to
maintain control of his motorcycle that caused this accident, and not a “bump”
in the northbound roadway of the bridge or the placement of the curve warning
sign and the speed reduction plate.
Respondent asserts that Mr. Charhon did not have enough experience in the
operation of motorcycles on roadways. Despite the fact that Mr. Charlton had
been riding dirt bikes for some years, he did not obtain a motorcycle
endorsement on his driver’s license until April 1999, one month prior to the
date of the incident herein. Further, the motorcycle on which Mr. Chariton was
riding had been purchased by him in April 1999. West Virginia State Trooper
Michael Fordyce, the investigating officer, testified that he believed that the
cause of the accident was a lack of experience in the operation of motorcycles
combined with an unfamiliar road. In the accident report, Trooper Fordyce cited
failure to maintain control ofthe motorcycle as a contributing factor in the
accident.
Mark Poe, Maintenance Crew Leader for respondent in Wetzel County, testified
that he had no knowledge of any problems associated with U.S. Route 250 in the
area of Mr. Charlton’s accident. Mr. Poe stated that in August of 1998, his
crew undertook a patching project along U.S. Route 250 for routine maintenance
and hole patching. At that time, they made a small patch at the edge of the
bridge in question in this case, in order to repair a low spot in the roadway.
Randy Rush, Highway Administrator II for respondent in Wetzel County, testified
that between 1997 and 1999 his office had received no complaints in regard to
anything along that stretch of roadway on U.S. Route 250, including the bridge
and the bridge approach. Respondent had not received any complaints concerning
this patch between the time of the maintenance and the date ofthe incident
involved herein.
Darrell Broughton, a team leader for respondent’s bridge inspection team, was
in charge of the inspection of the bridge that took place on November 13, 1998.
On a bridge inspection, the inspectors examine the wearing surface, railing,
waterway alignment, and basically everything to do with the bridge. Upon this
inspection, the only defect he noted was the approach roadways. Mr. Broughton
stated that the northbound approach roadway to the bridge had already been
repaired, which in fact was the section that respondent had patched in August
1999. However, Mr. Broughton testified that the southbound lane had settled
about three-quarters of an inch. He stated “the settlement was continuous all
the way across the roadway along the back wall but with the patch there, the
patch smoothed out the transition located in the northbound lane.” He stated
214 REPORTS
STATE COURT OF CLAIMS [W.Va.
that he was satisfied with the patch that had been made to the northbound lane.
Mr. Broughton stated that he recommended that the partial repair be dealt with,
in that it needed to be made completely across the roadway and not just in the
northbound lane. His repair recommendation was submitted to the bridge
inspection coordinator. Mr. Broughton stated that once he submitted his report
it was up to the Bridge Department to decide what actions needed to be taken to
implement his recommendations. The testimony of Randy Rush established that at
no time were the respondent’s employees in Wetzel County made aware of the
recommendations of Mr. Broughton as put forth in the bridge inspection report.
Charles Raymond Lewis, II, Planning and Research Engineer for the Traffic and
Engineering Division, testified for respondent as to the placement of the warning
signs involved in this case. He testified that the distance from the point of
curvature to the curve sign and speed reduction plate was one hundred
thirty-nine feet. This sign assembly first became completely visible to
oncoming motorists some five hundred sixty- seven feet before the sign. The
MUTCD states that such a sign should be placed three hundred fifty feet from
the point of curvature, but Mr. Lewis stated that the values included in the
MUTCD are guidelines for engineers to base the placement of signs and that
engineering discretion plays a large role in the actual placement of signs.
These guidelines are not mandatory. They’re not rigorous. He stated that there
were several factors that led to the placement of the curve and speed reduction
plate at one hundred thirty-nine feet away from the curve as opposed to three
hundred fifty feet as recommended by the MUTCD. There is a side road sign which
indicates to a northbound driver that he is approaching an intersection. Mr.
Lewis stated that without this sign, there would be no way for a driver new to
the road to know of the upcoming intersection and that another driver may be
pulling out onto the roadway. There is also a guide sign placed at the
intersecting road, informing drivers of which way destinations are located on
U.S. Route 250. There is also a stretch along the northbound roadway that has
been improved for vehicles to park alongside the road. Mr. Lewis stated it
would be inadvisable to place signs in an area where vehicles maneuver as the
sign is likely to get knocked down. Further, there are sight distance
constraints in this area due to the embankment that is on the east side of the
northbound lane. Due to these considerations, Mr. Lewis stated that the
location of the sign at one hundred thirty-nine feet was not unreasonable. He
went on to state that because the MUTCD is only a guideline, there can be no
violations of it. in order for there to be a violation, it has to be a standard
that applies in all cases. The applicable sections of the MUTCD are only
recommendations, recommendations that allow for engineer discretion.
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 Hi ghways, 16 Ct.
Cl. 103 (1986). Respondent may be held liable only for defective conditions on
or near a highway caused by its negligence. State ex rd. vs. Gainer, 151
W.VA. 1002; 158 S.E.2d 145 (1967). However, respondent is held liable only for
those defective conditions that are the proximate cause of claimant’s injuries
or death. Roush vs. Johnson, 139 W.Va. 607; 80 S.E.2d 857(1954). One
requisite of proximate cause is the
W.Va.] REPORTS
STATE COURT OF CLAIMS 215
doing of an act or the failure to do an act that a person of ordinary prudence
could foresee may naturally or probably produce injury to or the death
ofanother. The second requisite of proximate causation is that such act or
omission did in fact produce the injury or death. Matthews vs.
Cumberland&Allegheny Gas Co., 138 W.Va. 639; 77 S.E.2d 180(1953).
In the instant claim, the claimant has
failed to establish that the respondent committed any act or omission in its
maintenance of the road and bridge in question that was the proximate cause of
Mr. Charlton’s tragic death. Although the evidence established that respondent
had notice of the need for further repairs on the bridge on U.S. Route 250 in
Wetzel County, the evidence further established that the recommended
maintenance was to have been performed on the southbound lane of traffic. The
testimony adduced at hearing established that a crew for respondent had patched
the northbound approach to the bridge involved in the incident herein in August
of 1998. Respondent received no complaints in regard to this patch from the
time the patch was put in place to the time of Mr. Chariton’s accident. The
testimony at hearing also established that the while the northbound approach to
the bridge had a satisfactory patch on it, the southbound lane was in need of a
repair. Darrell Broughton testified that in his recommendation for repairs to
the bridge on U.S. Route 250, he recommended that the partial patch be
completed, as the patch that was in the northbound lane needed to be extended
to repair the southbound lane which had also settled. Based upon the evidence
with regard to the southbound lane needing repairs while the northbound lane
was in a satisfactory condition, the Court is of the opinion that claimant has
not established that the alleged bridge or road conditions were the proximate
cause of the motorcycle leaving the roadway. Claimant also alleged that the
placement of the curve sign and advisory speed plate by respondent was
negligent in that the placement of the signs was short of the recommended
distance. The Court is of the opinion that the MUTCD recommended distance is an
advisory one and that respondent was not negligent in its placement of the
curve sign and advisory speed plate.
The Court is not unmindful of the tragedy that struck this family on the date
of the incident herein. The Court is very sympathetic to the claimant and her
family; however, the Court has no legal basis upon which to make an award 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.
The Honorable Benjamin Hays Webb, Ii, Judge, took part in the hearing of this
claim, but he did not participate in the decision or opinion due to his
untimely death. The Honorable Franklin L. Gritt. Jr., Presiding Judge, took no
part in the hearings of this claim, having recused himself. The Honorable
Robert B. Sayre and the Honorable George F. Fordham, Jr., interim Judges, took
part in the decision and the opinion in this claim.
OPINION ISSUED DECEMBER 27, 2004
JEFFREY LAFFERTY
216 REPORTS
STATE COURT OF CLAIMS [W.Va.
VS.
DIVISION OF HIGHWAYS
(CC-03-07 1)
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 October 15, 2002, claimant was a pedestrian walking along Lochgelly Road
in Oak Hill, Fayette County, when he stepped off the road and into an open
drain that was covered by grass. Stepping into the hole caused injury to
claimant’s right leg.
2. Respondent was responsible for the maintenance of Lochgelly Road in Fayette
County and respondent failed to maintain properly Lochgelly Road on the date of
this incident.
3. As a result of this incident, claimant sustained medical expenses in the
amount of $3,500, for which he had no insurance coverage.
4. Respondent and claimant have agreed that the sum of $2,100.00 is a fair and
reasonable settlement for claimant’s out-of-pocket medical expenses and for
claimant’s past and future pain resulting from his injury.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Lochgelly Road in Fayette County on the date of
this incident; that the negligence of respondent was the proximate cause of the
damages 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 in this
claim.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $2,100.00.
Award of $2,100.00.
OPINION iSSUED DECEMBER 27, 2004
RUTH SEARS
VS.
DIVISION OF HIGHWAYS
(CC-03-5 14)
Claimant appeared pro
Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CIJRIAM:
W.Va.] REPORTS
STATE COURT OF CLAIMS 217
Claimant brought this action for vehicle damage which occurred when her 1996
Dodge Avenger struck a portion of broken blacktop on the edge of the road and
berm while she was traveling on W. Va. Route 41 near Summersville, Nicholas
County. W. Va. Route 41 is a road maintained by respondent. 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 between 1:00p.m. on September
27,2003, a sunny day. W. Va. Route 41 is a two-lane highway at the area of the
incident involved in this claim. Claimant testified that her husband, Dale
Sears, was driving her vehicle on W. Va. Route 41 when another vehicle
attempted to pass their vehicle. There was another vehicle approaching from the
opposite direction, so her husband drove to the right side of the road to allow
the passing vehicle to complete its pass of the claimant’s vehicle. They
suddenly heard a low “pop” so they proceeded a short distance and stopped. They
exited the vehicle to find that both passenger side rims had been bent. Later
that evening they went back to look at the area where their rims had been
damaged. Mr. Sears described the broken blacktop section as having about an
eight (8) to ten (10) inch depth, it was probably as long as a car and it was
about one (1) foot wide. The broken section extended into the white line.
Claimant’s vehicle struck this broken section of blacktop and sustained damages
totaling $930.68.
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 41 at the site of the claimant’s
accident for the date in question.
Roger Brown, Assistant Supervisor for the respondent in Nicholas County,
testified that he had no knowledge of this particular section of broken
blacktop along the shoulder and berm on W. Va. Route 41 near Summersville for
the date in question. Mr. Brown stated, however, that W. Va. Route 41 is a road
that his crews work on quite often because of heavy coal truck and wood chip
truck traffic. He testified that crews try to pull the stone back against the
road to keep the berms maintained at least twice a year, sometimes three or
four times during the year. He further stated that if any complaints are
received, crews attempt to respond to these within two weeks. Mr. Brown also
stated that his office receives many complaints at this time of year, however,
he was aware of no complaints near the date of claimant’s accident.
The well-established principle of law in West Virgini.a 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. ofHighways, 16 Ct. Cl. 103 (1986).
This Court has held that the respondent has a duty to maintain the berm of a
highway in a reasonably safe condition for use when the occasion requires. Compton
v. Division of Highways, 21 Ct. CI. 18 (1995). Liability may ensue when a
motorist is forced onto the berm in an emergency or otherwise necessarily uses
the berm of the highway and it fails. Sweda v. Dept. of Highways, 13 Ct.
Cl. 249 (1980). The berm plays an integral part of any highway. It allows a
driver to drive a vehicle off the road when he or she needs to do so. The berm
can also be of assistance to a driver who accidentally drifts to the edge of
the road. The berm provides protection for the driver to keep the vehicle from
going completely off the road and it also gives a driver more time to regain
control of a vehicle in the event that an emergency arises.
218 REPORTS STATE COURT OF CLAIMS [W.Va.
In the instant
case, the Court is of the opinion that respondent had constructive, if not actual
notice of the section of broken blacktop on the edge of the road and the berm
which claimant’s vehicle struck and that this presented a hazard to the
traveling public. The size of the section of broken pavement and the testimony
that this was an area where large trucks routinely travel lead the Court to
conclude that respondent had notice of this hazardous condition. Thus, the
Court finds respondent negligent and claimant may make a recovery for the
damage to her vehicle.
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
this claim in the amount of $930.68.
Award of $930.68.
OPINION [SSUED DECEMBER 27, 2004
TIMOTHY DUNHAM, LORETTA DUNHAM, his wife
and JOEY SMITH
VS.
DIVISION OF HIGHWAYS
(CC-02-470)
Sharon N. Bogarad, Attorney at Law, for claimant
Andrew Tarr and Xueyan Zhang, 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 agreed to as follows:
1. On February 19, 2000, claimants Timothy Dunham and Joseph Smith were
passengers in a vehicle owned by Timothy Dunham and being operated by Gary F.
Yingst. They were traveling on Hudson Hill Road in Weirton, Hancock County,
when the driver of the vehicle lost control. The vehicle then went off the
roadway, down a hill and collided into a tree.
2. Respondent was responsible for the maintenance of Hudson Hill Road in
Hancock County and respondent failed to maintain properly Hudson Hill Road on
the date of this incident.
3. As a result of this incident, claimants Timothy Dunham and Joey Smith
sustained personal injuries.
4. Respondent and claimant have agreed that a sum of $31,000.00 is fair and
reasonable settlement for claimants’ out-of-pocket medical expenses and for
claimants’ past and future pain and suffering resulting from their injuries.
5. Respondent and claimant have agreed that of the total sum of
$31,000.00 to be paid by respondent, claimants Timothy Dunham and Loretta
Dunham are to receive the total sum of $24,000.00.
W.Va.] REPORTS
STATE COURT OF CLAIMS 219
6. Respondent and claimant have agreed that of the total sum of $31,000.00 to
be paid by respondent, claimant Joey Smith, who is now an adult, is to receive
the total sum of $7,000.00.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Hudson Hill Road in Hancock County on the date
of this incident; that the negligence of respondent was the proximate cause of
the damages sustained by claimant; and that the amount of the damages agreed to
by the parties is fair and reasonable. Thus, claimants may make a recovery for
their losses.
Accordingly, the Court is of the opinion to and does make an award in the total
amount of $31,000.00.
Award of $24,000.00 to Timothy Dunham and Loretta Dunham.
Award of $7,000.00 to Joey Smith.
OPINION ISSUED DECEMBER 27, 2004
ANDREA DEPTA, an infant through her
father
and next friend, GARY DEPTA
VS.
DIVISION OF HIGHWAYS
(CC-02 163)
Mark Hobbs, Attorney at Law, for claimants.
Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent.
PER CURIAM:
Claimants brought this action for damages related to an incident that occurred
when 8 year old Andrea Depta (hereafter referred to as Andrea) fell off a
bridge over Buffalo Creek near Kistler in Logan County. The bridge is
maintained by respondent. 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 25, 2001. Claimant
Andrea Depta, who had celebrated her 8th birthday
about a month before the time of the accident, was standing on her bicycle on
the bridge over Buffalo Creek looking for catfish. The bridge involved in this
incident is a 15 feet wide, concrete, pre-fabricated bridge that is 45 feet
long. The bridge had a curb that was five inches high and about six inches wide,
but it had no guard rails. Andrea had been riding her bicycle with her friend,
John Toler, also on his own bicycle, for a couple of hours when they decided to
look for catfish in Buffalo Creek. She testified that she had previously looked
for catfish in the creek while standing on the bridge, despite warnings from
her parents to stay off the bridge. Her parents had warned her to stay off the
bridge because there were no guard rails. Andrea testified that she was
standing astride her bicycle with her foot on the curb looking over the edge
when her foot slipped and she fell over the edge. Andrea fell about 10 or II
feet and landed on a rocky area at the side of the creek. She attempted to
break
220 REPORTS
STATE COURT OF CLAIMS [W.Va.
her fall with her hands. As a result of the fall, she sustained two fractured
wrists and lacerations to her forehead. She blacked out for a short period of
time but then got up and started walking back to her home. John Toler ran to
get help and was able to get his mother. Ms. Toler discovered Andrea walking up
the street bleeding freely from her head. Ms. Toler got a cloth to put on her
head and then walked Andrea to her parents’ house. Gary Depta, Andrea’s father,
called for an ambulance and then proceeded to put her in his truck to take her
to the hospital. On the way to the hospital, they were able to flag down the
ambulance which then took Andrea to Logan General Hospital. She was then
transferred to Charleston Area Medical Center where the wounds on her head were
treated and both broken wrists were set. Claimant incurred over $9,800.00 in
medical bills which were covered by Medicaid. Claimant seeks compensation for
pain and suffering, mental anguish, and future medical expenses for cosmetic
surgery on the scars that remain on Andrea’s forehead.
Gary Depta, Andrea’s father, testified that at the time of the accident he had
been sitting in his home. Mr. Depta stated that the bridge had been installed
about 12 years before the incident and that it had never had guard rails on it.
He testified that he had told Andrea every day that she should not go onto the
bridge because there were no guard rails on it and it was not safe for her to
be there. He also stated that he had previously found her on the bridge despite
his warnings and had punished her for this. Mr. Depta said that he had
contacted respondent on several occasions before the accident to inquire about
putting guard rails on the bridge, since this was the only access across
Buffalo Creek to Route 16 for the residents in the area where the Depta’s
lived. This was also the only way the children in the area could get to their
bus stop. He stated that after the accident Andrea had been in a lot of pain
the entire time he was with her. He rode in the ambulance with her from Logan
General Hospital to Charleston Area Medical Center. He testified that Andrea
had surgery performed on her head the next morning followed by surgery to set
her wrists. She was finally released from the hospital later in that day. Mr.
Depta testified that Andrea could not do anything when she got home as both her
arms were in casts. He and the rest of the family had to help Andrea do just
about everything. He stated that because of her injuries, she missed six or
seven weeks of school and that they had to bring in a home tutor to help her
complete the school work she was missing. Mr. Depta testified that she had the
cast on her left wrist for about five weeks and the cast on her right wrist,
which was more severely broken, about two or three more weeks.
Sherry Depta, Andrea’s mother, testified that when the bridge had first been
put in place about 12 years ago, she had called the Logan Department of
Highways to inform them that this was an area where children had to cross the
bridge everyday to get to their bus stop. She also informed respondent that
children play near this bridge all the time and for these reasons there should
be guard rails on the bridge. Mrs. Depta was told on that occasion and on
subsequent occasions when she called about the need for guard rails that the
guard rails were not installed so that mobile homes could be moved in and out
of the area. She testified that she made at least six or seven telephone calls
to respondent about the need for guard rails before her daughter’s accident.
Mrs. Depta stated that on the date of the accident, she had taken her son to
the local Dairy Queen and then on to her grandmother’s house. When she got to
her grandmother’s, she was told to go home because there had been an accident.
She arrived home just as Mr. Depta was preparing
W.Va.] REPORTS
STATE COURT OF CLAIMS 221
to take Andrea to the hospital. They then put her into Mrs. Depta’s vehicle and
drove her until they were able to flag down the ambulance, which took her the
rest of the way to the hospital. Mrs. Depta testified that while at the
hospital, the doctors had given Andrea a local anesthesia while they put
stitches in the wounds on her forehead but she had to be under general
anesthesia when they set her wrists. After they got Andrea home, they had to
help her do everything including feeding her, to dress her and to take her to
the bathroom. Mrs. Depta testified that it was about a year before Andrea was
fully recovered from her injuries, though she still favors her wrists when she
trips and she sometimes complains of her wrists being sore if she writes for
too long. Mrs. Depta also stated that her daughter has had dreams about falling
off a bridge after the incident and that she now does not like high places.
Danielle Depta, Andrea’s older sister, testified that she had taken Andrea
across the bridge on numerous occasions. She further testified that their
parents had told them on a regular basis that the bridge was not safe. She also
stated that on previous occasions she had seen Andrea on the bridge and had
told her that she should not be there.
The position of the claimant is that respondent was negligent by failing to
properly maintain the bridge and by failing to properly install guard rails,
and that as a direct and proximate result of the negligent acts of respondent
claimant fell from the bridge and suffered damages.
The position of the respondent is that no action or failure to act on its part
caused the claimant’s injuries or the incident that led to those injuries. Upon
the completion of claimant’s case, respondent made a motion to dismiss based
upon Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81(1947), in that
there had never been any guard rails at this location and this should be left
to the discretion of the State Road Commissioner. Respondent also based its
motion to dismiss on the fact that there had been no expert testimony presented
by the claimant to show that the accident would not have happened if a guard
rail had been in place. Further, respondent argued that the rebuttable
presumption that a 7 to 14 year old is incapable of negligence established in Pino
vs. Szuch, 185 W. Va. 476; 408 S.E.2d 55(1991), had been met and Andrea
should be found to be negligent in her actions that led to her falling from the
bridge. The motion to dismiss was taken under advisement.
Terry Ellis, a transportation crew chief for the respondent in Logan County,
testified that the bridge in question, which is just off Route 16 in Logan
County, was installed in 1990 or 1992. He testified that he had received no
complaints concerning any problems with this bridge prior to claimant’s
accident. Mr. Ellis found out about the accident a couple of days later. He
also talked to Mrs. Depta several days after the accident about there being no
guard rails on the bridge. Mr. Ellis maintained that he had received no notice
of any problems or complaints about the bridge prior to the claimant’s
accident.
Curley Belcher, County Supervisor for the respondent in Logan County, testified
that he had no knowledge of any complaints about this bridge prior to the date
of the claimant’s accident. Mr. Beicher stated that he found out that someone
had fallen from the bridge at some point after claimant’s accident, but that he
had heard nothing else in regard to the bridge in question prior to that. He
stated this bridge was the newest bridge that he was aware of that does not have
guard rails. Mr. Belcher stated that for bridges
222 REPORTS STATE
COURT OF CLAIMS [W.Va.
installed from around 1990 to the present, the bridge involved in this claim is
the only one that he knows of that does not have any guard rails.
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). To be
actionable, respondent’s negligence must be the proximate cause of the
claimant’s injuries. Roush vs.
Johnson, 139 W.Va. 607; 80 S.E.2d 857 (1954). One
requisite ofproximate cause is the doing of an act or the failure to do an act
that a person of ordinary prudence could foresee may naturally or probably
produce injury to or the death of another. The second requisite ofproximate
causation is that such act or omission did in fact produce the injury or death.
Matthews vs. Cumberland &
Allegheny Gas Co., 138 W.Va. 639; 77
S.E.2d 180 (1953). For a child between the ages of 7 and 14, there is a
rebuttable presumption that the child is incapable of negligence; the burden is
upon the party attempting to overcome the presumption to prove that the child
has the capacity to be contributorily negligent. Pino vs. Szuch, 185 W. Va. 476; 408 S.E.2d 55 (1991).
This claim involves an eight year old child who slipped and fell from a bridge.
As established in Pino vs. Szuch, there is a rebuttable presumption that a child between
the ages of 7 and 14 is incapable of negligence. The burden lies upon the party
that is attempting to overcome the presumption to prove by a preponderance of
the evidence that the child had the capacity to be contributorily negligent. In
this matter, respondent has made a motion to dismiss, based partly on the
assertion that this burden has been met and Andrea should be held
contributorily negligent. However, this Court finds that this burden has not
been met and Andrea cannot be found contributorily negligent. In Pino vs. Szuch, the Supreme Court of Appeals established the standard to be followed
holding that a child under the age of 7 is incapable of negligence, a child
between the ages of 7 and 14 is presumed incapable of negligence, and a child
over 14 is presumed to be capable of being negligent. The Supreme Court of
Appeals went on to state that “[i]n order to rebut the presumption that a child
between the ages of 7 and 14 lacks the capacity to be negligent, evidence of
the child’s intelligence, maturity, experience, and judgmental capacity must be
presented ...
It is also permissible to show that the
child had been recently warned of the dangers associated with the activity that
gave rise to his injury.” Id. at 477, Syllabus 4. The Supreme Court of Appeals also
stated that “[a] party is not entitled to rebut the presumption that a child
between the ages of 7 and 14 is incapable of negligence with a binding
instruction which focuses only on two factors, i.e., whether the child has been
warned of the danger that caused his injury and whether the child was of
sufficient intelligence to understand the danger.” Id. at 477,
Syllabus 4. The Supreme Court of Appeals further stated “there is no doubt, as
the Pennsylvania court said in Berman
vs. Philadelphia Board of Education, 310
Pa.SuperlS3; 456 A.2d 543 (1983), that the presumption grows weaker as the
fourteenth year grows closer.” Id. at 479. lii the instant case, there was substantial
evidence that Andrea had been warned repeatedly of the dangerous condition of
the bridge by her parents. There was also evidence presented that Andrea was a
good student in school both before and after the accident. This however, was
the limit of the evidence presented to rebut the presumption
W.Va.J REPORTS
STATE COURT OF CLAIMS 223
that Andrea, as an eight year old, was incapable of negligence. Further, Andrea
had turned eight years old about one month before this accident. As in Pino, if the
presumption grows weaker as the fourteenth year grows closer, it can also be
said that the presumption is stronger the closer the child is to the age of
seven. Based upon the fact that Andrea was only 13 months removed from her
seventh birthday, along with only the evidence that she had been warned of the
danger and her intelligence, this Court finds that the rebuttable presumption
that Andrea was incapable of negligence was not met; therefore she cannot be
found guilty of contributorily negligence.
Regarding respondent’s Motion to Dismiss based upon Adkins vs. Sims, this Court is not unmindful of it’s previous decisions based upon Adkins. The Adkins Court
stated:
“[w]e do not think the failure of the state road commissioner to provide guard
rails .
. . 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. . . 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 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. . . 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 character, it cannot be negligence that he
selects for safety measures one point over another. . . .“ Adkins v Sims, 130
W.Va. at 660, 661; 46 S.E.2d at 88,
89.
Based upon Adkins, this Court has previously ruled that respondent was not
liable in a case where there was never guard rails on a bridge. Springer vs. Division of Highways, 24 Ct. Cl. 42. Tn Blevins vs. Division of Highways, 18 Ct. Cl. 164, this Court stated that “the absence of a guard rail does
not in and of itself establish negligence.” Id. at 165.
In the instant case however, the Court is of the opinion that respondent had at
least constructive knowledge that installing and maintaining this bridge
without guard rails was a hazard to the public. Evidence adduced at trial
proved that Sherry Depta had telephoned respondent after the bridge was
installed to inform them of the fact that the children in the neighborhood had
to cross over this bridge every day during the school year to get to their
school bus stop and then back to their homes. Mrs. Depta also informed
respondent that the area in and around the bridge was one where the children
frequently played. Mr. and Mrs. Depta made numerous other telephone calls to
the respondent regarding this over the years. It was also established that this
was the only way in and out of their neighborhood, with Route 16 just on the
other side of this bridge. This bridge had replaced the only other way out of
the area, thereby becoming the only
224 REPORTS
STATE COURT OF CLAIMS [W.Va.
access to Route 16. The children that lived in the neighborhood had no other
way to get to their school bus stop. While respondent is correct in asserting
that Adkins leaves it to its own discretion where to place guard rails,
this Court finds that the failure to place guard rails on this particular
bridge, where it was made known soon after the bridge was installed that this
was an area where children frequently had no choice but to be, was negligent.
Further, the Court, after considering that children frequently walked across
and played on this bridge, finds that the bridge is a dangerous
instrumentality. In Sutton v. Monongahela Power Co., 151 W.Va. 961; 158
S.E.2d 98 (1967), the Supreme Court of Appeals stated that though this
State does not recognize the doctrine of attractive nuisance, there is a
similar rule for children:
“Although the Attractive Nuisance Doctrine is not recognized in this State,
this Court has adopted a rule quite similar to that doctrine and has held that
where a dangerous instrumentality or condition exists at a place frequented by
children who thereby suffer injury, the parties responsible for such dangerous
condition may be held liable for such injury if they knew, or should have
known, of the dangerous condition and that children frequented the dangerous
premises either for pleasure or out of curiosity.”
Id., at 971. The respondent knew that there were no guard rails on the
bridge and was notified on several occasions that there were children
frequently in the area of the bridge, therefore, this Court finds that the
bridge was in fact a dangerous instrumentality, and therefore may be held
liable for the injury sustained by the claimant.
Based upon the knowledge that children were often around and on the bridge, the
claimant meets the first requisite of proximate cause where a failure to do an
act that a person of ordinary prudence could foresee may naturally or probably
produce injury to or the death of another. Respondent was made aware of the
fact that children would be on this bridge either walking or playing. A person
of ordinary prudence could foresee that children while playing on a bridge with
no guard rails could in fact fall off while peering over the edge or evenjust
walking too close to the edge. This in fact did happen when Andrea fell over
the side of the bridge while looking over the edge for catfish. The Court finds
that this accident was the result of respondent failing to place guard rails on
the bridge, thus meeting the second requisite of proximate causation.
For the reasons stated above, the Court denies respondent’s Motion to Dismiss.
The Court is also of the opinion that respondent is liable for the damages
which proximately flow from its inadequate protection of the traveling public
in this location, and further, that respondent is liable for damages to
claimants in this claim. However, it should be noted that claimants have
claimed, in part, future medical expenses. In claimants’ case in chief there
was no evidence which established what Andrea’s future medical expenses may be.
No future medical expenses being proved in this case, the damages awarded in
this claim do not include future medical expenses.
The Court, in making an award to Andrea, shall make the award to Gary Depta,
Andrea’s father and next friend, as her guardian. Accordingly, he must qualify
as her guardian, andbe bonded, and otherwise comply with West Virginia Code § 44-10-5 and
44-10-7.
W.Va.] REPORTS
STATE COURT OF CLAIMS 225
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
Andrea Depta in this claim in the amount of $36,000.00.
Award of $36,000.00.
OPINION ISSUED DECEMBER 27, 2004
PAMELLA SHIELDS and DAViD SHIELDS
VS.
DIVISION OF HIGHWAYS
(CC-04-089)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
PER CUR1AM:
Claimants brought this action for vehicle damage which occurred when their
vehicle struck a hole while claimant Pamella Shields was traveling on W. Va.
Route 41 near Craigsville, Nicholas County. W. Va. Route 41 is a road
maintained by respondent. 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 between 1:00p.m. and 1:30 p.m.
on February 13, 2004, a clear afternoon. Claimant Pamella Shields was traveling
on W. Va. Route 41 in their 2001 Chevrolet Cavalier. W. Va. Route 41 is a
two-lane highway at the area of the incident involved in this claim. Claimant
testified that she was driving up a slight incline when the vehicle went into a
dip in the road that caused her to lose control and the vehicle swerved and
struck a broken section of blacktop along the berm of the road. As a result of
claimants’ vehicle striking the broken blacktop, there was damage to the right
rear tire. The impact of the vehicle on the broken section of blacktop also
caused damage to the front windshield, air conditioner, antenna, tail lam.p and
gas cap. Claimants’ vehicle sustained damage totaling $3,g34994 Claimants’
insurance deductible was $500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 41 at the site of the claimant’s
accident for the date in question.
4lncluded in the invoice provided to the Court by the claimants were some
expenses to repair the front bumper, which was damaged by the tow truck that
towed the vehicle in for repairs. However, the expenses incurred to repair the
damages
caused directly by the vehicle striking the broken blacktop substantially
exceeded the insurance deductible.
226 REPORTS STATE
COURT OF CLAIMS [W.Va.
Roger Brown, Assistant Supervisor for the respondent in Nicholas County,
testified that he had no knowledge of any broken sections of blacktop along the
berm on W. Va. Route 41 near Craigsville on the date in question. Mr. Brown
stated that he was aware of no complaints concerning problems with the berm
around the date of claimant’s accident. He further testified that based upon
photographs submitted by claimant, it appeared that at some point guard rail
posts had been placed next to the shoulder to try to keep it in place.
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).
This Court has held that the respondent has a duty to maintain the berm of a
highway in a reasonably safe condition for use when the occasion requires. Compton
v. Division of Highways, 21 Ct. Cl. 18 (1995). Liability may ensue when a
motorist is forced onto the berm in an emergency or otherwise necessarily uses
the berm of the highway and it fails. Sweda v. Dept. of Highways, 13 Ct.
Cl. 249 (1980). The berm plays an integral part of any highway. It allows a
driver to drive a vehicle off the road when he or she needs to do so. The berm
can also be of assistance to a driver who accidentally drifts to the edge of
the road. The berm provides protection for the driver to keep the vehicle from
going completely off the road and it also gives a driver more time to regain
control of a vehicle in the event that an emergency arises.
In the instant case, the Court is of the opinion that respondent had at least
constructive notice of the section of broken blacktop along the berm and
shoulder which claimants’ vehicle struck and that this presented a hazard to
the traveling public. The size of the section of broken pavement and the
testimony that this was an area where the shoulder had been reinforced lead the
Court to conclude that respondent had notice ofthis hazardous condition. Thus,
the Court finds respondent negligent and claimants may make a recovery for the
damage to their vehicle.
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 claimants in
this claim in the amount of $500.00.
Award of $500.00.
OPINION ISSUED FEBRUARY 4,2005
NED WARS dJb/a CASS DIORAMA, INC.
VS.
DIVISION OF NATURAL RESOURCES
(CC-03- 189)
Claimant appeared pro se.
Kelli Goes, Assistant Attorney General, for respondent
W.Va.] REPORTS
STATE COURT OF CLAIMS 227
GRITT, JUDGE:
Claimant brought this action for damages resulting from an alleged breach of
contract for the operation of a diorama and show at the Cass Scenic Railroad
State Park, a facility of the respondent. The Court is of the opinion to make
an award in this claim for the reasons more fully stated below.
On or about April 7, 1997, claimant and respondent entered into a contract for
the operation of a diorama and an audio/video program at the Cass Scenic
Railroad State Park (hereafter Cass). This was a new contract agreed to by the
parties, although the parties had previously entered into contracts for the
operation of the same diorama. The contract term was from April 7, 1997 to
March 31, 2001. The contract provided that claimant was to operate the diorama
during the months that Cass was open, from Memorial Day weekend until the end
of October. According to the contract, claimant was to be paid $0.50 on each
train ride ticket sold at Cass. Further, claimant was allowed to sell
merchandise along with the operation of the diorama, and he was to pay fifteen
percent (15%) of all gross receipts on merchandise sold and diorama ticket
sales sold by claimant to the respondent. Claimant did not sell any tickets to
the public for viewing the diorama during the period of this contract.
On January 23, 2001, a meeting was held between Bob Beanbiossom, District
Administrator with the Parks and Recreation section of the Division of Natural
Resources, Billy Thomas, then superintendent at Cass, and claimant. At this
meeting, Mr. Viars was informed that respondent would not be renewing the
contract in the same form as it had been during the duration of the 1997 to
2001 contract. Mr. Viars was offered three options in the meeting: I) a new
contract with respondent which would provide that he would sell separate
tickets to the public at the door for viewing the diorama and showcase; 2)
respondent would buy the diorama from Mr. Viars outright; or 3) respondent
would lease the diorama from Mr. Viars. Claimant stated in the meeting that he
did not want to sell the diorama. The contract expired of its own terms on
March
31, 2001.
In May 2001, claimant was contacted by Mr. Thomas to open the diorama and show
for rail fan groups which were to be at Cass prior to its annual season.
Claimant had opened the show before the season on weekends for rail fan groups
in previous years. Before the beginning of the season, but after the rail fan
groups came to Cass, claimant agreed to sell the diorama to respondent for
$9,995.00. Claimant was not compensated for the operation of the diorama during
the month of May 2001.
It is claimant’s position that his company, Cass Diorama, overpaid respondent
fifteen percent (15%) ofthe $0.50 per train ride ticket sold at Cass
that it was paid during the duration of its contract with respondent, an amount
that was not included in the contract, for an alleged loss of $32,500.00.
Claimant also contends that respondent ordered his staff to stop selling
T-shirts for 30 days, in spite of the fact that the contract with respondent
provided for the sale ofmerchandise, for a loss of $2,000.00. Mr. Viars further
alleges that respondent requested that claimant open the diorama and show in
May 2001, but he was not paid for running the show during this time, resulting
in a loss of revenue of $5,000.00. Additionally, claimant alleges that
respondent forced him to sell the diorama, valued at $75,000.00, for $9,995.00,
resulting in a $65,005.00 loss. Claimant’s total alleged loss is in the amount
of $104,505 .00.
228 REPORTS
STATE COURT OF CLAIMS [W.Va.
The position of the respondent was that the contract with Mr. Viars expired of
its own terms on March 31, 2001. Respondent offered claimant three options for
a new contract, one of which was for respondent to buy the diorama outright
from Mr. Viars. Claimant eventually offered to sell the diorama for $10,000.00,
but the final sale price was $9,995.00. Respondent further contends that
there was an agreement in the contract whereby claimant was to pay respondent
fifteen percent (15%) of all gross receipts on merchandise sold and diorama
ticket sales sold by the contractor. Respondent subtracted the fifteen percent (15%)
for the diorama ticket sales from the $0.50 they paid him for each
railroad ticket sold by respondent.
DISCUSSION
The evidence adduced at hearing established that Mr. Viars originally
approached Cass about building the diorama and running the show in the
mid-1980s. Claimant built the diorama to look like the town of Cass between
1900 and 1930 with the help of others and collected information and photographs
that were put together into a slide show. Claimant and respondent agreed to a
new contract in 1997 for the operation of the diorama at Cass. Under this
contract, claimant was to receive $0.50 for every train ride ticket sold.
Claimant was also allowed to sell merchandise of which fifteen percent (15%)
of the gross receipts would be paid to respondent. According to the
contract, fifteen percent (15%) of all gross receipts on diorama ticket sales
sold by claimant was also to be repaid to respondent. There were no diorama
tickets sold during the entirety of the contract. However, evidence adduced at
the hearing established that respondent subtracted fifteen percent (15%) from
the $0.50 per ticket that claimant received from respondent. Mr. Beanblossom
testified that it was his understanding that while there were no diorama
tickets sold, these diorama tickets were included within the price of the train
ride ticket. He stated that the fifteen percent (15%) was automatically taken
out before sending Mr. Viars his share of the total tickets sold each month.
Claimant testified that on several occasions he mentioned this fifteen percent
(15%) that was being taken out of his payment to Mr. Beanblossom and how he did
not think that he was supposed to pay this according to the contract. Mr. Viars
also brought up this payment of fifteen percent (15%) to Mr. Thomas
during a meeting in the spring of 2001. Claimant stated that at that time he
thought that this was the reason that respondent wanted to rework the contract
and did not want a contract similar to the contract of 1997 to 2001. Over the
four year period of the contract, respondent deducted $19,146.15 from
the $0.50 per ticket it paid Mr. Viars as per the contract terms.
The Court is of the opinion that respondent wrongfully withheld the fifteen
percent (15%) from the amount that it paid claimant for the $0.50 per train
ride ticket sold. While there was a provision in the contract that provided for
claimant to pay the respondent fifteen percent (15%) of the gross
receipts based upon any diorama tickets that were sold, the contract did not
purport to include the cost of diorama tickets in the price of train ride
tickets. Respondent stated that it understood the contract to include the cost
of the diorama tickets in the price of the train ride ticket. The fact that
there were separate provisions in the contract which set out “diorama ticket
sales” and “train ride tickets” is indicative that the diorama tickets were not
included in the price of the train ride tickets. Therefore, the Court is of the
opinion to make an award of $19,146.15 to claimant.
W.Va.] REPORTS
STATE COURT OF CLAIMS 229
The claimant’s second claim is for a loss that resulted when respondent stopped
his staff from selling T-shirts at the diorama. According to the terms of the
contract entered into by claimant and respondent, Mr. Viars was allowed to sell
merchandise at the diorama. During the term of the contract, Mr. Viars
testified that the only merchandise he sold was T-shirts. Jerry Wilson, who was
employed by Mr. Viars to operate the diorama during the season, testified that
these shirts sold for $11.95. Mr. Wilson stated that at some point in
July or August of 2000, he was approached by an employee ofrespondent and told
to stop selling the T-shirts. He testified that he was kept from selling the
shirts for a couple of weeks and then he was told that he could resume selling
them. Mr. Wilson estimated that during a two week period he probably sold
$500.00 to $1,000.00 worth of shirts at the diorama. Billy Thomas,
Superintendent at Cass from May 2000 to August 16, 2002, testified that he had
asked Mr. Wilson to stop selling the shirts briefly in July of 2000. Mr. Thomas
stated that another employee of respondent had approached him and informed him
that Mr. Wilson was selling shirts at the diorama and that this might be in
violation of the contract between claimant and respondent. Mr. Thomas then
asked Mr. Wilson to stop selling the shirts. Mr. Thomas was then advised by a
superior in the Division of Natural Resources that he should allow the sale of
the T- shirts. He was of the opinion that he had stopped the sale of the shirts
for one day at most. Claimant testified that to his knowledge at least one week
went by when the staff was not allowed to sell shirts. The Court concludes that
Mr. Viars was permitted to sell merchandise according to the contract and that
respondent wrongfully prevented him from selling the T-shirts for one week.
This resulted in a loss for claimant of $500.00. Therefore the Court is of the
opinion to and does make an award of $500.00 to claimant.
Claimant also alleges that he was not compensated for opening the diorama for
rail fan groups in the spring of 2001. In May 2001, claimant opened the diorama
early at the request of the respondent for rail fan groups who visited Cass
prior to the official opening of the season. Mr. Viars and Jerry Wilson had to
work for a couple of weeks to get the diorama ready for the early opening. Mr.
Wilson stated that Cass would routinely open for visits from rail fan groups
and that the diorama would also open early every year for these visitors. Billy
Thomas testified that this was a common request each spring. The rail fan
groups paid a group rate based upon the number ofvisitors that came to Cass.
There were three groups that came to Cass in May 2001. All three groups
typically brought a total of 335 people to Cass each year when they came in
May. Mr Thomas further stated that Mr. Viars was not compensated for opening
and running the diorama in May 2001. Respondent found evidence of a payment to
Mr. Viars in 1998 for rail fan groups coming to Cass in the month of May that
particular year. The documents established that claimant was paid $0.50 per
person for each rail fan group that came to Cass.
The Court is of the opinion that respondent was responsible for compensating
claimant for the work he did in opening the diorama during the month of May
2001, as respondent had previously compensated Mr. Viars for similar events.
Based upon the evidence that it was typical for there to be approximately 335
total visitors to Cass with the rail fan groups, the Court is of the opinion to
and does make an award to claimant in the amount of$167.50.
230 REPORTS
STATE COURT OF CLAIMS [W.Va.
The last assertion made by claimant is based upon the sale of the diorama to
respondent. Claimant alleges that he was forced to sell the diorama for
$9,995.00, resulting in a loss of $65,005.00. The sale of the diorama came
about after the January 23, 2001, meeting between Mr. Beanbiossom, Mr. Thomas,
and Mr. Viars. At that time, claimant was offered the previously discussed
three options of respondent leasing the diorama from claimant, claimant selling
his own tickets to the public at the door for viewing the diorama, or
respondent would buy the diorama outright from claimant. Claimant stated that
he informed Mr. Beanbiossom at the meeting that he did not want to sell the
diorama. Both Mr. Viars and Mr. Beanblossom stated that after the meeting each
of them thought that there was going to be a new contract in some form or
another. Mr. Viars eventually contacted Mr. Thomas and stated that he would be
willing to sell the diorama for $10,000.00. Claimant contended that he came to
this decision only after being told that he had to either sell the diorama or
remove it from the building it was in, which according to claimant was not a
valid option. Mr. Thomas contacted Mr. Beanbiossom concerning claimant’s offer.
Mr. Beanbiossom informed Mr. Thomas that because of purchasing guidelines, they
could pay $9,999.00 or less right away. Mr. Viars eventually agreed, and on
June 6, 2001, an agreement to sell was reached for a price of
$9,995.00.
The Court is of the opinion that the decision made by Mr. Viars was a business
decision that he made of his own accord. Testimony from both claimant and
respondent established that while the contract was not going to be renewed by
respondent, three options were given to claimant including selling the diorama
to respondent. There was no evidence presented that indicated that respondent
eliminated the other options and forced claimant to sell the diorama.
Therefore, claimant’s claim for the alleged lost value on the sale of the
diorama is denied.
In accordance with the findings of fact as stated herein above, the Court is
ofthe opinion to and does make a total award to claimant in the amount of
$19,813.65.
Award of$19,813.65.
OPINION iSSUED FEBRUARY8, 2005
MICHAEL T. DILLON and CHASTITY DILLON
VS.
D1V1S1ON OF HIGHWAYS
(CC-04-424)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their 1999
Jeep Cherokee struck a branch from a tree that was overhanging the roadway
while claimant Chastity Dillon was traveling on County Route 4 in Monroe
County. County
W.Va.] REPORTS
STATE COURT OF CLAIMS 231
Route
4 is a road maintained by respondent. 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 around 9:00 a.m. on June 28,
2004. County Route 4 is a one-lane road with gravel shoulders on both sides of
the road at the area of the incident involved in this claim. Claimant Chastity
Dillon testified that she was driving on County Route 4 when she had to drive
her vehicle onto the right shoulder to make room for a vehicle approaching in
the opposite lane. Ms. Dillon testified that she saw some leaves overhanging
the roadway. When she drove her vehicle under the leaves, a branch struck the
corner of the vehicle’s windshield, cracking the windshield. She testified that
the branch also dented the upper portion of the vehicle’s roof. Claimants’
vehicle sustained damage totaling $671.30. Claimants’ insurance deductible was
$500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on County Route 4 at the site of the claimant’s
accident for the date in question.
Marion Bradley, supervisor for the respondent in Monroe County, testified that
he had no prior knowledge of a tree branch overhanging County Route 4. Mr.
Bradley stated that County Route 4 was a one lane road that was about 15 feet
wide. He stated that after Ms. Dillon contacted him about the branch, he had a
crew drive to the area of claimant’s incident and cut down the branch.
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).
In the instant case, the Court is of the opinion that respondent had at least
constructive notice of the branch overhanging the roadway which claimants’
vehicle struck and that the branch presented a hazard to the traveling public.
County Route 4 is a one lane road where drivers must use the shoulders if there
is another vehicle that is passing. The location of the branch over the travel
portion of the road leads the Court to conclude that respondent had notice of
this hazardous condition and that respondent had an adequate amount of time to
take corrective action. Thus, the Court finds respondent negligent and
claimants may make a recovery for the damage to their vehicle.
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 this claim in the amount of $500.00, their insurance deductible.
Award of $500.00.
OPINION ISSUED FEBRUARY 8,2005
LANDON A. KENNEDY
VS.
DIViSION OF HIGHWAYS
232 REPORTS STATE
COURT OF CLAIMS [W.Va.
(CC-04-292)
Claimant appeared pro Se.
Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for damages which occurred when his dog was
electrocuted by a power line that had been severed during a mowing project on
County Route 6/9 in Wyoming County. County Route 6/9 is a road maintained by
respondent. 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 sometime between 1:30 a.m. and
9:30 a.m. on May 4, 2004. County Route 6/9 is a two-lane highway at the area of
the incident involved in this claim. Claimant testified that he had been
raccoon hunting with his Red Tick Coon Dog and another dog. Mr. Kennedy had
purchased the Red Tick Coon Dog in August 2003 for $1,150.00. At some point the
dog caught the scent of a raccoon and chased the animal. Claimant stated that
he then lost track of his dog, but having to wake up early the next day to go
to work, he decided to go home for the night. Mr. Kennedy stated that raccoon
hunting dogs such as his would either come home or find some place that they
were familiar with in the morning if they are out hunting. He called a neighbor
and asked him to pick the dogs up the next morning. At 9:30 a.m. Mr. Kennedy
received a telephone call stating that his dog had been found in Reedy Creek just
off of County Route 6/9. Claimant arrived at the scene of the incident shortly
thereafter. A friend of claimant’s had attempted to pull the dog out of the
creek, but there was a downed power line in Reedy Creek that was still
energized so they had to contact American Electric Power Company to come to the
scene to deactivate the power line before Mr. Kennedy could recover his dog.
Claimant stated that he talked to Mike Hatfield and Wayne Bailey, employees of
respondent, who had been out mowing in the area of the incident the day before
claimant’s dog was found dead. Mr. Hatfield told claimant that they had been
mowing in the area adjacent to the road when a cut tree or bush fell into the
power line. Mr. Kennedy was informed that the two men had reported the incident
to their office, which was supposed to contact American Electric Power Company.
Claimant stated that his dog was pregnant at the time of the accident, but that
he did not know how many pups his dog was carrying. He further stated that he
had agreed to give the pick ofthe litter as a stud fee for breeding his dog.
Mr. Kennedy stated that a Red Tick Coon Dog pup was valued at $450.00. Claimant
also had a tracking system on the dog which cost $185.00. Claimant claims
$2,500.00 in damages.
The position of the respondent is that it had done all that was required of it
after knocking over a power line adjacent to County Route 6/9 at the site of
the claimant’s accident for the date in question.
Mike Hatfield, an equipment operator for the respondent in Wyoming County,
testified that on May 3, 2004, he and Wayne Bailey were mowing brush along
County Route 6/9. He stated that he was clearing brush in a blind curve so
drivers could see past the curve. Mr. Hatfield testified that there was a power
line amongst the brush that he was cutting that he did not see, and that when
he cut the brush it hit the power line. Mr. Hatfield stated that he and Mr.
Bailey then went to one of the neighboring houses where
W.Va.] REPORTS
STATE COURT OF CLAIMS 233
they made a telephone call to respondent’s main office in Pineville to inform
them that a power line had been hit and the office needed to notify American
Electric Power Company. After calling in the incident, Mr. Hatfield stated that
he and Mr. Bailey left the area for the day. When they arrived at their base of
operations, they again called respondent’s main office in Pineville to make
sure that American Electric Power Company had been called. Mr. Hatfield
testified that other than making the telephone call he had not done anything
else regarding the incident.
Wayne Bailey, a craft worker II for respondent in Wyoming County, testified
that he had been mowing about 100 feet in front of Mr. Hatfield when Mr.
Hatfield contacted him using his CB radio. Mr. Bailey stated that he turned
around and saw smoke coming from the power pole that the downed power line was
connected to. He reiterated the fact that they had informed respondent’s main
base of the incident but that after that they had done nothing more. Mr. Bailey
stated that in the training he had received in the operation of the equipment
he would be using while working for respondent, he had been told that in the
case where a power line was hit he was to contact his headquarters and to make
sure that everything was taken care of before he leaving the scene.
Oliver Stewart, county administrator for respondent in Wyoming County, stated
that he first became aware of the situation regarding a downed power line when
a clerk informed him that she had been called by one of the mower operators
about it. He stated that he was told American Electric Power Company had been
contacted, but he further stated that he did not check with American Electric
Power Company himself.
In the instant case, the Court is of the opinion that respondent’s employees
were negligent in leaving the area where a live power line was down before a
crew arrived to assess the situation. While the employees who accidentally
knocked over the power line did act appropriately in contacting their
headquarters about the incident, respondent should have made sure that someone
was at the scene so that no one would be injured by this live power line. Thus,
the Court finds respondent negligent and claimant may make a recovery for the
damages of$ 1,150.00 for his dog, $185.00 for the tracking system and $450.00
for the stud fee, for total of$1,785.00.
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 the claimant in
this claim in the amount of$1,785.00.
Award of $1,785.00.
OPINION ISSUED MARCH 28, 2005
FORREST G. FIELDS
VS.
DIVISION OF HIGHWAYS
(CC-03-33 8)
Claimant appeared pro Se.
Xueyan Zhang, Attorney at Law, for
respondent.
234 REPORTS
STATE COURT OF CLAIMS [W.Va.
PER CURIAM:
Claimant brought this action for property damage to his real estate which he
alleges occurred as a result of respondent’s negligent maintenance of a
drainage system. Claimant’s residence is located in Roane County. The Court is
of the opinion to deny the claim for the reasons more fully stated below.
Claimant’s property is adjacent to County Route 19/8, locally known as Mount
Hope Road. The incident giving rise to this claim occurred on June 13, 2003. A
heavy rainfall occurred around June 13, 2003, which resulted in part of
claimant’s property slipping and giving way which is the basis for the claim
herein. Mr. Fields asserts that at some time prior to June 13, 2003, respondent
conducted a project on County Route 19/8 and removed a ridge of dirt from the
side of the road. Claimant alleges that it was this action by respondent that
channeled more water onto his property, as the water from the roadway now
flowed down a hillside and in front of the house on his property. Mr. Fields
stated that there were two slips that occurred on June 13, 2003. The first slip
occurred adjacent to the roadway, causing dirt and debris to slip onto the
driveway to his house. This slip along the road had occurred previously and had
been there for nearly 20 years. Mr. Fields testified that respondent had
previously attempted to repair this slip on several occasions. Claimant
testified that this slip blocked off the drainage ditch alongside his driveway
which caused more water to flow into the front lawn. The second slip occurred
in the front lawn of his property. Claimant asserts that due to the actions of
respondent in removing the mound of dirt from the side of County Route 19/8,
more water has flowed onto this section of his property, causing part of the
lawn to slip. Mr. Fields testified that prior to the removal of the ridge of
dirt by respondent there had been no slippage problems with the front lawn of
his property. As a result of the land slip on his property, claimant alleged
damages in the amount of $3,500.00 for the cost of repairing the damage that
was done to his property.
Sheila Chapman testified on behalf of the claimant that she would help take
care of claimant’s property with her sister and brother-in-law when Mr. Fields
was not at the property. Ms. Chapman stated that she tried to help the claimant
by contacting respondent about the slip in the road. She was also at the
property shortly after the slip in the front lawn occurred. Ms. Chapman
testified that the slip came after a heavy rain. She also stated that she
witnessed water flowing from the hill from County Route 19/8 around the date of
the incident involved herein.
The position of the respondent is that it was not negligent in the maintenance
of the drainage system on County Route 19/8. Respondent conducted work on the
shoulders and ditches of County Route 19/8 on August 27, 2002. Lee Thorne,
Assistant District Engineer forMaintenance for District Three, which includes
Roane County, testified that he is in charge of the slip repair program for District
Three. Mr. Thome stated that respondent has been aware of the slip along County
Route 19/8 for some time. He stated the slip is approximately 85 feet long. Mr.
Thome testified that in District Three the slip on County Route 19/8 was slip
number 88 on the list of slips to repair in the district and that it was number
four on the list of slips to repair in Roane County. However, Mr. Thome stated
that there is no design as of yet for the repair of this slip. According to Mr.
Thome, this was a relatively minor slip and that it is simply a matter of
funding and setting priorities based on traffic flow to determine which slips
are repaired. He also
W.Va.] REPORTS
STATE COURT OF CLAIMS 235
stated that the soil types in the area of claimant’s property are prone to
slips, especially when there is a lot of rain.
Elizabeth Lilly, a professional engineer employed by respondent, conducted an
on-site inspection of claimant’s property. Ms. Lilly testified that she
observed the natural drainage pattern of the land. She opined that regardless
of whether the ditch line along the driveway of claimant’s property was
blocked, water would flow into the same area of claimant’s front lawn due to
the natural drainage in that area. Ms. Lilly testified that there was a drain pipe
that led from the ditch line adjacent to the driveway to the area of the front
lawn that slipped. She stated that due to the natural drainage pattern and the
steepness of the driveway, the majority of the water would flow down the
driveway and into the same location in the front lawn regardless of whether it
flowed in the ditch line alongside the driveway or if it flowed onto the
driveway because the ditch line was blocked by debris. Ms. Lilly stated that
the slip in the front lawn was in the area where the water came out of the
drain but much wider, which was probably attributable to a few years of
excessive rain. She also stated that this area was prone to slips in the land
due to the type of soil in the area. 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. 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. ofHighways, 21 Ct. Cl. 97 (1996).
In the instant claim, claimant has failed to establish that respondent
maintained the drainage structures on County Route 19/8 in Roane County in a
negligent manner. The terrain in this area of County Route 19/8 forms a natural
drainage area onto claimant’s property. The Court concludes from all the
testimony and evidence that the water that flowed into claimant’s front lawn
would have flowed into that same area regardless of whether the ditch line
alongside the driveway was blocked or not. Consequently, there is insufficient
evidence ofnegligence 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 26, 2005
DANIEL BRYANT and DEBRA BRYANT
VS.
DIVISION OF HIGHWAYS
(CC-04-023)
Claimant appearedpro Se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURJAM:
236 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claimants brought this action for property damage to their home which they
allege occurred as a result of respondent’s negligent maintenance of a drainage
system. Claimants’ residence is located at 200 Sidney Street, Beckley, Raleigh
County. Sidney Street is a road maintained by respondent. The Court is of the
opinion to deny the claim for the reasons more fully stated below.
Claimants’ property is located on Sidney Road in Beckley. There were several
incidents that occurred that gave rise to this claim. Heavy rainfalls occurred
on November 12. 2003, November 19,2003, and in June and October 2004, which
resulted in flooding of claimants’ garage and basement which is the basis for
the claim herein. Debra Bryant stated that they bought the property in March 1998.
She testified that they had not had problems with flooding prior to the
November 2003 floods. Ms. Bryant stated that their residence is below the road
level and that there is a drain at the bottom of their driveway. She testified
that the drain is about four to six inches wide and four to six inches deep.
Claimants assert that water flows from Cochran Street onto Sidney Street where
it then it flows from Sidney Street onto their driveway. The drain at the
bottom of their driveway is not large enough to accommodate all of the runoff
during heavy rainfalls. During such heavy rainfalls the water accumulates
around the drain where it seeps into the garage and into the basement. Ms.
Bryant stated that approximately an inch or two ofwater would accumulate in the
basement. The water also flows around the side of the house washing dirt away
from the foundation of the house as it flows to the backyard. Ms. Bryant
testified that they installed a curb at the top of the driveway to help prevent
water from flowing down their driveway, but that this only slows the water
rather than stopping any water from flowing onto the driveway. The water has
caused damage to the foundation of the house as well as the problems with water
in the basement and garage.
Claimants contend that respondent has failed to provide an adequate drainage
system along Cochran Street and Sidney Street. Claimants also testified that
there is water that flows into their driveway from the property on the opposite
side of Sidney Street from their property that is at a higher elevation. Daniel
Bryant testified that in October 2003 construction began on three new houses on
the hillside above and across from their property. That source of water flows
down the hillside from the lots of the newly constructed houses and through the
backyards of other houses on a street perpendicular to Sidney Street whenever
there is a heavy rainfall. The path of the flowing water was depicted in
photographs submitted in evidence
The position of the respondent is that it was not negligent in the maintenance
of the drainage system on Sidney Street in Beckley. Joe Adkins, foreman for
respondent in Raleigh County, testified that he first learned of claimants’
flooding problems in November 2003 when Ms. Bryant called to report the
problem. Mr. Adkins stated that Sidney Street is a low priority, single lane
road. He testified that in November2003 there had been floods in the Beckley
area. He further stated that between October 2003 and October2004 there had
been no major projects undertaken by respondent in this area and that only
basic maintenance such as patching has been performed by respondent.
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. Haughtvs. Dept. ofl-Jighways, 13 Ct. Cl. 237 (1980). In claims
of this nature, the Court
W.Va.] REPORTS
STATE COURT OF CLAIMS 237
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 establish that respondent
maintained the drainage structures on Sidney Street in Raleigh County in a
negligent manner. The evidence establishes that water flows onto claimants’
property not only from the State maintained roadways but also from private
property located across the street from claimants’ property on the hillside
where new construction is ongoing. There are more sources of the water flowing
on Sidney Street than just that from the road itself. Consequently, there is no
evidence of negligence on the part of respondent upon which to base an award.
While there may be other remedies available to claimants to resolve the root
source ofthe water flowing onto their property, there is no remedy that this
Court may award in this claim.
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.
238 REPORTS STATE
COURT OF CLAIMS [W.Va.
REFERENCES
Court of Claims
BERMS —
See also Comparative Negligence and
Negligence
— BRIDGES
— CONTRACTS
— COMPARATWE 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
— 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
— WEST VIRGINIA UNIVERSITY
The following is a compilation of head notes representing decisions from
July 1, 2003 to June 30, 2005. 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 Nelience and
Nelience
MARTIN VS. DIVISION OF HIGHWAYS
Claimant brought this action for damage to his vehicle which occurred when he
was operating his vehicle northbound on State Route 20 in Upshur County and the
vehicle struck a hole on the edge of the road. The Court is of the opinion that
respondent had constructive notice of the hole and the broken edge of the
pavement at the location of this incident. Chapman v. Dept. of Highways, 16
Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). The
evidence established that there was a hole on the
W.Va.] REPORTS
STATE COURT OF CLAIMS 239
benn that had eroded the pavement and extended well into and beyond the white
edge
line. Award of $50.21 p. 69
MCCOY VS. DiVISION OF HIGHWAYS (CC-03-239)
Where claimant’s vehicle struck a drainage grate while he was driving onto
W.Va. Route 10, Logan County. The Court held that claimant failed to establish
that respondent is responsible for the drain. Claim disallowed p. 175
MCNEMAR VS. DIVISION OF HIGHWAYS (CC-03-557)
Claimant’s vehicle struck a hole on W.Va. Route 58, Harrison County. The Court
concluded that respondent had notice of the hazardous condition, and had
adequate amount of time to take corrective action. Thus, respondent was
negligent. Award of
$500.00 p. 182
PERRINE VS. DIVISION OF HIGHWAYS (CC-03-255)
Claimant brought this action for damage to her vehicle which occurred when she
was operating her vehicle on State Route 41 in Persinger, Nicholas County, and
the vehicle struck a large hole in the road. The size of the hole and its
location in the berm leads the Court to conclude that the respondent had
constructive notice of this hole.
Award of $491.92 p. 78
RUNYON VS. DIVISION OF HIGHWAYS (CC-02-450)
Claimant brought this action for damage to his vehicle which occurred when he
was operating his vehicle on County Route 10 in Wyoming County and he was
forced to drive onto the berm of the road to avoid an oncoming truck. When he
drove onto the berm, his vehicle struck a large hole. The evidence established
that County Route 10 at the location of this incident presented a hazardous
condition to the traveling public.
Award of $500.00 p. 96
SEARS VS. DIVISION OF HIGHWAYS (CC..03-514)
Claimant’s vehicle struck a portion of broken blacktop on the edge of the road
and berm while she was traveling on W. Va. Route 41 near Summersville, Nicholas
County. The Court made an award of $930.68 p. 215
SHIELDS VS. DIVISION OF HIGHWAYS (CC-04-089)
Claimants’ vehicle struck a portion broken blacktop along the berm of the road
while Pamella Shields was traveling on W. Va. Route 41 near Craigsville,
Nicholas County. The Court made and award of $500.00 p. 223
WEST VS. DIVISION OF HIGHWAYS (CC-02-303)
Claimants brought this action for damage done to their vehicle which occurred
when their son, Klint West, was driving their vehicle southbound on 1-79 near
Bridgeport, Harrison County, and the vehicle struck numerous large holes on the
berm of the highway. The Court is of the opinion that the evidence established
that 1-79 at the location of this incident presented a hazardous condition to
the traveling public. Compton v. Division of Highways, 21 Ct. Cl. 18
(1995). Liability may ensue when a motorist is
240 PiPORTS
STATE COURT OF CLAIMS [W.Va.
forced onto the berm in an emergency or otherwise necessarily uses the berm of
the highway and it fails. Sweda v. Dept. of Highways, 13 Ct. Cl.
249(1980). Award of
$500.00 p.13
BRIDGES
DOMENICO VS. DIVISION OF HIGHWAYS (CC-03-201)
Claimant brought this action for damage to his vehicle which occurred when he
was traveling westbound over a bridge on Route 9 near Hedgesville, Berkeley
County, and his vehicle struck a large hole in the road. The Court held that
respondent owes a duty to motorists to exercise reasonable care and diligence
in maintaining roads under all circumstances. Hobbs v. Dept. of Highways, 13
Ct. Cl. 27 (1979); Lewis v. Dept. of Highways, 16 Ct. Cl. 136 (1985); Adkins
v. Div. Highways, 21 Ct. Cl. 13 (1995). p. 54
FRAZIER VS. DIVISiON OF HiGHWAYS (CC-02-493)
The parties stipulated that claimants’ vehicle was damaged when it struck an
ice covered bridge on 1-79 in Big Otter, Clay County. The Court reviewed the
claim and made an award to claimant based upon the stipulation p. 25
GUNNO VS. DIVISION OF HIGHWAYS (CC-03-077)
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent. Claimant was traveling across the Coal River
Bridge on Route 60 in Kanawha County when her vehicle struck a hole. The Court
found the respondent to be negligent in its maintenance of Route 60 in Kanawha
County; however, claimant failed to provide a copy of her insurance declaration
of coverage to determine
her deductible. Claim disallowed p. 159
HAYNES VS. DIVISION OF HIGHWAYS (CC-03-049
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent. Claimant was traveling across the Amandaville
Bridge on Route 60 in St. Albans, Kanawha County, when her vehicle struck a
hole in the road causing damage. The Court held that respondent was negligent
in its maintenance of the Amandaville Bridge on Route 60 in Kanawha County;
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. Award of $250.00. p.149
JONES VS. DIVISION OF HIGHWAYS (CC-02-378)
Claimant brought this action for damage to his vehicle which occurred when he
was operating his vehicle northbound on 1-79 near Fairmont in Marion County and
it struck a hole located on a bridge. in the present claim, the Court is of the
opinion that claimant failed to establish any negligence on behalf of the
respondent p. 109
JORDAN VS. DIVISION OF HIGHWAYS (CC-03-296)
W.Va.] REPORTS
STATE COURT OF CLAIMS 241
The parties stipulated that claimant’s vehicle was damaged when it struck a
loose steel joint while he was traveling on the Elk River Bridge. The Court
made an award of
$153.70 p.205
MCJUNKJN, M.D. VS. DIVISION OF HIGHWAYS (CC-02-424)
Claimants brought this action for damage to their vehicle which occurred when
claimant Brittain McJunkin M.D., was operating their vehicle on 1-77 near
Charleston, Kanawha County, and the vehicle struck a metal expansion joint
protruding between the road and the bridge. The Court is of the opinion that
claimants have failed to establish by a preponderance of the evidence that
respondent knew or should have known that the expansionjoint on 1-77 was in a
state of disrepair at the time of the accident. Chapman v. Dept. of
Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct.
Cl. 8
(1985). Claim disallowed p. 66
MURPHY VS. DIVISION OF HIGHWAYS (CC-0l-188)
Claimant brought this action as Administratrix of the Estate of Scott Chariton,
her son, who died in an incident that occurred when Scott Chariton was
operating his motorcycle on U.S. Route 250, Wetzel County, and he allegedly
encountered a bump on a bridge near Hundred causing him to lose control of his
motorcycle. The Court held that claimant failed to establish that the
respondent committed any act or omission in its maintenance of the road and
bridge in question. Claim disallowed p. 209
PITTS VS. DIViSION OF HIGHWAYS (CC-00-413)
Claimant was injured when a piece of concrete fill from the interstate bridge
over Norwood Road and struck him on the head as he was walking underneath the
bridge. Respondent acknowledged that it had at least constructive notice that
pieces of concrete had fallen from the interstate bridge prior to the
claimant’s incident. Respondent and claimant agreed to settle this claim for
claimant’s out-of-pocket medical expenses and for claimant’s past and future
pain and suffering resulting from his injuries. Award of
$9,000.00 p. 95
SHAFFER VS. DIVISION OF HIGHWAYS (CC-00-490)
Claimant brought this action for personal injuries and damage to her vehicle
which occurred when she was operating her vehicle on the Route 60 bridge that
crosses Coal River in St. Albans, Kanawha County, and a portion of the pavement
gave way creating a large hole which the vehicle struck Respondent stipulated
to liability in this claim. Claimant incurred medical expenses as a result of
the injuries sustained in this incident. Claimant recovered medical expenses
and special damages including the
insurance deductible p. 37
YANCHAK VS. DIVISION OF HIGHWAYS (CC-03-506)
Claimants’ vehicle struck a hole on bridge on 1-79 near Fairmont, Marion
County. The size of the hole and the time of the year in which this incident
occurred lead the Court to conclude that respondent had constructive, if not
actual, notice of this
hazardous condition. Award of $229.06 p. 187
242 REPORTS STATE
COURT OF CLAIMS [W.Va.
CONTRACTS
VIARS VS. DIVISION OF NATURAL RESOURCES (CC-03-I 89)
Claimant brought this action for damages resulting from an alleged breach of
contract for the operation of a diorama and show at the Cass Scenic Railroad
State Park. The Court held that respondent wrongfully withheld fifteen percent
from the amount that it paid claimant for the fee per train ride ticket sold.
In addition, the Court awarded an amount for the work claimant performed in
opening the diorama for the month of May 2001. However, claimant also alleged
he was forced to sell the diorama for less than it was worth; however, this
portion of the claim was disallowed. Award of$19,813.65. p.225
COMPARATWE NEGLIGENCE - See
also Berms; Falling Rocks and Rocks; Nelience & Streets and Highways
BROWN VS. DIVISION OF HIGHWAYS (CC-01-213)
Claimants brought this action for personal injuries received by claimant James
Brown, for loss of consortium suffered by claimant Angela Brown, his wife, and
for loss of comfort suffered by his children when claimant James Brown had an
accident while operating a motorcycle on Tony’s Branch Road in Boone County.
The Court held that respondent was negligent in its maintenance of Tony’s
Branch Road. See also Hale v. Dept. of
Highways, II Ct. Cl. 93 (1976), Withrow v. Dept. of Highways, 17 Ct. Cl. 47 (1987), Boyle v. Division ofHighways, 19
Ct. Cl. 103 (1992). Tn addition, the Court held that claimant James Brown bears
331/3
of the responsibility for the accident
herein and
the injuries resulting therefrom p. 31
BUNTING VS. DIVISION OF HIGHWAYS (CC-03-055)
Claimant brought this action for
damage to her vehicle which occurred when she was traveling on County Route
50/9 in Smithburg, Dodddridge County, and the vehicle struck a large hole in
the road. The Court held that the hole in the road on County Route 50/9 at the
location of this incident constituted a hazardous condition to the traveling
public; however, the Court is also of the opinion that claimant knew about the
hole on County Route 50/9 and she could have avoided the defect. The Court found
that claimant failed to act as a reasonably prudent driver under the
circumstances, and further, that claimant’s negligence in this claim is equal
to or greater than the respondent’s. Bradley
v. Appalachian Power Company, 163 W.
Va. 332, 256 5. E. 2d 879 (1979). Claim
disallowed p. 136
HIGGINBOTHAM VS. DIVISION OF HIGHWAYS (CC-02-261)
Claimant’s vehicle sustained damage when their vehicle struck a boulder on the
edge of Floradale Drive near Cross Lanes in Kanawha County. The Court held that
respondent had at lease constructive if not actual notice of the rocks at the
edge of the road. In addition, the Court determined that claimant was 40%
negligent for the incident
that occurred. Award $1199.18 p. 10
DAMAGES
W.Va.] REPORTS
STATE COURT OF CLAIMS 243
ADKINS VS. DIVISION OF HIGHWAYS (CC-03-265)
The parties stipulated that claimant, Thorns A. Adkins 11 was traveling
westbound on 1-64, Kanawha County, from Charleston to Cross Lanes, when he came
upon a section of highway that was under construction. The difference in the
height of the roadway caused claimants’ vehicle to sustain damage. The Court
made an award of
$250.00 p. 174
FRIEND VS. DIVISION OF HiGHWAYS (CC-02-425)
Claimaiit’s vehicle was damaged when it struck a piece of metal in the road.
Respondent admits the validity and amount of the claim p. 66
WATTS VS. DIVISION OF HIGHWAYS (CC-01-187)
Claimant brought this action for property damage to her home located in Dunbar,
Kanawha County, from a construction project on 1-64 on October 2000. The Court
held that the claimant did not establish that the damage to her home was caused
by any specific acts or omissions on the part of the respondent. Louk v.
Isuzu Motors, Inc., 198 W. Va. 250,479 S.E. 2d 911 (1996). In addition, it
would be mere speculation for the Court to assume that respondent negligently
induced vibrations that proximately caused the damage to claimant’s property. Mooney
v. Dept. of Highways, 16 Ct. Cl. 84 (1 98). 16
WHTTT VS. DIVISION OF HIGHWAYS (CC-03-3 15)
The parties stipulated that claimant was traveling on Route 2 in Flat Rock,
Mason County when her vehicle struck a large hole in the road causing damage.
Respondent agreed that the amount of damages as put forth by the claim was fair
and
reasonable. Award of $220.00 p. 175
DRAINS and SEWERS
ANDREWS VS. DIVISION OF HIGHWAYS (CC-03-1 53)
Claimants brought this action to recover costs associated with water damage to
her home and personal property allegedly due to the negligent maintenance of
the drainage system along Hamilton Addition Road and Manor Drive in White
Sulphur Springs, Greenbrier County. The Court is of the opinion that the
proximate cause of the damage to claimant’s property was respondent’s failure
to maintain an adequate drainage system for the water flowing from Hamilton
Addition Road and Manor Drive. Award:
$1,500.00 p. 117
BEDDOW VS. DIVISION OF HIGHWAYS (CC-03-403)
Claimants are the owners of two rental units which make up a duplex apartment
building on Riddle Avenue in Morgantown, Monongalia County, which sustained
damages when water flowed from the ditch line across Riddle Avenue and flooded
the two units. The Court concluded that claimants established that respondent
was negligent in its maintenance of the ditch line on Riddle Avenue and this
negligence was the proximate cause of the damages to claimants’ property. Ashworth
v. Div. of Highways,
244 REPORTS
STATE COURT OF CLAIMS [W.Va.
19 Ct. Cl. 189 (1993); Orsburn v. Div. of I-Iighways, 18 Ct. Cl. 125
(1991). Award
$7,373.38 p. 111
BRYANT VS. DIVISION OF HIGHWAYS (CC-04-023)
Claimants brought this action for property damage to their home which they
allege occurred as a result of respondent’s negligent maintenance of its
drainage system. The Court determined that the water flowing onto claimants’
property was the result of many factors including the development of the
property above claimants’ property for which there was inadequate drainage
provided. Claimants did not establish that respondent was not negligent in its
maintenance of its drainage system in this area. Claim
disallowed p. 234
DEPTO VS. DIVISION OF HIGHWAYS (CC-02-056)
Claimants brought this action to recover costs incurred from water damage to
their real estate and personal property allegedly due to the negligent
maintenance of the drainage system along County Route 86 in Marshall County.
The Court is of the opinion that the proximate cause of the damage to
claimants’ property was respondent’s failure to maintain an adequate drainage
system for the water flowing from County Route 86. The evidence established
that respondent knew of the drainage problem at this location. Ashworth v.
Div. of Highways, 19 Ct. Cl. 189 (1993); Orsburn v. Div. of Highways, 18
Ct. Cl. 125 (1991).
Award of $8,337.30 p.88
FIELDS VS. DIVISION OF HIGHWAYS (CC-03-338)
Claimant brought this action for property damage to his real estate which he
alleges occurred as a result of respondent’s negligent maintenance of a
drainage system.
Claim disallowed p. 232
HUDNALL VS. DIVISION OF HIGHWAYS (CC-02-350)
Claimants brought this action to recover costs incurred from water damage to
their real estate and personal property allegedly due to the negligent
maintenance of the drainage system along County Route 26, in Oakvale, Mercer
County. The Court is of the opinion that the proximate cause of the damage to
claimants’ property was respondent’s failure to maintain an adequate drainage
system for surface water flowing from County
Route 26. Award of $19,999.99 p. 62
MARVIN CHAPEL CHURCH VS. DIVISION OF HIGHWAYS (CC-02-507)
Claimant brought this action to recover costs associated with water damage to
its property which it alleges is due to respondent’s negligent maintenance of
the drainage system along U.S. Route 220 in Hampshire County. The Court is of
the opinion that claimant established that respondent knew or should have known
that its construction work on and around U.S. Route 220 created an inadequate
drainage system for water flowing from U.S. Route 220, and as a result this was
the proximate cause of the damage to claimant’s property. Ashworth v. Div.
of Highways, 19 Ct. Cl. 189 (1993); Orsburn v. Div. of Highways, 18
Ct. Cl. 125 (1991). Award of $12,695.60 p. 89
W.Va.] REPORTS
STATE COURT OF CLAIMS 245
MERCER VS. DIVISION OF HIGHWAYS
(CC-04-298)
Claimant brought this action for vehicle damage which occurred as a result of
her vehicle striking a culvert while she was traveling on W. Va. Route 5/4 near
Mannington, Marion County. The Court is of the opinion that respondent was
negligent in maintaining the culvert at the time of the incident and is thus
liable for the damages which proximately flow from its inadequate protection of
the traveling public in this
specific location. Award of$ 160.55 p. 167
WILSON VS. DIVISION OF HIGHWAYS (CC-00-432)
Claimants brought this action to recover for damages to their property as the
alleged result of respondent’s negligent design and maintenance of the drainage
system on U.S. Route 119, near Morgantown, Monongalia County. Claimants failed
to establish that respondent maintained its drainage structures on the west
side of U.S. Route 119 in Monongalia County in a negligent manner. Haught
vs. Dept. of Highways, 13 Ct. Cl.
237. Claim disallowed p. 165
FALLING ROCKS AND ROCKS See also Comparative Nelience and Nelience
BOBO VS. DIViSION OF HIGHWAYS (CC-02-351)
Claimant brought this action to recover for damages to her vehicle which
occurred when she was traveling between Moorefield and Petersburg in Grant
County on U.S. Route 220 and her vehicle struck a rock in the road. The Court
found that there is no evidence of negligence on the part of respondent upon
which to base an award.
Claim disallowed p. 121
DILLS VS. DIVISION OF HIGHWAYS (CC-03-023)
Claimant brought this action for damage to his vehicle which occurred when he was
operating his vehicle on State Route 2 between New Martinsville and Moundsville
in Marshall County at a large rock fell from a hillside striking his car. The
Court is of the opinion that respondent had constructive notice of the rock
fall hazards in the area at issue. While the “southern narrows” portion of
highway at issue does not present as great of a risk for rock falls as “the
narrows,” it is nonetheless a known rock fall area. Award
$2,065.00 p. 74
GLASS VS. DIVISION OF HIGHWAYS (CC-02-3 10)
Claimant brought this action for damages to his vehicle which occurred when he
was driving his vehicle on Route 55 from Moorefield to Baker in Hardy County
and his vehicle struck a rock in the road. The Court held that there is no
evidence of negligence on the part of respondent upon which to base an award. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways,
16 Ct. Cl. 8 (1985).
p.123
GOINS VS. DIVISION OF HIGHWAYS (CC-02-164)
Claimant brought this action for damage to his vehicle which occurred when he
was traveling on County Route 41 near Quiimimont in Fayette County and his
vehicle
246 REPORTS
STATE COURT OF CLAIMS [W.Va.
struck numerous large rocks in the travel portion of the road. The Court held
that claimant failed to establish sufficient evidence that respondent was
negligent in maintaining the road at this location. Claim disallowed p. 120
GREAVER VS. DIVISION OF HIGHWAYS (CC-02-417)
Claimant brought this action for damage to her vehicle which occurred when she
was operating her vehicle on Old Route 50 near West Union, Doddridge County,
and the vehicle struck a large rock in the road. This Court has consistently
held that the unexplained falling of a rock or rock debris on the road surface
is insufficient to justify an award. Mitchell v. Division of Hi ghways, 21
Ct. Cl. 91(1996); Hammond v. Dept. of Highways, 11 Ct. Cl. 234 (1977).
Claimant failed to establish that respondent had not taken adequate measures to
protect the safety of the traveling public from rock falls at the
location of this incident. Claim disallowed p. 62
HIGGTNBOTHAM VS. DIVISION OF HIGHWAYS (CC02-26l)
Claimant’s vehicle sustained damage when their vehicle struck a boulder on the
edge of Floradale Drive near Cross Lanes in Kanawha County. The Court held that
respondent had at lease constructive if not actual notice of the rocks at the
edge of the road. In addition, the Court determined that claimant was 40%
negligent for the incident
that occurred. Award $1,199.18 p.62
H1SAM VS. DIV1SION OF HIGHWAYS (CC-02-392)
Claimants brought this action for damage to their vehicle which occurred when
claimant Deborah Hisam was operating their vehicle on State Route 2 near
Sistersville in Tyler County and a large rock fell from a hillside and struck
their vehicle. Claimants failed to establish that respondent did not take
adequate measures to protect the safety of the traveling public at the location
of this incident on State Route 2. Claim disallowed.
p.46
HUNLEY VS. DIV1SION OF HIGHWAYS (CC-03-274)
Claimant brought this action for damage to her vehicle which occurred when she
was operating her vehicle on U.S. Route 52 on Coaldale Mountain in Mercer
County and a large rock fell from the hillside striking the windshield. The
Court found that respondent took reasonable steps to insure the safety of the
traveling public in this claim. Adkins v. Sims, 46, S.E. 2d 81(130 W.
Va. 645, 1947). Claim disallowed. p. 135
MCBRIDE VS. DIVISION OF HIGHWAYS (CC-02-216)
Claimant brought this action for damage to her vehicle which occurred when her
son, Mark McBride, was driving the vehicle on Route 20 in Summers County near
the Bluestone Dam when rocks fell from the hillside adjacent to the road and
struck the vehicle causing damage. Claimant failed to establish that respondent
did not take adequate measures to protect the safety of the traveling public on
Route 20 in Summers County. Adkins v. Sims, 46 S.E. 2d 811(130 W. Va.
645, 1947). Claim disallowed.
p.133
W.Va.] REPORTS
STATE COURT OF CLAIMS 247
MULLINS VS. DIVISION OF HIGHWAYS (CC-03-066)
Claimants brought this action for vehicle damage which occurred as a result of
Kathy Mullins’ vehicle striking a rock while traveling northbound on State
Route 10 in Logan County. The Court held that claimants have not established
sufficient evidence that respondent failed to take adequate measures to protect
the safety of the traveling public on State Route 10 in Logan County. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986);Prittv.
Dept. of Highways, 16 Ct. Cl. 8(1985).
Claim
disallowed p. 158
PECK VS. DIVISION OF HIGHWAYS (CC-03-168)
Claimants brought this action for personal injuries and property damage which
occurred when she was traveling north on State Route 2 between Glendale and
McMechen in Marshall County and her vehicle struck a large rock in the road.
The Court is of the opinion that respondent had actual knowledge of a hazardous
condition at the location of this incident on State Route 2 in Marshall County.
Chapman v. Dept. of Highways, 16 Ct. Cl. 8 (1985); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). 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 v.
Division of Highways, 21 Ct. Cl. 15
(1995). This area on State Route 2 between Glendale and McMechen referred to as
“the narrows” is a section of highways known for dangerous rock falls which are
a hazard to the traveling public. Foster
v. Division of Highways, 23 Ct. Cl.
248 (2000).
Award of$l,386.38 p.71
SNODERLY VS. D1V1SION OF HIGHWAYS (CC-03-065)
Claimant brought this action for damage to his vehicle which occurred when he
was traveling south on U.S. Route 250 near Fairmont, Marion County, and the
vehicle was struck by a large rock. The Court is of the opinion that claimant
did not establish that respondent had notice of a potential hazardous condition
at this location. Copen V. Division ofHighways, 23 Ct. Cl. 272(2001). In addition, respondent did not
have notice of this particular rock fall until after it had occurred;
therefore, respondent did not have a reasonable amount of time to take
corrective actions. Alkire v. Division
of Highways, 21 Ct. Cl. 179 (1997);Pritt v. Dept. ofHighways, 16 Ct. Cl, 8(1985). Claimdisallowed.
p.82
SOMMERVILLE VS. DIV1SION OF HIGHWAYS (CC-04-140)
Claimant’s property was damaged as a result of her fence being struck by a
boulder adjacent to U.S. Route 19 in Clarksburg, Harrison County. The evidence
failed to establish that respondent had actual or constructive knowledge of the
potential for rock falls in this area. Coburn
v. Dept. of Highways, 16, Ct. Cl.
68(1985).
p. 172
STANDIFORD VS. DIVISION OF HIGHWAYS (CC-03-250)
Claimant’s vehicle struck rocks while he was traveling northbound on U.S. Route
119 in Kanawha County. The Court held that there was no evidence of negligence
on the part of the respondent. Claim disallowed. p. 207
248 REPORTS STATE
COURT OF CLAIMS [W.Va.
TOLER VS. DIVISION OF HIGHWAYS (CC-03-017)
Claimants brought this action for damage to their vehicle which occurred when
claimant Donna Toler was driving west on Route 99 in Raleigh County, and the
vehicle struck rocks in the roadway. In the present claim, claimants have not
established by a preponderance ofthe evidence that respondent failed to take
adequate measures to protect the safety of the traveling public on Route 99 in
Raleigh County._Adkins v. Sims, 46 S.E. 2d 811 (W. Va. 1947). Claim disallowed p. 138
WRIGHT VS. DIVISION OF HIGHWAYS (CC-04-2l 1)
Claimant’s vehicle struck rocks while she was traveling on State Route 2 in the
Glendale area, also known as “the narrows,” Marshall County. The area on State
Route
2 is a section of highway known for dangerous rock falls. See Branicky vs. Div. of
Highways, 24 Ct. Cl. 273 (2003); Cusick vs. Div. of Highways, 24 Ct. Cl. 216 (2002);
Hall vs. .Div. of Highways, 24 Ct. Cl. 212(2002); Foster vs. Div. of Highways, 23
Ct. Cl.
248 (2000). Award of $842 p. 198
MOTOR VEHICLES
RENNER VS. DIVISION OF MOTOR VEHICLES
(CC-03..090)
Claimant brought this action for expenses incurred when respondent wrongfully
suspended his motor vehicle driver’s license, causing his car to be impounded.
The Court made an award to him for these expenses. Award of
$100.00 p. 14
NEGLIGENCE - See also Berms Falling Rocks and Rocks & Streets and Highways ANTILL VS. DIVISION OF HIGHWAYS (CC-03-l56)
Claimant brought this action for vehicle damage which occurred when her vehicle
struck a patch of ice while she was traveling on County Route 62 in Alkol,
Lincoln County. The Court held there is no evidence of negligence upon which to
justify
an award p. 168
BEARD VS. DIVISION OF HIGHWAYS (CC-03-425)
Claimant’s vehicle was damaged while she was traveling on the exit ramp of
Interstate Route 81 located at or near Inwood, Berkeley County. Respondent
admitted the validity of the claim and that the amount is fair and reasonable.
Award $102.00 p. 46
BELL VS. DIVISION OF HIGHWAYS (CC-01-375)
The parties stipulated claimant was crossing Alternate Route 2, also known as
Main Street, near its intersection with 4th Street
in Wheeling, Ohio County, when she stepped into a hole causing her to fall. The
Court made an award based upon the
stipulation p.41
BERRY VS. DIVISION OF HIGHWAYS (CC-03-299)
W.Va.] REPORTS
STATE COURT OF CLAIMS 249
Claimant brought this action for damages to her vehicle which occurred on two
separate occasions when her vehicle struck the same hole in U.S. Route 19 in
Clarksburg, Harrison County. In the present claim, respondent established that
it had continuously treated the hole in .Route 19 which caused the damages to
claimant’s vehicle; however, respondent never took any steps to place a warning
sign. for the traveling public even though this particular hole was on a high
priority road in a residential area. Chapman vs. Dept. of Highways, 16
Ct. Cl. 103 (1986).
Award $50 0.00 p. 100
BLAiR VS. DIVISION OF HIGHWAYS (CC-03-286)
Claimant’s vehicle struck a hole on W. Va. Route 34 in Putnam County which was
under construction at the time of the incident. The Court held that respondent
has the duty to make sure that the contractor is protecting the traveling
public, and if it does
not, it is negligent. Award of $75.21 p. 178
BLAND VS. DIVISION OF HIGHWAYS (CC-04-065)
Claimant’s vehicle struck several pieces of steel rebar while his father was
driving the vehicle on the Chestnut Street exit ramp from U.S. Route 50 in
Harrison County. The Court found respondent negligent and made an award of
$1,002.43 p. 184
COPLEY VS. DIVISION OF HIGHWAYS (CC-01-189)
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimants and respondent. Claimant brought this action for an incident
which occurred when his wife, Teresa Copley and his son, Curtis H. Copley, were
traveling northbound on U.S. Route 52 near the town of Glen Hayes, Wayne
County. Curtis H. Copley was driving when the vehicle hydroplaned as a result
of rainwater pooling in substantial ruts or channels in the road and collided
with a Head Start bus. The collision resulted in the death of the passenger,
Teresa Copley, and minor injuries to Curtis H. Copley. The Court held that
respondent was negligent in its maintenance of U.S. Route 52 in Wayne County on
the date of this incident; that the negligence of respondent was the proximate
cause of the damages sustained to the claimants; and that the amount ofthe
damages agreed to by the parties is fair and reasonable.
Award p. 139
CRITCHFIELD VS. DIViSION OF HIGHWAYS (CC-02-397)
Claimant brought this action for damage to his motorcycle which occurred when
he was driving from a parking lot onto County Route 19/7 1 in Shinnston,
Harrison County. The motorcycle went into a drop inlet at the edge of the road causing
claimant to lose control of the motorcycle and resulting in an accident. The
Court held that respondent was negligent in its maintenance of the drop inlet
at issue in this claim and, further, that respondent is liable for the damage
to claimant’s motorcycle. Award
$2,928.03 p. 101
CUSTER VS. DIVISION OF HiGHWAYS (CC-04-320)
250 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claimant’s vehicle struck a hole while he was traveling on W. Va. Route 34 in
Putnam County. The Court made an award of $5,000.00 p. 196
DABIRI VS. DIVISION OF HIGHWAYS (CC-03-094)
Claimant brought this action for damage to his water line he alleges was caused
by respondent’s negligent failure to secure properly a portion of the hillside
adjacent to Route 11/1 also referred to as Bill’s Fork Road near Servia in
Braxton County. In the present claim, claimant failed to establish by a
preponderance of the evidence that respondent maintained County Route 11/1 or
the supporting hillside in a negligent
manner. Claim disallowed p. 59
DERRiNGER VS. DIVISION OF HIGHWAYS (CC-02-387)
Claimant brought this action for damage sustained to his vehicle when he drove
over a bump in a stretch of road that was in the process of being re-paved
along U.S. Route 19 between Oak Hill, Fayette County, and Beckley, Raleigh
County. There were no signs to warn the traveling public of the difference in
elevation of the roadway and this failure to warn constitutes negligence on the
part of the respondent. Award of $491.57.
p.156
DUNHAM VS. D1VISION OF HIGHWAYS (CC-02-470)
The parties stipulated that Timothy Dunham’s vehicle was damaged when the
driver of the vehicle, Gary F. Yingst, lost control while he was traveling on
Hudson Hill Road in Hancock County. The vehicle then went off the roadway, down
a hill and collided into a tree. The Court reviewed the claim and made an award
to claimants based
upon the stipulation p. 217
ERSKINE VS. DIVISION OF HIGHWAYS (CC-03-057)
The parties stipulated that claimant’s vehicle was damagedwhen it struck a hole
while she was driving across the Amandaville Bridge on Route 60 in St. Albans,
Kanawha County. The Court reviewed the claim and made an award to claimant
based upon the
stipulation p. 148
EWING VS. DIVISION OF HIGHWAYS (CC-00-437)
Claimant brought this action for damage to a tire on his vehicle which occurred
when he was traveling on 1-64 westbound at the Eisenhower Drive exit and his
vehicle went over a piece of metal laying on the highway. Claimant failed to
provide the Court with any basis to find negligence upon the respondent. Adkins
vs. Sims, 130 W. Va. 645;
46 S.E. 2d 81(1947) p. 132
FRIENDS OF BARBARA FLEISHCAUR AND COMMITTEE TO ELECT BASTRESS FOR JUSTICE VS.
DIVISION OF HIGHWAYS (CC-02-5 15)
This action was brought by claimants, political committees for the elections of
Barbara Evans Fleischauer and Robert M. Bastress Jr., during the 2000 election
campaigns. Claimants allege that certain political signs and wire frames were
destroyed
W.Va.] REPORTS
STATE COURT OF CLAIMS 251
by respondent without the knowledge or consent of the claimants. The signs
and wire frames were being stored in a building on Monongahela Boulevard in
Morgantown, Monongalia County. The building was condemned by respondent and
respondent admits that it was in possession of the particular building through
an Order entered by the Monongalia County Circuit Court and it admits that its
employees destroyed the political signs and wire frames which are the subject
matter of the claim. The Court found the respondent to be negligent when it
destroyed personal property without having attempted to contact either of the
claimants to ascertain the appropriateness of destroying that property. Award
to Friends ofBarbara Fleischaur: $1,500.00 and to Bastress for Justice:
$2,500 p. 114
KENNEDY VS. DIVISION OF HTGHWAYS (CC-04-292)
Claimant brought this action for damages which occurred when his dog was
electrocuted by a power line that had been severed during a mowing project in
Wyoming County. The Court determined that respondent’s employees negligently
left the scene without first ascertaining the live wire was being addressed
appropriately by the power company. The Court made an award of$1,785.00 p. 230
KEPLINGER VS. DIVISION OF HIGHWAYS (CC-04-068)
Claimant’s vehicle struck a hole while he was traveling on W. Va. Route 2 near
Follansbee, Brooke County. Respondent was held to be negligent in its
maintenance of the road. The Court made an award of $345.90 p. 195
KINTY VS. DIV1SION OF HIGHWAYS (CC-03-056)
Claimant brought this action for personal injuries which she suffered in an
incident that occurred at the entry to the parking building at BB&T Bank
which is immediately adjacent to Fairmont Avenue in Fairmont, Marion County.
The Court determined that the area where claimant broke her foot is the
responsibility of the property owner rather than the responsibility of the
respondent. Claim
disallowed p. 104
OSTROSKY VS. DIViSION OF HIGHWAYS (CC-04-106)
The parties stipulated that claimant’s vehicle struck a hole while he was
traveling on W. Va. Route 27 in Wellsburg, Brooke County. Award of
$144.29 p.200
PEVAVAR VS. DIVISiON OF HiGHWAYS (CC-04-129)
Claimant’s vehicle struck a hole while he was traveling on Route 40/8 in
Wheeling. Respondent was held to be negligent in its maintenance of the road.
The Court
made an award of$100.00 p. 194
REESE VS. DIVISION OF HIGHWAYS (CC-03-l 16)
Claimants brought this action for damage to their vehicle which occurred when
claimant Wallace Reese was traveling on State Route 20 in Wetzel County, and
the vehicle struck a hole in the road. The Court is of the opinion that the
respondent was
252 REPORTS
STATE COURT OF CLAIMS [W.Va.
acting diligently in treating the snow and ice hazards on the date of this
incident and was not negligent in its maintenance of the State Route 20 at the
time of claimant’s incident. Adkins v. Sims, 46 S.E. 2d 81. (W. Va.
1947). Claim
disallowed p. 52
ROBAYO VS. DIVISION OF HIGHWAYS (CC-02-330)
Claimant’s vehicle sustained damage when he was operating his vehicle on County
Route 60/4 in Barboursville, Cabell County, and the vehicle struck a large hole
on the edge of the road. The Court held that respondent had at least
constructive, if not actual, notice of the defect and a reasonable amount of
time to remedy the defect. Chapman v. Dept. of Highways, 16 Ct.Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct.Cl. 8 (1985). The claimant’s
award was limited to the amount of her insurance
deductible feature of $500 p. 20
SHREVE VS. DIVISION OF HIGHWAYS (CC-02-457)
Claimant, Betty Shreve, brought this action for damage to her vehicle which
occurred when she was traveling on County Route 9 in Wetzel County, and the
vehicle struck a hole on the edge of the road. In this claim, the evidence
established that respondent had, at the least, constructive notice of the hole
in the berm along County Route 9 at the location of this incident. Chapman
v. Dept. of Highways, 16 Ct.Cl. 103 (1986); Pritt v. Dept. of Highways, 16
Ct.Cl. 8 (1985). The respondent also has a duty to maintain the berm of a
highway in a reasonably safe condition for use when the occasion requires. Compton
v. Division of Highways, 21 Ct. Cl. 18 (1995). Award of
$198.21 p.48
STEPHENS VS. DIVISION OF HIGHWAYS (CC-03-174)
Claimants brought this action for damage to their chain link fence which
occurred when respondent plowed snow on State Route 10/1 in Martinsburg,
Berkeley County, onto claimant’s chain link fence knocking it to the ground.
The Court held that W. Va. Code § 15-5-11
bars claimants from any recovery due to the fact that employees of the
respondent were operating as duly qualified emergency service workers under
emergency circumstances. Claim disallowed p. 50
TOMBLIN VS. DIViSION OF HIGHWAYS (CC-03-181)
Claimant’s vehicle struck a metal object lying in the road while the driver,
Robert K. Tomblin, was traveling westbound on 1-64, under the Route 34 bridge,
in Putiiam County. The Court held that there was no evidence of negligence on
the part of
the respondent. Claim disallowed p. 192
NOTICE
ADAMS VS. DIVISION OF HIGHWAYS (CC-03-l00)
Claimant brought this action for damage to her 2003 Dodge Neon which occurred
when she was traveling on County Route 39 near Swiss in Nicholas County, and
the vehicle struck a large hole in the road. Claimant failed to establish that
respondent
W.Va.] REPORTS
STATE COURT OF CLAIMS 253
had notice of the hole which her vehicle struck and a reasonable amount of time
to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). Claim
disallowed p. 64
BELLAMY VS. DIVISION OF HIGHWAYS (CC-02-506)
Claimant brought this action for damage to her vehicle which occurred when her
husband, James Bellamy, was operating the vehicle on MacCorkle Avenue in
Charleston, Kanawha County, and the vehicle struck a hole in the road. The
Court is of the opinion that claimant failed to present any evidence that
respondent was negligent. Claimant was unable to establish the approximate date
on which this incident occurred and she was unable to establish the approximate
location ofthe hole. This Court has consistently held that an award cannot be
based on mere speculation. Mooney v. Dept. of Highways, 16 Ct. Cl. 84
(1986); Phares v. Division of Highways, 21 Ct. Cl. 92 (1996). Claim
disallowed p. 126
COLLINS VS. DIVISION OF HIGHWAYS (CC-03-102)
Claimant’s vehicle struck a hole while she was traveling east on 1-64, Kanawha
County. The evidence established that respondent did not have actual or
constructive notice of a hole onW. Va. Route 33 prior to the incident in
question. Claim disallowed.
p.171
DOTY VS. DIVISION OF HIGHWAYS (CC-04-lOl)
Claimant’s vehicle struck rocks while her daughter, Ashley Doty, was traveling
on State Route 2 in the Glendale area, also known as “the narrows,” Marshall
County, an area known for hazardous rock falls. The Court made an award of
$110.66 p. 202
EACHES VS. DIVISION OF HIGHWAYS (CC-03-l 52)
Claimant’s vehicle struck a hole while she was traveling westbound on 1-64 in
Cabell County. Respondent received no notice prior to claimant’s incident of a
hole in the right lane of traffic westbound on 1-64. Chapman v. Dept. of
Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct.
Cl. 8 (1985). Claim disallowed. p. 179
GOLDEN VS. DIVISION OF HIGHWAYS (CC-04-228)
Claimant’s vehicle struck a hole while she was traveling on W. Va. Route 105 in
Weirton, Hancock County. Respondent was held to be negligent in its maintenance
of the road. The Court made an award of$100.00 p. 203
GRANEY VS. DIVISION OF HIGHWAYS (CC-03-033)
Claimant brought this action for vehicle damage which occurred as a result of
her vehicle striking a piece of concrete while she was traveling northbound on
U.S. Route 119 between Davis Creek and Ashton Place in Kanawha County. The
evidence established that the respondent did not have actual or constructive
notice of a piece of concrete on U.S. Route 119 prior to the incident in
question. Claim
disallowed p. 157
254 REPORTS STATE COURT OF CLAIMS {W.Va.
HICKS VS. DIVISION OF HIGHWAYS (CC-03-137)
Claimant brought this action for damage to his vehicle which occurred when he
was traveling on the U.S. Route 50 exit ramp at the West Virginia Avenue Exit
in Clarksburg, Harrison County, and his vehicle struck a large hole in the
road. It is a well established principle of law that the State is neither an
insurer nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E. 2d 81 (W.Va. 1947). Claimant did not establish that respondent
had notice of the hole on the U.S.
Route 50 exit ramp. Claim disallowed p. 80
HOLLETT VS. DIVISION OF HIGHWAYS (CC-03-303)
Claimant’s vehicle sustained damage when her vehicle encountered a patch of ice
while traveling on County Route 35 in Cabell County. The Court held that the
respondent did not have actual or constructive notice of the potential for ice
to create a hazardous condition on County Route 35 at the time of claimant’s
accident. Claim
disallowed p. 177
MCJUNKIN, M.D. VS. DIViSION OF HIGHWAYS (CC-02-424)
Claimants brought this action for damage to their vehicle which occurred when
claimant Brittain McJunkin M.D., was operating their vehicle on 1-77 near
Charleston, Kanawha County, and the vehicle struck a metal expansionjoint
protruding between the road and the bridge. The Court is of the opinion that
claimants have failed to establish by a preponderance of the evidence that
respondent knew or should have known that the expansion joint on 1-77 was in a
state of disrepair at the time of the accident. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Fritt v. Dept. of Highways, 16 Ct. Cl. 8
(1985). Claim disallowed p. 66
MCNEMAR VS. DIVISION OF HIGHWAYS (CC-03-557)
Claimant’s vehicle struck a hole while she was traveling on W. Va. Route 58 in
Bridgeport, Harrison County. The Court held that the respondent had at least
constructive notice of the hole which claimant’s vehicle struck and that the
hole presented a hazard to
the traveling public. Award of $500.00 p. 182
MOWERY VS. DIVISION OF HIGHWAYS (CC-98-208)
Claimant brought this action for personal injuries and vehicle damage sustained
when he was traveling south on U.S. Route 220 in Grant County. The evidence
adduced at the hearing indicates that respondent had no notice of the defective
condition on U.S. Route 220 in Grant County. Ashworth v. Div. of Highways, 19
Ct. Cl. 189 (1993); Orsburn v. Div. of
Highways, 18 Ct. Cl. 125 (1991). Claim
disallowed. .
p. 151
PIERSON VS. DIVISION OF HIGHWAYS (CC-03-105)
Claimant brought this action for vehicle damage which occurred as a result of
her vehicle striking a hole while she was traveling south on W. Va. Route 114,
Kanawha County. The Court held that the respondent did have at least
constructive notice of the hole on W. Va. Route 114 prior to the incident in
question. Chapman vs. Dept. of
Highways, 16 Ct. Cl. 103 (1986). Award
of $500.00 p. 160
W.Va.] REPORTS
STATE COURT OF CLAIMS 255
ROSNICK VS. DIVISION OF HIGHWAYS
(CC-04-238)
Claimant’s vehicle struck a hole while she was traveling on W. Va. Route 105 in
Weirton, Hancock County. Respondent was held to be negligent in its maintenance
of the road. The Court made an award for $486.28 p. 200
SALLADE VS. DIVISION OF HIGHWAYS (CC-03-109)
Claimant’s vehicle struck a hole while he was traveling east on W. Va. Route
33, Putnam County. The evidence established that respondent did not have actual
or constructive notice of a hole on W. Va. Route 33 prior to the incident in
question. Claim
disallowed p. 170
SANTOWASSO VS. DIVISION OF HIGHWAYS (CC-04-217)
Claimant’s vehicle struck a hole while he was traveling northbound on W. Va.
Route 20 near Lumberport, Harrison County. The size of the hole and its
location in the travel portion of the highway leads the Court to conclude that
respondent had notice of this hazardous condition, and further, that it had an
adequate amount of time to take
corrective action. Award of $250.00 p. 181
THOMAS VS. DIVISION OF HIGHWAYS (CC-04-161)
Claimant’s vehicle struck a hole while she was traveling on W. Va. Route 119/33
in Morgantown, Monongalia County. The Court held that respondent had at least
constructive notice of the hole which claimant’s vehicle struck. Award of
$470.2.1 86
THOMASELLI VS. Dl VISION OF HIGHWAYS (CC-04-216)
Claimant’s vehicle struck a hole while she was traveling on County Route 11
near Weirton, Hancock County. Respondent was held to be negligent in its
maintenance of the road. The Court made an award of $500.00 p. 197
WALKER VS. DIVISION OF HIGHWAYS (CC-03.254)
Claimants brought this action for damage to their vehicle which occurred when
claimant, Thomas Walker, was operating the vehicle on Cabin Creek Road near
Chelyan, in Kanawha County, and the vehicle struck a large hole in the road.
Claimants failed to establish by a preponderance of the evidence that
respondent had notice of the defective condition on Cabin Creek Road which
caused the damage to claimant’s vehicle. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8
(1985). Claim disallowed p. 67
PEDESTRIANS
DEPTA VS. DIVISION OF HIGHWAYS (CC-02-l63)
Claimant brought this action for damages related to an incident that occurred
when their eight year old daughter fell off a bridge over Buffalo Creek near
Kistler in Logan County. The Court determined that respondent was negligent in
failing to provide a guard rail on the bridge to protect pedestrians,
especially children. The Court made an
award of $36,000.00 p. 218
256 REPORTS STATE COURT OF CLAIMS [W.Va.
KINTY VS. DIVISiON OF HIGHWAYS (CC-03-056)
Claimant brought this action for personal injuries which she suffered in an
incident that occurred at the entry to the parking building at BB&T Bank
which is immediately adjacent to Fairmont Avenue in Fairmont, Marion County.
The Court determined that the area where claimant broke her foot is the
responsibility of the property owner rather than the responsibility of the
respondent. Claim
disallowed p. 104
LAFFERTY VS. DIVISION OF HIGHWAYS (CC-03--071)
The parties stipulated that claimant suffered personal injuries when he was
waling along Lochgelly Road in Oak Hill, Fayette County, when he stepped off
the road and into an open drain that was covered by grass. Award of
$2,1000.00 p.214
PRISONS AND PRISONERS
ASH VS. DIVISION OF CORRECTiONS (CC-03-416)
Claimant, an inmate at Mount Olive Correctional Complex, brought this action to
recover the cost of a Christmas Food Package alleged to have been sent to him
from a company known as Securepac during December, January, or February 2003.
The Court held that claimant failed to establish that respondent acted in a
wrongful manner. Claim
disallowed p. 140
BOXLEY VS. DIVISION OF CORRECTIONS (CC-02-514)
Claimant brought this action to recover the value of certain personal property
items that he alleges were lost or destroyed by the respondent after he was
transferred from Northern Correctional Facility to Mount Olive Correctional
Complex. The Court determined that respondent was not negligent in its actions
with respect to care and treatment of claimant’s items of personal property.
Claim disallowed p. 143
BURDETTE VS. DIViSION OF CORRECTIONS (CC-02-484)
Claimant brought this action to recover the value of certain items of personal
property that he alleges were negligently seized and destroyed by the
respondent while he was an inmate at Mt. Olive Correctional Center. The Court
found that no bailment relationship existed. Heard v. Division of
Corrections, 21 Ct. Cl. 151 (1997); Edens v. Division of Corrections, 23
Ct. Cl. 221 (2000) p. 27
CORRIVEAU VS. DIVISION OF CORRECTIONS (CC-02-006)
Claimant brought this action for breach of an employment contract by respondent
while he was an inmate at St. Mary’s Correctional Center. Claimant contends
that he was wrongfully terminated from his job while an inmate at respondent’s
facility and seeks damages for lost wages, back pay, interest, and postage
expenses. The Court held that respondent did not breach the job contract it had
with claimant. Claim
Disallowed p. 145
W.Va.] REPORTS
STATE COURT OF CLAIMS 257
KJLMER VS. DIVISION OF CORRECTIONS (CC-03-285)
Claimant brought this action to recover the value of certain personal property
items that he alleges were negligently destroyed by respondent while he was an
inmate at Mt. Olive Correctional Complex. The Court held that respondent was
not negligent in destroying claimant’s food items. Claim disallowed p. 141
NICHOLS VS. REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY (CC-04-026)
Claimant seeks reimbursement for items ofpersonal property that were entrusted
to respondent’s employees when he was taken to South Central Regional Jail, a
facility of the respondent. In its Answer, respondent admits the validity of
the claim and that the amount is fair and reasonable. Award of $307.40 p. 150
SMITH VS. REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY (CC04-519)
Claimant brought this action for loss of personal property. ln its Answer
respondent admitted the validity and amount of claim. Award of $180.00. p. 209
SPROUSE VS. REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY (CC-04-229)
Claimant brought this action to recover the value of stamped envelopes that had
been taken from her by a correctional officer to be placed in claimant’s
personal property bag. In its Answer, respondent admits the validity of the
claim. Award of $9.4Op. 164
THOMPSON VS. DIVISION OF CORRECTIONS (CC-Ol-340)
Claimant, a former inmate at Mt. Olive Correctional Complex, brought this
action against respondent to recover $1,222.00 which he alleges was deducted
from his Veterans’ benefits as a result of respondent’s negligence in failing
to notify timely the Veterans Administration of his incarceration. Claimant
failed to produce evidence that respondent had a duty to notify the Department
of Veterans Affairs of his incarceration.
Claim disallowed p. 124
TONCRAY VS DIVISION OF CORRECTIONS (CC-03-044)
Claimant, an inmate at Northern Regional Jail, seeks an award of $55.00 for
loss of personal property. Respondent admits validity of the claim, but states
the amount of $40.00 rather than the amount claimed. Claimant agrees to accept
$40.00 as full and
complete compensation. Award of $40.00 p. 98
PUBLIC EMPLOYEES
AMOS VS. DIVISION OF HIGHWAYS (CC-04-146)
The parties stipulated that claimant, an employee of the respondent State
agency, was doing preventive maintenance in the District Four Equipment Shop
when a hydraulic cylinder fell onto his tool box. Award of $2,400.00 p. 188
258 REPORTS STATE
COURT OF CLAIMS [W.Va.
SANDERS VS. PUBLIC SERVICE COMMISSION (CC-03-426)
Claimant, an employee of the respondent State agency, filed this claim for
reimbursement of travel expenses. Respondent admitted the validity of the claim
as well as the amount, and states that there were sufficient flmds expired in
the appropriate fiscal year from which the invoice could have been paid. Award
$771.40 p.56
STATE AGENCIES
ZIRK VS. STATE RAIL AUTHORITY (CC-03-419)
Claimant brought this action for personal property damage caused when
respondent was using a tamper on a railroad near claimant’s home and a
hydraulic hose burst on the machine spraying hydraulic fluid on claimant’s
property located in Moorefleld, Hardy County. Respondent admitted the validity
ofthe claim and agreed that the amount was fair and reasonable. Award $1,765.00
p. 56
STREETS & HIGHWAYS - See also Comparative Nelience and Nelience
BROWN VS. D1V1SION OF HIGHWAYS (CC-01-213)
Claimants brought this action for personal injuries received by claimant James
Brown, for loss of consortium suffered by claimant Angela Brown, his wife, and
for loss of comfort suffered by his children, claimants Christine Brown and
Tasha Brown, when claimant James Brown had an accident while operating a
motorcycle on Tony’s Branch Road in Boone County. The Court held that
respondent was negligent in its maintenance of Tony’s Branch Road and this
decision is in accordance with previous decisions. Hale v. Dept. of Highways, 11 Ct. Cl. 93 (1976), Withrow v. Dept. of Highways, 17
Ct. Cl. 47 (1987), Boyle v. Division
of Highways, 19 Ct. Cl. 103 (1992). In
addition, the Court held that claimant James Brown bears 331/3 of the responsibility for the accident herein and
the injuries resulting therefrom p. 31
CAMPBELL VS. DIV1SION OF HIGHWAYS (CC-04-304)
Claimant’s vehicle struck a hole while he was traveling on W. Va. Route 131
near Bridgeport, Harrison Coulity. The Court found the respondent negligent and
awarded claimant $213.02 p. 191
CHAPMAN VS. DIVISION OF HIGHWAYS (CC-02-227)
Claimant’s vehicle was damaged when it came upon a large mudslide in the road
causing her vehicle to slide into a hillside while traveling on U.S. Route 52
in Mingo County. The Court held that claimant failed to establish by a
preponderance of the evidence that respondent was negligent. Chapman v. Dept. of Highways, 16 Ct. Cl. 103
(1986) p.5
COOK VS. DIVISION OF HIGHWAYS (CC-02-258)
Claimant’s vehicle sustained damage when it struck a sharp edge of a drainage
culvert while traveling Dry Branch Road in Kanawha County. The Court held that
respondent was negligent in failing to correct a defective and hazardous
condition and
W.Va.] REPORTS
STATE COURT OF CLAIMS 259
that respondent had at least constructive notice of the debris in the area
due to claimant’s telephone call to the respondent about the local ditch line
being clogged. Chapman v. Dept. ofHighways, 16 Ct. Cl. 103 (1986); Pritt
v. Dept. ofHighways, 16 Ct. Cl. 8 (1985). p.12
COOK VS. DIVISION OF HIGHWAYS (CC-Ol-38l)
Claimants brought this action for personal injuries and damage to their vehicle
which occurred when claimant Wilma Cook was operating their vehicle on State
Route 85 near Quinland, Boone County, and the vehicle struck a hole on
the edge of the road causing claimant to lose control of the vehicle whereupon
it crossed the road and struck the guardrail. The Court held that claimant
failed to establish by a preponderance of the evidence that respondent was
negligent. In addition, to find respondent negligent in this claim would
require the Court to speculate, which it will not do. Mooney v. Dept. of
Highways, 16 Ct. Cl. 84 (1986) p. 1
DAY VS. DIVISION OF HIGHWAYS (CC-03-209)
Claimant’s vehicle struck a hole while she was traveling eastbound on W. Va.
Route 34 in Putnam County. The Court is of the opinion that respondent failed
to protect
the traveling public. Award of$l,123.56 p. 173
DUNHAM VS. DIVISION OF HIGHWAYS (CC-0l-390)
The parties stipulated that claimant’s vehicle was damaged when it encountered
some gravel on the roadway causing her to lose control of her vehicle which
then struck a tree when she was traveling northbound on State and Local Service
Route 30 near Martinsburg in Berkeley County. The Court reviewed the claim and
made an award to
claimant based upon the stipulation p. 26
GORBEY VS. DIVISION OF HIGHWAYS (CC04-175)
Claimant’s vehicle struck a hole while she was traveling on U.S. Route 19 north
of Fairmont, Marion County. The Court held that respondent had constructive
notice of
the hole p.189
GROVES VS. DIVISION OF HIGHWAYS (CC-02-391)
The parties stipulated that claimant’s motorcycle was damaged when the edge of
the pavement gave way causing claimant to lose control of his motorcycle which
then struck the guardrail along the northern roadway edge while traveling on W.
Va. Route 62 in Mason County. The Court reviewed the claim and made an award to
claimant based
upon the stipulation p. 22
HITE VS. DIVISION OF HIGHWAYS (CC-02-329)
The parties stipulated that claimant’s vehicle was damaged when it went off the
edge of the road into a large drop off while traveling on Cedar Valley Road in
Jackson County. The Court reviewed the claim and made an award to claimant
based upon the
stipulation p. 3
260 REPORTS
STATE COURT OF CLAIMS [W.Va.
KING VS. DIViSION OF HIGHWAYS (CC-02-183)
Claimant’s vehicle sustained damage when it slid on a patch of ice causing it
to strike a mountainside. The Court held that claimant failed to establish by a
preponderance of the evidence that respondent was negligent in the maintenance
ofRoute 61 at the time of her accident. Chapman v. Dept. of Highways, 16
Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985) p. 8
MANONI VS. DIVISION OF HIGHWAYS (CC-03-224)
Claimant’s motorcycle was damaged when it struck a hole as he was traveling
northbound on W. Va. Route 34 in Putnam County. Respondent was held to be
negligent in its maintenance of the road. The Court made an award of
$500.00 p. 206
MCNEELY VS. DIVISION OF HIGHWAYS (CC-02-260)
Claimant’s vehicle sustained damage when it struck a large hole on Route 85,
Boone County. The Court made an award as respondent had constructive notice, if
not actual, notice, of the defective condition on Route 85 p. 4
NELSON VS. DIVISION OF HIGHWAYS (CC-03-015)
Claimants brought this action for damage to their vehicle which occurred when
claimant James Nelson was operating their vehicle on U.S. Route 19 near
Summersville, in Nicholas County, and the vehicle struck an object in the road.
The Court held that the claimants failed to establish by a preponderance of the
evidence that respondent had notice of the object in the road. Chapman v.
Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16
Ct. Cl. 8 (1995). Claim disallowed p. 44
NORMAN VS. DIVISION OF HIGHWAYS (CC-04-l31)
Claimant’s vehicle sustained damage when it struck a series of holes while he
was traveling on County Route 25 in Wheeling, Ohio County. The Court held that
respondent was negligent and awarded claimant the amount of his insurance
deductible p. 204
SHAFFER VS. DIVISiON OF HIGHWAYS (CC-03-021)
The parties stipulated that claimants’ vehicle struck a hole while traveling on
U.S. Route 622, Martins Branch Road, in Pocatalico, Kanawha County, and that
respondent was negligent. The Court made an award based upon the
stipulation P. 25
WiLSON VS. DIVISiON OF HIGHWAYS (CC-03-172)
The parties stipulated that claimant’s vehicle struck a large hole while
traveling on Route 27 in Brooke County, and that respondent was negligent. The
Court made an
award based upon the stipulation p. 41
TREES and TIMBER
BOOTH VS. DIViSION OF HIGHWAYS (CC-03-047)
W.Va.] REPORTS
STATE COURT OF CLAIMS 261
Claimants brought this action for damage to their vehicle which occurred when
claimant Stephen Rich was operating their vehicle on County Route 34, also
referred to as Middle Grave Creek Road, in Marshall County, and the top portion
of a large tree next to the road fell onto claimants’ vehicle. Wiles v. Division of Highways, 16 Ct. Cl. 103 (1986). While the evidence presented by
the claimant established that the tree at issue was dead, respondent did not
have notice of this particular hazard. Newkrik
v. Division of Highways, 20 Ct. Cl. 18
(1993); Chapman v. Dept. of Highways, 16 Ct. Cl. 170 (1999). The evidence also indicated that
this tree would not have been seen unless specifically brought to the attention
of respondent. Claim disallowed. ... p.
106
CARNELL VS. DIVISION OF HIGHWAYS (CC-03-333)
Claimant brought this action for damage to her vehicle which occurred when her
daughter, Barbara Darlene Harris, was operating the vehicle on County Route 2
between Qunwood and Marfrance in Greenbrier County and a tree limb fell onto
the vehicle causing damage thereto. The Court is of the opinion that claimant
failed to establish that respondent had actual or constructive notice that this
particular tree or tree stump presented a risk to the traveling public. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Fritt v. Dept. of Highways, 16 Ct. Cl. 9 (1985). Claim disallowed. p. 130
DILLON VS. DIVISION OF HIGHWAYS (CCO4-424)
Where claimant’s vehicle struck a branch from a tree that was overhanging the
roadway on County Route 4 in Mouroe County, the Court held that respondent had
constructive notice of the tree hazard and made and award p. 229
GRANT VS. DIVISION OF HIGHWAYS (CC-03-099)
Claimant brought this action for damage to his vehicle which occurred when his
vehicle struck a tree in the road while traveling east on Route 9/5, also know
locally as Mission Road, approximately seven miles east of Charles Town,
Jefferson County. The general rule this Court has adopted is that if a tree is
dead and poses an apparent risk, then the respondent may be held liable. Wiles v. Div. Of Highways, 22 Ct. Cl. 170 (1999); Gerritsen v. Dept. of Highways,
16, Ct. Cl. 85 (1986) p. 42
STRAIGHT VS. DiVISION OF HIGHWAYS (CC-04-295)
Claimant’s vehicle struck a tree while traveling on W. Va. Route 20 near
Wallace in Harrison County. The evidence established that the respondent did
not have actual or constructive knowledge of a tree on W. Va. Route near
Wallace, Harrison
County. Claim disallowed. p. 183
VANCE VS. DIVISION OF HIGHWAYS (CC.03-321)
Claimant brought this action for damage to his pickup truck which occurred when
he was traveling on County Route 97 near Pineville in Wyoming County, and his
vehicle struck a large tree to tree stump which had fallen onto the road. The
Court held that claimant failed to establish that respondent had actual or
constructive notice that this particular tree or tree stump presented a risk to
the traveling
public p. 131
262 REPORTS
STATE COURT OF CLAIMS [W.Va.
WALTERS VS. DIViSION OF HIGHWAYS (CC-02-375)
Claimant’s vehicle was struck by a tree limb that fell while they were
traveling northbound on County Route 7 in Wayne County. The Court determined
that respondent had constructive, if not actual, notice of the hazard this tree
posed to the traveling public.
The Court made an award of $212.96 p.190
VENDOR
ALLTEL VS. STATE FIRE MARSHALL (CC-03-427)
The Court made an award of $507.12 for cellular telephone services provided to
the respondent State agency. Respondent admits the validity and the amount of
the
claim p. 57
CHARLESTON AREA MEDICAL CENTER VS. DIVISION OF CORRECTIONS (CC03-463)
Claimant brought this action for reimbursement ofthe cost for medical treatment
provided to an inmate at Mount Olive Correctional Complex, a facility of the
respondent. Respondent’s position was that any amount paid for medical services
above and beyond the usual and customary charges should not be an obligation
ofthe respondent and should not be considered a moral obligation of the State.
The Court determined that the usual and customary charges standard is an
appropriate standard for determining medical costs for treatment and care of an
inmate in its facility. However, notice of this standard had not been provided
to claimant during its medical treatment of the inmate prior to the time of
treatment. Thus, claimant may make a recovery in the full amount of the medical
charges in this claim.
Award $89.87 p.161
CITY OF ELKINS VS. DIVISiON OF CORRECTIONS (CC-03-396)
The Court made an award of $225.00 for waste water testing performed at
Huttonsville Correctional Center, a facility of the respondent. The
documentation was not processed for payment in the proper fiscal year and
respondent admits the validity
and the amount of the claim p. 27
MANPOWER VS. DEPARTMENT OF EDUCATiON (CC-03-351)
The Court made an award of $1,855.48 for providing temporary services to
respondent. Respondent admits the validity and the amount of the claim p. 30
POMEROY IT SOLUTIONS, INC. VS. DEPARTMENT OF HEALTH AND HUMAN RESOURCES
(CC-03-162)
Award of 18,724.00 for providing computer merchandise purchased by respondent
in Kanawha 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.
In addition, the Court denied a request for interest based upon the provisions
in W. Va. Code §
14-2-12. p.14
W.Va.] REPORTS
STATE COURT OF CLAIMS 263
PRIMECARE MEDICAL, INC. VS. DIVISION OF JUVENILE SERVICES (CC-03- 357)
The parties stipulated that claimant provided medical laboratory tests to the
employees of the WV Industrial Home for Youth, a facility ofthe respondent. The
Court reviewed the claim and made an award to claimant based upon the
stipulation p. 30
SWEETSER VS. PUBLIC SERVICE COMMISSION (CC-03-543)
Award $4,950.00 for providing expert testimony for a case on behalf of the
respondent State agency. 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. 99
VERIZON OF WEST VIRGINiA, INC. VS. DEPARTMENT OF ADMINISTRATION (CC-03-503)
Award of$933,785.85 for unpaid telephone charges for fiscal years 1998, 1999,
and 2000 was made by the Court when 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 paiixiS8
WAYNE COUNTY COMMISSION VS. DIVISION OF CORRECTION S (CC-03-428)
Claimant is responsible for the incarceration of prisoners who have committed
crimes in Wayne County, but have been sentenced to facilities owned and
maintained by respondent. Claimant brought this action to recover costs for
providing housing andlor 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 for periods of time
beyond the date of the commitment order. Mineral
County Comm ‘n. Of Mineral County vs. Div. of Corrections, 18 Ct. CI. 88 (1990).
Award of $5,525.00 p. 84
WEST VIRGINIA ASSOCIATION OF REHABILITATION FACILITIES VS. DiVISION OF REHABILITATION
SERVICES (CC-03-302)
Award of $4,053.95 for providing maintenance 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. 13
VENDOR - Denied because of insufficient funds- see opinion: Airkem
Sales and Services, et al. vs. Dept. of Mental Health, 8 Ct. Cl. 180 (1971). Although the Court denied the
following claims, the Legislature considered the claims in Overexpenditure
Bills; declared the claims to be moral obligations ofthe State; and funds to
pay the claims were provided to the Court.
CHARLESTON AREA MEDICAL CENTER, INC. VS. DIVISION OF CORRECTIONS (CC-03-449)
264 REPORTS STATE
COURT OF CLAIMS [W.Va.
The Court disallowed a claim in the amount of $6,473.83 for medical services
rendered to inmates in the custody ofrespondent and there were insufficient
funds expired in the appropriate fiscal year from which to pay the claim. Claim
disallowed. .
p. 59
CHARLESTON PSYCHIATRIC GROUP, INC. VS. DIVISION OF CORRECTIONS (CC-03-406)
The Court disallowed a claim in the amount of $2,804.00 for medical services
rendered to inmates in the custody of respondent as there were insufficient
funds expired in the appropriate fiscal year from which to pay the claim. Claim
disallowed. .
p. 27
CORRECTIONAL MEDICAL SERVICES ll’TC. VS. DIVISION OF CORRECTIONS (CC-03-553)
The Court disallowed a claim for $810,063.25 for medical services provided to
several inmates in the custody of respondent since there were insufficient
funds expired
in the appropriate fiscal year p. 113
FEDERAL BUREAU OF PRISONS VS. DIVISION OF CORRECTIONS (CC-03-484)
The Court disallowed a claim in the amount of $9,583.77 for the housing of
inmates for the respondent State agency as there were insufficient funds
expired in the appropriate fiscal year from which to pay the claim. Claim
disallowed p. 57
JAN-CARE AMBULANCE VS. DiVISION OF CORRECTIONS (CC-03-529)
The Court disallowed a claim in the amount of $709.50 for transportation
services rendered to an inmate in the custody of respondent and there were
insufficient funds expired in the appropriate fiscal year from which to pay the
claim. Claim
disallowed p. 99
KANAWHA NEPHROLOGY, INC. VS. DIVISION OF CORRECTIONS (CC-03-355)
The Court disallowed a claim in the amount of$1,520.00 for medical services
rendered to an inmate in the custody of respondent since there were
insufficient funds expired in the appropriate fiscal year from which to pay the
claim. Claim disa1lo29
MONTGOMERY GENERAL HOSPITAL VS. DIVISION OF CORRECTIONS (CC-03- 243)
The Court disallowed a claim inthe amount of$35,593 .23 forproviding medical
services to an inmate in custody of respondent. 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. Claim
disallowed p. 15
MONTGOMERY GENERAL HOSPITAL VS. DIVISION OF CORRECTIONS (CC-03- 288)
The Court disallowed a claim in the amount of $4,071.25 for providing medical
services to inmates in custody of respondent. 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. Claim
disallowed p. 23
W.Va.] REPORTS
STATE COURT OF CLAIMS 265
MYERS VS. DIVISION OF CORRECTIONS
(CC-03-290)
The Court disallowed a claim in the amount of $2,398.45 for medical services
rendered to an inmate in the custody of respondent. 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. Claim
disallowed p. 24
POCAHONTAS MEMORIAL HOSPITAL VS. DIVISION OF CORRECTIONS (CC02-486)
The Court disallowed a claim in the amount of $1,674.14 for medical services
rendered to an inmate in the custody of respondent, as there were insufficient
funds expired in the appropriate fiscal year from which to pay the claim. Claim
disaliovc28
THE HEART CENTER VS. DIVISION OF CORRECTIONS (CC-03-349)
The Court disallowed a claim in the amount of $39.00 for medical services
rendered to an inmate in the custody of respondent as there were insufficient
funds expired in the appropriate fiscal year from which to pay the claim. Claim
disallowed p. 28
UNIVERSITY HEALTH ASSOCIATES VS. DIVISION OF CORRECTIONS (CC-03- 337)
The Court disallowed a claim in the amount of $6,858.00 for medical services
rendered to inmates in the custody ofrespondent, as there were insufficient
funds expired in the appropriate fiscal year from which to pay the claim. Claim
disallowed. .
p. 29
W. VA. UNIVERSITY
DRLJSCHEL VS. HIGHER EDUCATION POLICY
Claimant, a student at West Virginia University, brought this action for
personal property damage as a result of a water leak in his dormitory room
inBoreman North. The Court made an award to claimant in the amount of
$255.00 p. 150
TRYGAR VS. HIGHER EDUCATION POLiCY COMMiSSION (CC-03-332)
The Court made an award of $150.00 for personal property damage as a result of
water leaking from a dormitory room located above claimant’s 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 claim p. 24
WEBMEYER VS. HIGHER EDUCATiON POLICY COMMISSION (CC-04-213)
Claimant seeks reimbursement for a damaged poster that she had hanging in her
dormitory room at West Virginia University. In its Answer, respondent admits
the validity of the claim and that the amount is fair and reasonable. Award of
$13.98 p. 164
WET VS. HIGHER EDUCATION POLICY COMMISSiON (CC-03-401)
266 REPORTS
STATE COURT OF CLAIMS [W.Va.
Claimant, a graduate student attending West Virginia University in Morgantown,
brought this action to recover damages to his personal property while he was
residing in an apartment complex provided for faculty and owned by the
University, a facility of the respondent. The Court determined that the non-liability
clause in the rental agreement protects the respondent from the loss alleged by
the claimant herein. Claim disallowed. p.105
W.Va.] REPORTS
STATE COURT OF CLAIMS 267
ORDERS
Crime Victims Compensation Fund
268 REPORTS STATE COURT OF CLAIMS [W.Va.
W.Va.] TABLE OF
CASES REPORTED 269
TABLE OF CASES REPORTED
BOWLES, LORETTA M. (CV—03-307) 312
BURFORD, GERALD ALLEN, JR. (CV-02-534) 304
BURNSIDE, DENISE (CV-02-305) 286
BURT, CARA OLAKO- (CV-02-088) 317
CHILDERS, CLARENCE (CV-03-074) 283
CORBETT, YVONNE (C V-98-03 1) 287
CREIGHTON, JACKIE LYNN (CV-03-285) 307
DALE, ANNETTE M. (JONES) (CV-96-016) 288
EVANS, KATHRYN (CV-02-233) 275
FEATHERS, LINDA L. (CV-03-437) 303
FREY, SHIANNA (CV-01-319) 273
GRALEY, LANA (CV-01-083 293
GRAY, RAY GENE (CV-02-528) 278
GRIFFIN, CARLOS R. (CV-03-032) 309
HAYES, DAVID R. (CV-03-034) 316
JONES, BONNIE L. (CV-03-617) 311
KEENER, RICK R. (CV-02-508) 285
LAUGHLiN, VICKI R. (CV-03-478) 319
MOORE, ROBERT LEE (CV-02-406) 271
MOORE, PATRICIA (CV-01-269) 298
270 TABLE OF
CASES REPORTED [W.Va.
RUNYAN, JAMES ALLEN (CV-03-310) 314
TATE, CATHERINE D. (CV-00-434) 302
WOODY, KIM. E. (CV-02-413) 300
ZURZOLO, ANTHONY, JR. (CV-00-247) 280
W.Va.] TABLE OF
CASES REPORTED 271
Crime Victims Compensation Fund
Cases Submitted and Determined
in the Court of Claims
in the State of West Virginia
ORDER ISSUED JULY 23, 2003
Robert Lee Moore
(CV-02-406)
ORDER
Claimant appeared in person.
Joy M. Boiling, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Robert Lee Moore, for an award under the West
Virginia Crime Victims Compensation Act, was filed October 7, 2002. The report
of the Claim Investigator, filed December 13, 2002, recommended that no award
be granted, to which the claimant filed a response in disagreement. An Order
was issued on January 29, 2003, upholding the Investigator’s recommendation and
denying the claim, in response to which the claimant’s request for hearing was
filed February 18, 2003. This matter came on for hearing June 27, 2003,
claimant appearing pro se and the State of West Virginia by counsel, Joy
M. Bolling, Assistant Attorney General.
On July 1, 2002, the 35-year-old claimant was the victim of alleged criminally
injurious conduct in Dunbar, Kanawha County. While riding as a passenger in his
car, the claimant alleges that he was beaten in the head by Chad Dawson.
However, the police report prepared by a Kanawha County Sheriff’s Deputy
indicates that the claimant voluntarily stepped out of a moving vehicle and
struck his head on the ground.
This claim was initially denied on the basis that the claimant was not a
“victim of criminally injurious conduct”. Nothing adduced at the hearing
convinces this Court otherwise. The Court is constrained by the evidence to
affirm the original Order finding that there was no evidence of criminally
injurious conduct.
The claimant testified at the hearing of this matter regarding the
circumstances surrounding the incident. According to the claimant, he, a former
girlfriend named Belinda Williams, and Chad Dawson were on their way back from
a camping trip at his father’s camp along the Williams River. (Transcript, page
7.) The claimant stated that he was a back-seat passenger and Belinda Williams
was driving his vehicle. He claims that an argument ensued as they were
traveling on 1-77. (Transcript, page 7.) According to the claimant, Ms.
Williams refused to take him home for reasons not known by the Court. She only
agreed to take him to his cousin’s house in Dunbar. (Transcript, page
272 TABLE OF
CASES REPORTED [W.Va.
7.) The claimant testified that she exited 1-77 at Sissonville, at which time
the claimant leaned up from the back seat and turned the key in an attempt to
shut the car off. (Transcript, page 8.) However, he was unable to get the keys
out of the ignition. Eventually, the car came to a stop and all parties got out
ofthe vehicle. (Transcript, page 8.) The claimant stated that while all three
occupants were outside the vehicle, Chad Dawson began “cussing” him.
(Transcript, page 8.) After this, all that the claimant recalls is getting back
into the car. (Transcript, page 9.) He has no memory of what occurred after
this. He believes that while in the car he was struck in the head with a Craftsman
ratchet tool which knocked him unconscious. (Transcript, page 5.) The
claimant believes that Chad Dawson was the individual who intentionally struck
him in the head and that Belinda Williams planned the attack and told Chad
Dawson to do it. (Transcript, page 5.)
Further, the claimant testified that
Ms. Williams planned the attack on him because she wanted his property and
vehicle. (Transcript, page 4.)
The claimant did not present any independent eyewitnesses testimony. He
admitted there were no other witnesses who saw the incident. The only thing he
knows about being beaten up comes from information provided by a person whose
name he does not know, and who allegedly got the information from Chad Dawson,
while Mr. Dawson was drunk. (Transcript, page 5.) Claimant’s father, John
Moore, also testified at the hearing. He stated that the claimant received a
serious head injury and was hospitalized as a result. However, he was only able
to speculate as to the cause of his son’s injuries, because he was not at the
scene of the incident. (Transcript, page 15.)
W.Va. Code § 14-2A-3(k) defines a “victim” as a person who suffers personal injury or
death as a result of any one of the following: (1) Criminally injurious
conduct; (2) the good faith effort of the person to prevent criminally
injurious conduct... .“
W .Va. Code § I 4-2A-3(c)
defines “criminally injurious conduct” in part as: “conduct that occurs or is
attempted in this state or in any state not having a victim compensation
program which by its nature poses a substantial threat of personal injury or
death, and is punishable by fine or imprisonment or death Criminally injurious
conduct does not include conduct arising Out of the ownership, maintenance or
use of a motor vehicle, except when the person engaging in the conduct intended
to cause personal injury or death, or except when the person engaging in the
conduct committed negligent homicide, driving under the influence of alcohol,
controlled substances or drugs, or reckless driving.”
In the present case, the Claim Investigator’s finding was that the claimant was
not the “victim” of “criminally injurious conduct”. Therefore, it is the
claimant’s burden to prove by a preponderance of the evidence that he was the
“victim” of “criminally injurious conduct”. The Court is of the opinion that he
did not meet his burden of proof. First, the police report from the Kanawha
County Sheriff’s Department, which was part of the Claim Investigator’s
original findings, indicated that the claimant was injured when he opened the
door of a moving vehicle, stepped out, and fell to the ground striking his
head. Second, the claimant presented no independent eyewitnesses to testify
that he was a victim of criminally injurious conduct. The claimant was only
able to testify that he was told by a third party, whose name he could not
recall, that Chad Dawson beat him up. This is hearsay, vague, and very
speculative in nature. For the Court to grant an award, it would have to
speculate as to how the claimant was injured. This Court has
W.Va.] TABLE OF
CASES REPORTED 273
consistently held that it will not engage in mere speculation to determine
exactly what did occur in a claim. In re Smith, CV-89-10 (1989).
The Court is constrained by the evidence to stand by its previous ruling;
therefore, this claim must be, and is hereby, denied
ORDER
ISSUED SEPTEMBER 23, 2003
Shianna Frey
(CV-01 -319)
ORDER
Claimant appeared in person and by counsel, David P. Greenberg, Attorney at
Law. Jennifer Stollings, Assistant Attorney General, for the State of West
Virginia.
BAKER, JUDGE:
An application of the claimant, Shianna Frey, for an award under the West
Virginia Crime Victims Compensation Act, was filed September 7, 2001. The
report of the Claim Investigator, filed March 28, 2002, recommended that no
award be granted, to which the claimant filed a response in disagreement. An
Order was issued on June 24, 2002, upholding the Investigator’s recommendation
and denying the claim, in response to which the claimant’s request for hearing
was filed July 8, 2002. This matter came on for hearing July 8, 2003, claimant
appearing in person and by counsel, David P. Greenberg, Attorney at Law, and
the State of West Virginia by counsel, Jennifer Stollings, Assistant Attorney
General.
On July 2, 2001, the body of claimant’s 25-year-old daughter, Amy Frey, was
discovered on a narrow gravel lane near Hedgesville, Berkeley County. it was
determined that she had been the victim of homicide three days prior. She was
stabbed to death by the offender, Harry Deneen, who was indicted for
first-degree murder.
The basis for the initial denial of the claim was the victim’s contributory
misconduct. The Claim Investigator determined from the police report that the
victim had been participating in illegal drug use, and that these actions
contributed to her death.
Testifring at the hearing on behalf of the claimant was Berkeley County
Prosecutor Pamela Games-Neely, who prosecuted the defendant Harry Deneen for
the murder of Amy Frey and for an unrelated kidnapping and sexual assault
charge. (Transcript, pages 8-9.) Ms.Games- Neely testified that the defendant
Harry Deneen pleaded guilty to second-degree murder in the case of Amy Frey.
(Transcript, page 9.) While there was evidence of sexual assault, it was
insufficient to convict the defendant of that crime. (Transcript, page 9.) The defendant
made numerous inconsistent statements regarding whether he sexually assaulted
Amy Frey and whether Amy Frey was using illegal drugs on the night of this
crime. At one point, he stated to the prosecution that he and his uncle Roy
Murray both had consensual sex with the victim. (Transcript, page 9.) However,
Harry Deneen contradicted this original statement when he made his final
proffer to the Court, in which he stated that he had consensual sexual
274 TABLE OF
CASES REPORTED [W.Va.
intercourse with the victim, but his uncle Roy Murray tried to get the victim
to have sex with him and she refused. According to the defendant, when she
refused, Roy Murray began hitting her and attempted to sexually assault her.
(Transcript, page 10.) The defendant testified that it was at this point during
the struggle that he stabbed Amy Frey to death. (Transcript, Page 10.) Ms.
Games-Neely testified that there was absolutely no evidence that Amy Frey was
using drugs on the night of this crime other than the inconsistent statements
made by Harry Deneen. (Transcript, page ii.) Deneen first informed the
prosecutor’s office that he purchased crack cocaine specifically for the
purpose of partying with Amy Frey. On another occasion, he told the prosecutor
that he used drugs with Amy Frey, only to turn around and later deny that any
drugs were used. (Transcript, page 11.) According to Ms. Games-Neely, Mr.
Deneen made at least two or three inconsistent statements regarding drug use.
West Virginia State Trooper First Class Dean Olack also testified at the
hearing of this matter. Trooper Olack is stationed at Martinsburg, in Jefferson
County, and at the time of this crime he was the district investigator in
charge of the investigation of this brutal murder. (Transcript, page 19.)
Trooper Olack testified that Harry Deneen also made numerous conflicting
statements to him regarding whether or not Amy Frey was using drugs.
(Transcript, page 20.) In his first statement, Harry Deneen denied having
anything to do with Amy Frey. Trooper Olack testified that there is no evidence
indicating that Amy Frey used drugs on the night of this incident other than
Harry Deneen’s second statement to him. (Transcript, page 20.) According to
Trooper Olack, in his second statement, Harry Deneen stated that he was in a
bar with Amy Frey where they had several drinks. (Transcript, page 20.) He
stated that they left the bar together and went to Hagerstown, Maryland to buy
some narcotics. (Transcript, page 20.) He stated that both he and the victim
voluntarily used drugs and had consensual sexual intercourse. (Transcript, page
21.) Then, he alleged that he dropped her off in Hagerstown. However, in his
final proffer, he stated that he met Amy Frey in a bar in Hagerstown. He had
intentions of taking her to Roy Murray’s house so that he and Roy Murray could
engage in sexual intercourse with her. (Transcript, page 20.) Trooper Olack
also stated that it was his impression from interviewing Harry Deneen that he
was prepared to do whatever it took to get the girl to partake in sexual
intercourse with him and his uncle, Roy Murray. (Transcript, page 22.)
Furthermore, Harry Deneen stated to Trooper Olack that Roy Murray stabbed Amy
Frey. (Transcript, page 22.) Again, Harry Deneen made no statement about Amy
Frey using drugs.
W.Va. Code §
14-2A-3(l) defines “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.”
in this claim, the issue is whether or not the victim, Amy Frey, was involved
in the use of illegal drugs at the time she was brutally murdered. in a claim
under the Crime Victims Compensation Act, a claimant has the burden of proof in
establishing that the victim through whom the claimant seeks an award is an
“innocent victim of crime.”
W.Va.J TABLE OF
CASES REPORTED 275
Once the claimant has established that the victim is an innocent victim
under the statute, then the burden of proof shifts back to the respondent to
prove by a preponderance of the evidence that the victim through whom the
claimant seeks an award was not an innocent victim of crime. The evidence
adduced at the hearing of this matter established that the victim, Amy Frey,
was an “innocent victim of crime”. Amy Frey was brutally stabbed to death by
Harry Deneen, who later pleaded guilty to her murder. The only evidence that
the victim was using illegal drugs at the time of her death came during the
investigation of this crime when Harry Deneen made numerous inconsistent
statements to the State Police and the Jefferson County Prosecutor’s Office
that Amy Frey had used illegal drugs with him. However, in addition to changing
his testimony, Harry Deneen did not mention drug use at all in his last
statement before he was sentenced. It appears that early in the investigation,
Harry Deneen only stated that Amy Frey was using drugs in an attempt to hide
his own guilt. Given the lack of any credible evidence whatsoever that the
victim was using drugs at the time of her murder, the Court finds that Amy Frey
was an innocent victim of crime. The respondent failed adequately to rebut the
claimant’s evidence and did not establish that the victim used any illegal
drugs which had any causal connection or relationship to this brutal crime.
In view of the foregoing, the Court is of the opinion to and does hereby make
an award in this claim in the amount of $4,000.00 as documented in the Claim
Investigator’s memorandum dated July 14, 2003, and attached hereto.
ORDER ISSUED OCTOBER 10, 2003
Kathryn Evans
(CV-02-233)
ORDER
Claimant appeared in person.
Joy M. BoIling, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Kathryn Evans, on behalf of her minor son,
Nikolas P. Hutchison, for an award under the West Virginia Crime Victims
Compensation Act, was filed June 21, 2002. The report of the Claim
Investigator, filed December 27, 2002, recommended that no award be granted, to
which the claimant filed a response in disagreement. An Order was issued on
February 27, 2003, upholding the Investigator’s recommendation and denying the
claim, in response to which the claimant’s request for hearing was filed March
11, 2003. This matter came on for hearing September 10, 2003, claimant
appearing pro se and the State of West Virginia by counsel, Joy M.
Boiling, Assistant Attorney General.
Claimant Kathryn Evans is the mother and legal guardian of Nikolas P.
Hutchison, a minor, age seventeen, and the alleged victim of criminally
injurious conduct in Wheeling, Ohio County, on March 23, 2002. Nikolas was
punched numerous times
276 TABLE OF
CASES REPORTED [W.Va.
in the face by the alleged offender, Jeremy Coyne, also a minor. As a result of
this attack, the victim suffered serious injuries including facial lacerations
and a broken jaw.
This claim was initially denied on the basis that the alleged victim was guilty
of contributory misconduct. Nothing adduced at the hearing convinces this Court
otherwise. The Court is constrained by the evidence to affirm the original
Order finding that the victim was guilty of contributory misconduct.
The claimant, Ms. Evans, testified at the hearing of this matter regarding the
circumstances surrounding the incident and the injuries sustained by her son as
a result of the attack. Nikolas Hutchison was not at the hearing to testify as
to the incident and the circumstances surrounding it. (Transcript, page 10.) At
the time of the incident, the victim lived at home with the claimant and
attended Wheeling Central Catholic High School. (Transcript, page 4.) According
to the claimant, there was a planned fight between Christopher Stephens and
Ricky Zambito, the victim’s friend. (Transcript, pages 12,13.) The fight was
supposed to take place at Garden Park, which is approximately two blocks from
the claimant’s home. The claimant testified that she was unaware of the planned
fight until after it occurred. (Transcript, page 4.) On March 23, 2002, the
victim and two of his friends were with him at the claimant’s home. The
claimant recalled that one of the friends was Lee McKitrick. The claimant
stated that the three boys were there most of the evening (Transcript, page 4.)
The claimant admitted that at some point that evening the victim was involved
in arranging a fight. He called Christopher Stephens on the telephone and told
him that Ricky Zambito was going to meet him at Garden Park to fight.
(Transcript, page 14.) This is corroborated by Sergeant Joseph Petri’s report.
(Transcript, page 15.) However, Ricky Zambito wisely decided that he was
not going to show up for the fight. Claimant testified that all three boys left
her house that night at approximately 11:00p.m. (Transcript, page 9.) The
claimant testified that she “did know that they were going to tell someone that
Zambito wasn’t going to show up.” (Transcript, page 4.) She stated that her son
went to Garden Park to tell everyone that Zambito was not coming to fight.
(Transcript, page 13.) Although Mr. Zambito did not show up for the planned
fight, according to the Wheeling Police Department Incident Report prepared by
Sergeant Petri, there was a significantly large group of teenagers present to
watch the fight. According to the police report, there were approximately
eleven individuals at the scene, including the victim. Based upon the police
report which was introduced into evidence at the hearing, it appears that
Shasta Monteleone took it upon herself to start a disturbance by yelling at the
offender, Jeremy Coyne, who in turn yelled back. Dustin Schroeder, a friend of
the victim, came to Shasta Monteleone’s defense and began yelling at the
offender. Thus, an unplanned fight erupted when Dustin Schroeder punched the
offender in the face and then kicked him. According to the police report, it
was then that the victim got in really close to the offender, Jeremy Coyne,
during the fight and started screaming at him that he hated him and for Dustin
Schroeder to “kick his ass.” The claimant also admitted in her testimony that
the victim yelled obscenities at Jeremy Coyne while encouraging Dustin Schroder
to continue hitting him. (Transcript, page 13.) According to the police report,
the alleged offender and Dustin Schroeder stopped fighting each other and the
alleged offender turned to the victim whereupon a shouting match ensued between
the two. The police report indicated that the offender then punched the victim
in the face causing him to stumble backward. The victim stepped forward toward
the alleged offender who proceeded to punch the victim until he dropped
W.Va.] TABLE OF
CASES REPORTED 277
to his knees. Numerous persons at the scene tried to separate the alleged
offender and the victim. At this point, the victim began walking towards his
car attempting to leave, but the alleged offender pursued him and caught up
with him at the victim’s car where the offender began punching him in the face
and kicking him. (Transcript, page 5.) It was during this second attack that the victim sustained most, if not
all, of his injuries. (Transcript, page 5.) The victim suffered serious
injuries, including a fracturedjawbone and a broken molar. Due to the
fracturedjawbone, the victim had to have plastic surgery which required that
his mouth be wired closed for six weeks. (Transcript, page 6.) He also suffered
serious facial bruising, swelling, and lacerations. As a result of this
incident, the victim has endured physical pain, emotional distress, and
embarrassment. In addition, the victim’s mother, who is his legal guardian, has
incurred medical expenses in excess of $6,000.00.
Sergeant Joseph Petri, an officer with the Wheeling Police Department,
investigated this incident. (Transcript, page 16.) He testified that based upon
his investigation, the victim in fact did call Christopher Stephens to tell him
that Ricky Zambito was going to meet him at the park to fight. (Transcript,
page 16.) He also testified that he believes that the victim went to the scene
to witness a fight, and that once a fight did ensue he encouraged the person
hitting the offender to continue hitting him. (Transcript, page 16,17.)
Further, Sergeant Petri testified that the victim yelled obscenities and
cheered Dustin Schroder onto continue hitting the offender. (Transcript, page
16,17.) According to Sergeant Petri’s investigation, when the offender and
Dustin Schroder stopped fighting and the offender turned and exchanged punches
with the victim, the victim was knocked to his knees. (Transcript, page 24.)
Sergeant Petri stated that this first altercation was broken up by the other
individuals at the scene, and that the victim “retreated” after the first
exchange. (Transcript, page 17.) Sergeant Petri testified that within approximately
one minute after the initial fight, the offender went after the victim a second
time and proceeded to punch him in the face, causing serious injuries.
(Transcript, page 17.) It is Sergeant Petri’s opinion, based upon his
investigation and twenty-eight years of experience, that the initial exchange
between the offender and the victim may have been verbally provoked.
(Transcript, page 17.) However, he believes the second exchange in which the
more serious damage was done was simply the offender’s attempt to punish the
victim and “inflicting his own brand of justice.” (Transcript, page 17.)
Sergeant Petri testified that all witnesses to the attack agree that the victim
did not throw any punches or even offer any real defense during the second
attack. (Transcript, page 23.) Further, Sergeant Petri stated that the offender
had not been charged with any crimes as a result of this incident. (Transcript,
pages 23,24.)
The issue in this claim is whether or not the victim’s conduct, including the
telephone call he made to arrange the fight between Christopher Stephens and
Rick Zambito, as well as his conduct at the scene of the fight, rises to the
level of “contributory misconduct.” Based upon the evidence presented in this
claim, the Court is of the opinion that the victim was guilty of contributory
misconduct.
W.Va. Code §
I 4-2A-3(l) defines “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 mi urious
conduct has causal relationship to the criminally injurious conduct that is the
basis of the claim and shall also include the voluntary
278 TABLE OF
CASES REPORTED [W.Va.
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. The voluntary intoxication of a victim is
not a defense against the estate of a deceased victim.”
Contributory misconduct includes conduct that is unlawful as well as that which
is intentionally tortious where the unlawful or intentionally tortious conduct
has a causal relationship to the criminally injurious conduct at issue. Under W.
Va. Code 6l-2-9(b), an assault occurs:
If any person unlawfully attempts to commit a violent injury to the person of
another or unlawfully commits an act which places another in reasonable
apprehension of immediately receiving a violent injury, he shall be guilty of a
misdemeanor, and, upon conviction, shall be confined in jail for not more than
six months, or fined not more than one hundred dollars, or both such fine and
imprisonment.
An assault is also an intentional tort defined as an intentional act which
places another in reasonable apprehension of imminent harmful or offensive
contact. W. Page Keeton Et. Al., Prosser and Keeton On The Law Of Torts § 10, at 43 & 44 (5 ed. 1984).
The evidence adduced at the hearing including the police report establishes
that the victim, at a minimum, committed the intentional tort of assault when
he approached the offender, who was in a fight with the victim’s friend, and
screamed obscenities at him while encouraging his friend to keep punching the
victim and to “kick his ass.” It was reasonable for the offender under the
circumstances of this incident to have been in fear of imminent bodily harm
from the victim. Obviously, once the victim had walked away from the site of
the first fight towards his vehicle, it was not reasonable for the alleged
offender to believe or fear that he was in imminent danger of bodily harm and
there is no way he could claim self-defense at that point. The Court is not
condoning the alleged offender’s conduct. Certainly, the alleged offender’s
actions were not justifiable and he went well beyond his need of self defense.
While the alleged offender’s pursuit and second attack upon the victim was
unjustifiable, it is causally related to the first incident between the victim
and the alleged offender. Ifthe victim had not made the initial assault upon
the alleged offender, neither the first nor the second attack would have
occurred. Thus, the Court is constrained by W. Va. Code §14-2A -3 (1) to
deny an award in this claim based upon the victim’s contributory misconduct.
The Court will stand by its previous ruling; therefore, this claim must be, and
is hereby, denied.
ORDER ISSUED DECEMBER 3, 2003
Ray Gene Gray
(CV-02-528)
W.Va.] TABLE OF
CASES REPORTED 279
ORDER
Claimant appeared in person.
Joy M. Boiling, Assistant Attorney General, for the State of West Virginia.
WEBB, JUDGE:
An application of the claimant. Ray Gene Gray, for an award under the West
Virginia Crime Victims Compensation Act, was filed December 6, 2002. The report
of the Claim Investigator, filed March 21, 2003, recommended that no award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on May 21, 2003, upholding the Investigator’s recommendation and denying
the claim, in response to which the claimant’s request for hearing was filed
May 27, 2003. This matter came on for hearing September 26, 2003, claimant
appearing pro se and the State of West Virginia by counsel, Joy M.
Boiling, Assistant Attorney General.
On April 15, 2001, the 45-year-old claimant was the victim of criminally
injurious conduct in Beckley, Raleigh County. The claimant was visiting the
home of Alphonso Grant where he was assaulted.
The claimant testified at the hearing of this matter that on the evening of
April 15, 2001, he had gone to the residence of Alphonso Grant, the
alleged offender, to visit. (Transcript, page 7.) The claimant and the alleged
offender had been friends prior to this incident. According to the claimant,
the alleged offender suddenly became enraged for unknown reasons and told the
claimant to leave his home. (Transcript, page 8.) The claimant stated that he
was attempting to leave when suddenly the alleged offender struck him in the
head with a forty-ounce glass beer bottle, which seriously injured him.
(Transcript, page 8.) Then, the alleged offender used a baseball bat to strike
him approximately four times in the left leg. (Transcript, page 8.) The
claimant testified that he was bleeding too badly to go home, so his friend,
Ronnie Pemberton, took him to Raleigh General Hospital a few hours after the
attack. (Transcript, page 9.) Tn addition, he stated that another friend,
William Ritchie, contacted the police. (Transcript, page 9.) The claimant also
revealed that a female police officer came to his room at the hospital on the
night of the incident and asked him if he wanted to press charges, which he
did. (Transcript, page 9.) Unfortunately, William Ritchie has since passed away
and was never able to give a statement regarding this incident and the time
line of events. (Transcript, page 6.) However, the claimant also testified that
Mr. Ritchie had called an ambulance and that he was taken to the hospital by an
ambulance, not his friend. (Transcript, page 8.) On cross-examination, the
claimant testified that Charles Christian took him to the hospital. This
contradicts his earlier testimony. (Transcript, page 25). Further, the claimant
stated that he spoke to the police officer at the hospital around 2:30 p.m. or
3:00 p.m. (Transcript, page 10.) The claimant was adamant that he went to the
hospital the same day of the incident and that he informed a female police
officer that he wanted to press charges against the alleged offender.
(Transcript, page 14.) According to the claimant, he was in the hospital for
thirty-three days and was in a coma for two weeks while in the hospital.
(Transcript, page 20.) In spite of being in a coma for two weeks, it was the
claimant’s testimony that he reported the crime to the police on the first day
he was admitted to the hospital, because he was in and out of consciousness.
(Transcript, pages 22-23). The claimant asserted that the medical records and
police
280 TABLE OF
CASES REPORTED [W.Va.
reports were incorrect or otherwise inaccurate. (Transcript, page 19.) He is
certain that he reported the crime to the police on the date of the crime while
at the hospital.
The claimant’s medical records indicate that he did not come to the hospital
until April 17, 2001, which is two days after the attack. (Transcript, page i
7.) Further, the police report completed by Sergeant T.S. Peck of the Beckley
Police Department is dated April 27, 2001. (Transcript, page 17.) In addition,
the claimant did not present any independent eyewitness testimony that he did
in fact report the crime to the police on the day of the incident, nor did he
present any independent eyewitnesses to testify that he went to the hospital on
the same day of the attack. (Transcript, page 18.)
W.Va. Code §14-2A-14(b) states in part: “... The
judge or commissioner may not approve an award of compensation ifthe criminally
injurious conduct upon which the claim is based was not reported to a
law-enforcement officer or agency within seventy- two hours after the
occurrence of the conduct, unless it is determined that good cause existed for
the failure to report the conduct within the seventy-two hour period.” In the
present case, the Claim Investigator’s finding was that the claimant did not
report the crime to the police within seventy-two hours after the crime
occurred. Therefore, it is the claimant’s burden to prove by a preponderance of
the evidence that “good cause existed for the failure to report the conduct
within the seventy-two hour period.” The Court is of the opinion that he did
not meet this burden. The evidence adduced at the hearing of this matter
establishes that the claimant did not report the criminally injurious conduct
within the seventy-two hour period. The police report clearly indicates that
the criminally injurious conduct occurred on April 15, 2001, and
the claimant reported it on April 27, 2001. There is a twelve-day gap between
the criminally injurious conduct and the filing of the police report. There was
no evidence presented by the claimant that he was in a coma while he was in the
hospital. The medical records indicate that he suffered an injury to his left
leg and a closed head injury. Although there is mention of some “confusion” on
the part of the claimant while in the hospital, the medical records state that
“the work-up for his confusion that was done in the hospital were all
negative.” Since the claimaiit did not report the criminally injurious conduct
within seventy-two hours, and he failed to show “good cause” for not reporting
the conduct, the Court must deny this claim. Even if the claimant could
establish that he reported the crime within the seventy-two hour period or show
good cause for not doing so, he has no damages for which he could recover from
the Crime Victims Compensation Fund.
The Court is constrained by the evidence to stand by its previous ruling;
therefore, this claim must be, and is hereby, denied.
ORDER ISSUED DECEMBER 23, 2003
Anthony Zurzolo, Jr.
(CV-00-247)
ORDER
W.Va.] TABLE OF
CASES REPORTED 281
Claimant appeared in person.
Joy M. Bolling, Assistant Attorney General, for the State of West Virginia.
WEBB, JUDGE:
An application of the claimant, Anthony Zurzolo, Jr., for an award under the
West Virginia Crime Victims Compensation Act, was filed July 3, 2000. The
report of the Claim Investigator, filed March 12, 2001, recommended that no
award be granted, to which the claimant filed a response in disagreement. An
Order was issued on April 16, 2001, upholding the Investigator’s recommendation
and denying the claim, in response to which the claimant’s request for hearing
was filed November 26, 2002. This matter came on for hearing September 30,
2003, claimant appearingpro se and the
State of West Virginia by counsel, Joy M. Boiling, Assistant Attorney General.
The Claimant, age 47, alleges that he was the victim of criminally injurious
conduct on August 5,
1998, in N utter Fort, Harrison
County. The claimant and two coworkers were painting a building near the
Go-Mart in Nutter Fort, when he and a coworker were allegedly assaulted by
David Shell.
The claimant testified at the hearing of this matter that he and a friend named
Jim owned a small painting company which they and another friend, Delbert,
operated. They performed mostly small local painting jobs. The claimant
testified that at approximately 4:00 p.m. on August 5, 1998, he and his two coworkers were finishing painting
the outside of a building when they decided to take a break and get something
to drink at the Go-Mart next door. (Transcript, page 19.) According to the claimant,
one of his coworkers accidentally stepped on some wet painted lines as they
walked across the Go-Mart parking lot. (Transcript, page 20.) The claimant
testified that neither he nor his coworkers was aware that one of them had
stepped in wet paint. (Transcript, page 20.) Approximately five minutes later,
the alleged offender, David Shell, approached them while they were working and
pulled on Jim’ sI eg while he was standing on a ladder. The alleged offender
started screaming at them for walking across the parking lot and messing up his
paintjob. (Transcript, page 20.) The claimant began screaming back at the
alleged offender when suddenly, Jim fell off the seven to eight -foot ladder.
(Transcript, page 20.) Jim injured his arm in the fall. (Transcript, page 20.)
Atjust about the same time, the claimant lost his balance and fell off the
“step ladder” which he was standing on while painting. (Transcript, page 20.)
The claimant then stood up and continued to scream at the alleged offender,
stating that he was going to go get the police and that he (the offender) had
better leave the premises. (Transcript, page 28.) According to the claimant,
the alleged offender was not coming towards him, but was starting to back away,
when the alleged offender’s wife yelled, “We’re gonna (sic) kill you SOB’s.”
(Transcript, page 21.) After the threat, the claimant allegedly told his two
coworkers to go inside the office building where they were working.
(Transcript, page 21.) The claimant then got into his vehicle and drove around
the block to the Nutter Fort City Police Station, where he saw Lieutenant David
Maq,le, who was on his way to the GO-Mart in response to an emergency call
regarding this incident by a Go-Mart employee. (Transcript, page 21.) The
claimant testified that he attempted to file a complaint against the alleged
offender but no police department would cooperate in doing so. (Transcript,
pages 18-19.) The claimant further stated that both Lieutenant Marple and the
Chief of Police for Nutter Fort told him that it was “just an assault.”
(Transcript,
282 TABLE OF
CASES REPORTED [W.Va.
page 24.) However, the claimant also admitted that at no time did the alleged
offender place his hands on him. (Transcript, page 38.) On cross-examination,
the claimant admitted that he got distracted by the alleged attack upon his
friend Jim, and that as he was coming down from the ladder he fell and
aggravated a preexisting back injury. (Transcript, page 38.) He stated that he
received the original back injury while working at his last place of
employment. (Transcript, page 20.) The claimant alleges that he suffered a
year’s worth of lost wages because of the aggravation of this injury.
(Transcript, page 29.) He also testified that he and his coworkers could no
longer paint as a result of this incident. (Transcript, page 23.) However, the
claimant did not present any medical bills incurred as a result of this
incident. He testified that Worker’s Compensation paid for the medical expenses
because he aggravated a preexisting injury that was already covered by Worker’s
Compensation. (Transcript, page 25.) According to the claimant, he
received medical treatment from Dr. Morton, who had been treating him for the
preexisting injury to his back. •He stated that Dr. Morton continued treating
the same injury that was already covered by the Worker’s Compensation Fund.
(Transcript, page 39.) In addition, claimant did not produce any tax returns to
demonstrate his asserted lost wages. (Transcript, page 41.)
Lieutenant David Maiple of the Nutter Fort Police Department in Harrison County
testified that he received a telephone call from David Heck, the clerk at the
Go- Mart on Buckhannon Pike where this incident occurred. Mr. Heck informed
Lieutenant Marple that someone was harassing the painter whom Go-Mart had
contracted to paint its parking lots. (Transcript, page 7.) The
contracted painter was the alleged offender, David Shell. (Transcript, page 7.)
According to Lieutenant Marple, as soon as he walked out the door to go to
the scene, the claimant drove up in his vehicle and began to tell him what had
happened. (Transcript, page 7.) Lieutenant Marple informed him that he
had just received a telephone call regarding the incident and was on his way to
the scene. (Transcript. page 7.) He advised the claimant to follow him.
(Transcript, page 7.) Upon arriving at the scene, Lieutenant Marple
spoke to the clerk who had made the phone call. (Transcript, page 7.) Based
upon his observations, Lieutenant Marple thought that the victim of the incident
was David Schell, who is the alleged offender. (Transcript, page 8.) According
to Lieutenant Marple, Mr. Schell did not wish to file a complaint. All he
wanted was for the claimant and his crew to leave him alone so that he could
finish his job. (Transcript, page 8.) Lieutenant Marple testified that he was
never informed that the claimant was attacked or assaulted by another
individual. (Transcript, page 13.) He also testified that to the best of his
knowledge, no violent crimes had occurred. (Transcript, page 13.) He stated
that at most, there may have been some “harassment,” but nothing more.
(Transcript, page 14.) Lieutenant Marple was of the opinion that he may have
prevented the situation from escalating into a violent altercation. (Transcript,
page 14.) He stated that the claimant did not file any type of criminal
complaint as a result of this incident. (Transcript, page 14.) Further,
Lieutenant Marple testified that the claimant did not indicate to him that he
was personally injured during the incident.
W.Va. Code §
14-2A-3(c) states, in part, that
“Criminally injurious conduct means conduct that occurs or is attempted in this
state or in any state not having a victim compensation program which by its
nature poses a substantial threat of personal injury or death, and is
punishable by fine or imprisonment or death...”
W.Va.] TABLE OF
CASES REPORTED 283
In prior situations, the Court has denied claims based on the vague nature
ofthe asserted criminally injurious conduct where it was impossible to
determine the innocence of the victim, or the existence of contributory
misconduct on the part of the claimant. In re Keller, CV-88-23 (1989), In re
Smith, CV-89-1O (1983); In re ifaines, CV-82-37 (1983), In re Black, CV-86-1O (1 986).
In the present case, the Claim
Investigator’s original finding was that the claimant failed to timely respond
to the requests of the Claim Investigator. in addition, there was no police
report upon which the Claim Investigator could base a reconmiendation. The
claimant did eventually respond and send some information needed by the Claim
investigator. Thus, this hearing was held to determine whether or not the
claimant was the victim of criminally injurious conduct. It is the claimant’s
burden to prove by a preponderance of the evidence that he was the victim of
“criminally injurious conduct.” The Court is of the opinion that the claimant
did not meet this burden. He did not produce any evidence at the hearing that
there was any conduct or attempted conduct that, by its nature, posed a
substantial threat of personal injury or death. The evidence established that
the claimant simply fell from a stepladder while arguing with the alleged
offender. There is no evidence of an assault, battery, or any conduct or
attempted conduct on the part of the alleged offender that posed a substantial
threat of personal injury or death to the claimant. The claimant presented
conflicting testimony as to the nature of this incident and adniitted that he
yelled at the alleged offender while he was on the step- ladder. It was just
after he yelled at the alleged offender that he fell and allegedly aggravated
his back injury. In addition, the claimant testified that at one point the
alleged offender was “backing off’ as the claimant was screaming at him. The
evidence presented in this claim indicates that the claimant was not the victim
of criminally injurious conduct, which bars him from any award. Even if the
claimant could establish that he was the victim of criminally injurious
conduct, he has no damages for which he could recover from the Crime Victims
Compensation Fund, because he did not produce a scintilla of evidence that he
suffered any lost wages as a result of this incident, and all of his medical
bills were covered by a collateral source.
The Court is constrained by the evidence to stand by its previous ruling;
therefore, this claim must be, and is hereby, denied.
ORDER ISSUED JANUARY24, 2004
Clarence Childers
(CV-03-74)
ORDER
Claimant appeared in person.
Benjamin F. Yancey, lii, Assistant Attorney General, for the State of West
Virginia.
BAKER, JUDGE:
284 TABLE OF
CASES REPORTED [W.Va.
An application of the claimant, Clarence Childers, for an award under the West
Virginia Crime Victims Compensation Act, was filed February 18, 2003. The
report of the Claim Investigator, filed July 31, 2003, recommended that no
award be granted, to which the claimant filed a response in disagreement. An
Order was issued on September 23, 2003, upholding the Investigator’s
recommendation and denying the claim, in response to which the claimant’s
request for hearing was filed October 1, 2003. This matter came on for hearing
November 20, 2003, the claimant appearingpro se and the State of West Virginia by counsel, Benjamin F.
Yancey, 111, Assistant Attorney General.
On December 12, 2002, the 31-year-old claimant was the victim of criminally
injurious conduct in Fort Gay, Wayne County. He was visiting the residence of
Lomue Taylor when he was stabbed by Lonnie’s brother, McKinley Taylor.
The claimant testified at the hearing that on the day in question he “was at
that place and I was drinking but as I was getting ready to leave, the person
that done it just started stabbing me in the back.” (Transcript, page 5.) When questioned about the amount of alcohol he had
consumed that day, the claimant replied, “a case maybe, maybe not even a case
of beer” from about “ten to eleven until that took place.. .around six or seven
in the afternoon.” (Transcript, pages 7-8.)
The claimant was asked what happened to the assailant, McKinley Taylor. He
replied, “The city cop there asked me if I wanted to press charges. I didn’t
remember talking to him ‘cause I was out of it so he never did do nothing.”
(Transcript, page 8.) The claimant added that the assailant was “caught over in
Kentucky...with a gun.” (Transcript. page 8.)
Upon cross-examination, the claimant was asked who was present at the trailer.
He stated that Lonnie Taylor, two of his brothers, and Lomiie’s daughter, Rita
Caudle were there. (Transcript, pages 10-1 1.) The claimant revealed that
McKinley Taylor was dancing with Rita, his niece, when the claimant made a joke
about inbreeding. (Transcript, page 11.) McKinley Taylor then stated that if
the claimant had a problem he could go outside. (Transcript, page 12.) As the
claimant was attempting to leave, he was stabbed in the back by McKinley
Taylor. (Transcript, page 12.)
No one appeared to testify on behalf of the State.
It is undisputed that the claimant was injured as the result of criminal
conduct, and that the incident was timely reported to the authorities. The
question before this Court is whether the claimant’s own actions amounted to
“contributory misconduct” such as to justify a reduction or denial of an award
of compensation.
“Contributory misconduct” is defined in W.Va. Code § 14-2A-3(l) as “any conduct of the claimant.. .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 ofthe claim and shall also
include the voluntary intoxication of the claimant... .“ According to the claimant’s own testimony, he consumed
nearly a case of beer on the day of the assault, starting at 10:00 or 11:00
a.m. Medical records indicate that his blood alcohol level was .22.
The Court finds that the claimant’s actions in this matter did constitute
contributory misconduct. He had begun drinking early in the day, his blood
alcohol level was over twice the legal limit in West Virginia, he made untoward
remarks to the offender, and he admitted to being unaware of his surroundings
(“out of it”) when
W.Va.] TABLE OF
CASES REPORTED 285
questioned by the police. This behavior, causally related to the claimant’s
injuries, is the basis for denial of an award under W.Va. Code §l4-2A-14.
Accordingly, the Court is constrained by the evidence to stand by its previous
ruling and deny the claim.
ORDER ISSUED JANUARY26, 2004
Rick R. Keener
(CV-02-508)
ORDER
Claimant appeared in person and by counsel, Travis Fitzwater, Attorney at Law.
Joy M. Bolling, Assistant Attorney General, for the State of West Virginia.
WEBB, JUDGE:
An application of the claimant, Rick R. Keener, for an award under the West
Virginia Crime Victims Compensation Act, was filed November 26, 2002. The
report of the Claim Investigator, filed March21, 2003, recommended that no
award be granted, to which the claimant filed a response in disagreement. An
Order was issued on May 21, 2003, upholding the Investigator’s recommendation
and denying the claim, in response to which the claimant’s request for hearing
was filed June 12, 2003. This matter came on for hearing September 30, 2003,
claimant appearing in person and by counsel, Travis Fitzwater, Attorney at Law,
and the State of West Virginia by counsel, Joy M. Bolling, Assistant Attorney
General.
On July 13, 2002, the 43-year-old claimant was the victim of criminally
injurious conduct at a bar in Monongalia County. The claimant was struck in the
back of the head with a cue stick.
The claim was initially denied because the police report was unclear about what
took place with regard to the incident, and because the claimant’s intoxication
may have been a contributing factor. Immediately prior to this hearing, the
parties agreed that the testimony of the investigating officer would be taken,
and then the claim would be submitted to the Court for the determination of
economic loss. (Transcript, page 3.)
Trooper Devin Barger, who investigated the incident, testified that the
claimant did nothing to provoke the offender or cause himself to become a
victim. (Transcript, pages 5-6.)
It was also established that the claimant was covered by Medicaid, and so
incurred no medical expenses. The claimant was given leave to submit any
out-of-pocket medical expenses he may still have, and to document his work
loss. (Transcript, page 7.)
Attached to the Claim Investigator’s memorandum dated January 21,2004, was
correspondence from the claimant’s employer, Zeni Drilling Company. According
to their records, the claimant missed 12 weeks of work at a gross pay of
$5,160.00 for that period. The Claim Investigator, deducting 20% in taxes,
found the claimant’s net work
286 TABLE OF
CASES REPORTED [W.Va.
loss to be $4,128.00. An award in that sum is hereby granted as set forth in
the memorandum.
ORDER ISSUED JANUARY24, 2004
Denise Bumside
(CV-02-305)
ORDER
Claimant appeared in person.
Joy M. Boiling, Assistant Attorney General, for the State of West Virginia.
WEBB, JUDGE:
An application of the claimant, Denise Bumside, for an award under the West
Virginia Crime Victims Compensation Act, was filed August 12, 2002. The report
ofthe Claim Investigator, filed February 26, 2003, recommended that an award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on May 8, 2003, granting an award of $1,188.17 for medical expenses and
prescription costs. The claim was paid on or about May 22. 2003. On June 3,
2003, the claimant filed a request for hearing. The matter came on for hearing
September 30, 2003, claimant appearingpro se and the State of West Virginia by counsel, Joy M.
Bolling, Assistant Attorney General.
On August 15, 2000, the claimant’s sawmill operation in Harrison County
was destroyed by arson. As a result, the claimant suffered emotional stress and
incurred medical expenses.
Testifying at the hearing was the claimant’s physician, Dr. Carl W. Lievig, who
has been treating her since 1988. Dr. Lievig stated that the claimant was having
chest pain before the fire occurred, but that “stress and anxiety and
depression played a major role” and “certainly exacerbated her chest pain.”
(Transcript, page 8.) He also indicated that the claimant suffered from
headaches due to the crime, but that she had a “migraine history.” (Transcript,
page 10.)
The claimant testified that she was placed on nerve medication for two weeks
following the death of her daughter in 1997, and did well after that “until
this incident.” (Transcript, page 25.) The claimant stated that no one
has been arrested or charged in the arson incident, but they know who did it
and she still lives in fear because “he is around us all the time.”
(Transcript, page 26.)
The Court asked Dr. Lievig to explain the way he would divide her expenses,
i.e., the treatments and medications she received before the fire and after the
fire. (Transcript, page 21.) Dr. Lievig agreed to do so, and the claim was
submitted pending his report. (Transcript, page 26.)
By letter to Claim Investigator W.F. Martin, dated December 17, 2003, Dr.
Lievig verified which medical bills were related to the criminally injurious
conduct. Mr.
W.Va.] TABLE OF
CASES REPORTED 287
Martin prepared a memorandum dated January 20, 2004, in which he calculated the
claimant’s unreimbursed allowable expenses to be $1,906.63. An award in that
sum is hereby granted, with the claimant granted leave to submit documentation
of any additional allowable expenses relating to the incident in question.
ORDER ISSUED JANUARY30, 2004
Yvonne Corbett
(CV-98-3 1)
ORDER
Claimant appeared in person and by counsel, Michael A. Esposito, Attorney at
Law. Benjamin F. Yancey, 111, Assistant Attorney General, for the State of West
Virginia.
GRTTT, JUDGE:
An application of the claimant, Yvonne Corbett, for an award under the West
Virginia Crime Victims Compensation Act, was filed February 6, 1998. The report
of the Claim Investigator, filed August 19, 1998, recommended that no award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on October 22, 1998, upholding the Investigator’s recormnendation and
denying the claim, in response to which the claimant’s request for hearing was
filed November 17, 1998. This matter was scheduled for hearing five times and was
continued five times at the claimant’s request before finally coming on for
hearing November 20, 2003. The claimant appeared in person and by counsel,
Michael A. Esposito, and the State of West Virginia by counsel, Benjamin F.
Yancey, 111, Assistant Attorney General.
On or about March 14, 1997, the claimant’s 17-year-old daughter, Charisse
Corbett, was the victim of criminally injurious conduct in a rural area of
Logan County.
The claimant testified at the hearing that on the day in question her daughter
was visiting a girlfriend and wanted to go get something to eat. (Transcript,
page 5.) She accepted a ride from Lafayette Lipscomb, who drove her to a
gas station. (Transcript, page 6.) While there, offender Robert (“Bubby”) Adams
got into the back seat and shot them both in the back of the head. He then took
them to the back of the station where another assailant, Casey Rye, shot
Charisse four more times. (Transcript, page 6.) She was seven and one-half
months’ pregnant at the time.
According to the claimant, her daughter was not involved in any way in buying
or selling drugs, but was simply in the wrong place at the wrong time.
(Transcript, page 7.) The claimant stated that her daughter couldn’t even stand
cigarettes and tried to hide them from her mother so that she wouldn’t smoke.
(Transcript, pages 14-15). When questioned how a 17-year-old girl ended
up in a car with a 30-year-old man in the evening, the claimant explained that
“the other ride didn’t show up” and that all of them knew each other. (Transcript,
page 15.) She indicated that her daughter and Mr. Lipscomb were friends
and that “he had given her rides before.” (Transcript, page 12.)
288 TABLE OF
CASES REPORTED [W.Va.
When questioned whether she knew if Mr. Lipscomb were involved in drugs, she
replied, “No, I did not.” (Transcript, page 13.) She was also unaware of his
reputation in the community, as she had met him only three weeks prior to the
incident. (Transcript, page
14.)
The claimant proffered a funeral bill in the sum of $4,790.40 from Highland
Memory Gardens, which was admitted into evidence as Claimant’s Exhibit No. 2.
No one testified on behalf of the State. A subpoena had been issued for Trooper
Chambers, but he did not attend the proceedings.
Based on the record presented in this claim, the Court finds no evidence of
contributory misconduct on the part of the victim. The claimant is therefore
entitled to an award of $4.000.00, representing the maximum allowable award for
funeral and burial expenses under the statute in effect at the time, as set
forth in the Claim Investigator’s memorandum dated January 20, 2004.
ORDER ISSUED FEBRUARY 19, 2004
Annette M. (Jones) Dale
(CV-96-016)
ORDER
Claimant appeared in person and by counsel, Timothy P. Lupardus, Attorney at
Law. Doren C. Burrell, Senior Assistant Attorney General, for the State of West
Virginia.
GRITT, JUDGE:
An application of the claimant, Aimette M. Jones, for an award under the West
Virginia Crime Victims Compensation Act, was filed January 29, 1996. The report
of the Claim Investigator, filed October 28, 1996, reconunended that no award
be granted, to which the claimant filed no response. An Order was issued on
February 13, 1997, upholding the Investigator’s recommendation and denying the
claim, in response to which the claimant’s request for hearing was filed
February 21, 1997. This matter was scheduled for hearing three times, and was
continued three times, before finally coming on for hearing November 14, 2003.
The claimant appeared in person and by counsel, Timothy P. Lupardus, attorney
at law, and the State of West Virginia by counsel, Doren C. Burrell, Senior
Assistant Attorney General.
On February 13, 1994, the claimant’s 22- year old husband, Troy J. Jones, was
shot to death by Dennis Horn in Avondale, McDowell County. The offender was
charged with first-degree murder, but the case did not proceed because the
offender committed suicide. Claimant Annette Davis was married to the victim
and has a child by him, who is now eleven years old. The claimant seeks an
award for loss of income as a result of the murder. The initial denial of an
award was based on the alleged contributory misconduct of the victim. The Claim
Investigator determined from the police report that the victim failed to
retreat and take precautionary measures for his own safety.
W.Va.] TABLE OF
CASES REPORTED 289
Virgil Bailey, Jr., testified at the hearing of this matter. He was present at
the Riverbend Lounge on the night of the incident and was an eyewitness to the
crime. Mr. Bailey and a friend were at the Riverbend Lounge to speak to the
offender, Dennis Horn., about booking their band to play at the bar in the
future. (Transcript, page 4.) He did not know the victim prior to the incident.
Mr. Bailey testified that he first observed the victim speaking with the
offender while sitting at the bar having a beer. (Transcript, page 5.) A little later the victim purchased a six-pack of beer
at the bar and then left. (Transcript, page 8.) However, approximately fifteen
to twenty minutes later he came back to the front door and rang the bell.
(Transcript, page 5.)
Ms. Horn, who also worked at the bar,
answered the door. Upon seeing that it was the victim, she asked the offender
if he wanted the victim back inside. (Transcript, page 5.) The offender told her no, that he did not want the
victim to come back inside and that he should go home. (Transcript, page 5.) Suddenly, the victim knocked the door open and knocked
Ms. Horn out of the way, forcing his way in. (Transcript, page 5.) The victim proceeded to walk in slowly toward the bar
where the offender was standing with a 45.caliber pistol pointed at him.
(Transcript, page 5.)
According to Mr. Bailey, the offender
was telling the victim that “he did not want any trouble, to just go home and
they would talk about it later.” (Transcript, page 6.) Mr. Bailey stated that
he turned to look at his friend who was with him when suddenly the offender
fired the gun. (Transcript, page 6.) According to Mr. Bailey, he did not see
the offender fire the gun nor did he see exactly how close the victim was to
the offender when the gun was fired. (Transcript, page 6.) Further, he did not
recall the victim running at the bar or approaching the offender aggressively
in any manner. (Transcript, page 7.) However, Mr. Bailey admitted on
cross-examination that his memory of many of these events has dimmed some over
the past nine or ten years. (Transcript, page 9.) Thus, Mr. Bailey read into
the record the statement he gave to the West Virginia State Police on
Feruaryl4, 1994. (Transcript, page 12.) He stated in part:
On Sunday, February 13, 1994, at about 10:00, 1 was at Riverbend Lounge with
Wade Fletcher. We were there to speak with Dennis and Judy Horn about playing
at their club... I had nothing to drink that night that contained alcohol. I
was setting at a table with Wade Fletcher and Richard Church... T.J. had been
trying to pick fights all night with other people in the bar. He was also
sexually harassing women in the club including Judy Horn. T.J. threatened
Richard Church and continued to be very belligerent towards everyone in the
bar. He seemed to be highly intoxicated. After he left, everyone was relieved.
About ten (10) minutes passed and T.J. returned. Judy met him at the door and
told him he was too drunk and could not return inside. He became irate and
forced his way in the door.... Dennis told T.J. to leave at least eight (8) or
ten (10) times. Finally Dennis produced a gun and kept saying ‘Please T.J.
leave.’ Judy was on the phone trying to get T.J.’s dad on the telephone to come
and get T.J. out of the bar. T.J. slammed his fists down on the bar after
trying to get the phone from
290 TABLE OF
CASES REPORTED [W.Va.
Judy. When he slammed his fists on the bar I heard the gun go off and
saw T.J. fall to the floor. Dennis never aimed the gun, it just seemed to go
off....
Mr. Bailey stated that this appeared to be an accurate transcription of the
statement he gave to Trooper Duckworth of the West Virginia State Police a few
days following the incident. (Transcript, pages 12-13.)
Trooper Eddie L. Smith of the West Virginia State Police, one of the
investigating officers, also testified. He stated that he had received a
frantic emergency telephone call from Judy Horn, the wife of the offender, at
approximately 10:05 on the night in question According to Trooper Smith, Ms.
Horn advised him that Dennis Horn had shot the victim. (Transcript, page 16.)
Trooper Smith dispatched an ambulance to the scene and notified Trooper
Duckworth for assistance. Both officers responded to the scene. (Transcript,
page 17.) Based upon his investigation, Trooper Smith testified that the
offender, Dennis Horn, who owned and operated the Riverbend Lounge, had told
the victim to leave the bar several times while pointing a .45 caliber handgun
at him. (Transcript, page 17.) However, the victim refused to leave and
continued to approach the offender who was behind the bar. The victim slammed
his beer and his hand down on the bar at which time the offender shot the
victim. (Transcript, page 17.) Trooper Smith testified that he and Trooper
Duckworth believed that there was sufficient evidence at that time to charge
the offender with first-degree murder. (Transcript, page 18.) He stated that
there was not “just provocation” to allow the offender to just walk.
(Transcript, page 18.) He stated that is an issue for a jury to decide.
(Transcript, page 18.) Sergeant Smith also testified that during his
investigation he discovered that the victim had purchased Percocet, which is a
prescription narcotic painkiller and a controlled substance. (Transcript, page
19.) However, he admitted that the Medical Examiner’s report indicated that the
victim did not test positive for any narcotics. (Transcript, page
20.)
Trooper Greg Duckworth of the West Virginia State Police testified that he also
investigated the incident and took approximately eight different statements
from eyewitnesses. (Transcript, page 22.) He testified that these statements
were consistent with the sworn statement that Mr. Bailey made to Sergeant Smith
just after the incident and which was read into evidence at this hearing.
(Transcript, page 22.) He also learned through the investigation that the
offender was selling Percocets out of the bar and that he probably sold the
victim a six-pack of beer and sent him out of the bar with it. (Transcript,
page 24.) Trooper Duckworth also testified that while the offender was charged
with first-degree murder, he felt there was equal fault on both parties.
(Transcript, page 23.) He further indicated that the conduct of both the victim
and the offender was not anything that anyone would look favorably upon.
(Transcript, page 25.) However, he testified that the victim was the initial
aggressor, and had he not been killed, he could have been charged with assault,
trespassing, and purchase of a controlled substance. (Transcript, page 26.)
The claimant, Annette Jones Dale, testified that she was married to the victim
at the time of the incident and that they had one child together, who was two
years old at the time. (Transcript, page 30.) The claimant did not work while
she was married to
W.Va.J TABLE OF
CASES REPORTED 291
the victim and she had no other source of income other than what he earned as a
coal truck driver. (Transcript, page 31.) Ms. Dale testified that she and the
victim were at the Riverbend Lounge twice that day. (Transcript, page 32.) She
stated that they took their child there earlier when no one else was there
except for the offender and his wife, Judy Horn. (Transcript, page 32.)
According to the claimant, she and the victim had been good friends with the
offender and his wife, which is why they were visiting them with their child.
(Transcript, page 32). They left and took the child to his grandparents’ house
and returned to the bar together later that night around 7:00 p.m. (Transcript,
page 32.) The claimant stated that the victim did not bring any alcohol with
him to the bar but was drinking beer he had purchased there. (Transcript, page
32.) Later that night, a girl at the bar approached the claimant and told her
that she needed to speak to her in private. She proceeded to tell the claimant
that the victim had said something “pretty nasty” to her and that it had
something to do with pills. (Transcript. page 33.) The claimant stated that she
was already upset about “the pills” and upon hearing this she became “irate”
and confronted the victim about it by shoving him numerous times. (Transcript,
page 34.) The victim grabbed claimant by the hair to get her to stop.
(Transcript, page 34.) She stated that at this point, she realized that she had
gone too far. (Transcript, page 34.) She decided to leave the bar at this time,
which she estimated to have been between 11:00 and 11:30 p.m. (Transcript, page
34.) This was the last time that she saw the victim alive. (Transcript, page
34.) The claimant testified that she did not believe that the victim was guilty
of contributory misconduct. She described the victim as a good father, and said
that he was not by nature a troublemaker or bad person. (Transcript, page 38.)
According to the claimant, the narcotic painkillers and alcohol did not
contribute to, nor have anything to do with, the victim’s conduct (Transcript,
page 43.) It was her opinion that the trouble started after the victim left the
bar the first time when one of the individuals in the bar tried to get him mad
at the victim over some issues. (Transcript, page 43.) Additionally, she
believed that there were persons in the bar who did not want him there and were
intentionally provoking the offender not to let the victim back in.
(Transcript, page 44.) She also believed that when the victim came to the door
to get back into the bar, he was surprised that he was not allowed back in and
probably just wanted to talk to the offender to find out what the problem was.
(Transcript, page 45.)
She did not believe that he was going
to do anything violent or aggressive, but that he only wanted to talk to the
offender, whom he considered his friend. (Transcript, page 45.)
W.Va. Code §14-2A-3(1) defines
“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.”
Further, 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 of the victim through whom a claim is made. When a victim’s
actions fall without the express
292 TABLE OF
CASES REPORTED [W.Va.
wording of contributory misconduct as defined in W.Va. Code § 14-2A-3(l), 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).
In the instant claim, the Court is of the opinion that the claimant failed to
present sufficient evidence that would cause this Court to change its opinion
that the claimant was guilty of contributory misconduct. While the Court is
repulsed by the criminal conduct of the offender, only innocent victims of
crime may be granted awards. The evidence established that the victim had been
drinking on the evening at issue and had a blood alcohol content of 0.25%. In
addition, there was evidence that the victim had taken some narcotic
painkillers that night. The claimant admitted that she saw him take probably
two narcotic painkillers while she was with him. Given these facts along with
eyewitness testimony, it is evident that the victim was highly intoxicated.
Further, the Court is of the opinion that there was a causal connection between
the victim’s consumption of alcohol, the use of a controlled substance, and his
subsequent death. This constitutes contributory misconduct under W.Va. Code § 14-2A-3(l). Further, the Court has declined to make an
award in prior cases where the victim was intoxicated and/or used a controlled
substance. See In re Rebrook, CV-90-102 (1991); In re Phalen CV-89- 258
(1990). The victim’s actions in forcing his way back into the bar by
shoving the offender’s wife is also evidence that he was highly intoxicated. In
addition, the victim’s refusal to stop or to turn away once the offender
brandished a handgun is also indicative of someone who is highly intoxicated.
Further, the evidence presented at the hearing also established that the
victim’s behavior, whether due to intoxication or not, was unlawful and
intentionally tortious. While the Court is not, under any circumstances,
justifying the offender’s conduct, it cannot ignore the victim’s conduct
either, which was intentionally tortious at the least. The victim was
trespassing when he forced his way back into the bar and refused to leave. He
committed an assault upon the offender’s wife when he shoved her. Further, the
victim continued approaching the bar where the offender was standing while
pointing a .45 caliber handgun at him, and allegedly slammed his fists on the
bar. This constitutes an assault and clearly contributed to the victim’s death.
Further, the Court is of the opinion that the victim’s conduct was not that of
an ordinary prudent person. It is clearly foreseeable that a person pointing a
gun at another who, for whatever reason, is threatening to fire it may in fact
do so. Thus, while the Court finds the offender’s conduct repulsive, it cannot
grant the victim an award in this claim based on his contributory misconduct.
The Court is constrained by the evidence to stand by its previous ruling;
therefore, this claim must be, and the same is hereby denied.
W.Va.] TABLE OF
CASES REPORTED 293
ORDER ISSUED FEBRUARY 19, 2004
Lana Graley
(CV-0l-083)
ORDER
Claimant appeared in person and by counsel, Timothy P. Lupardus, Attorney at
Law. Doren C. Burrell, Senior Assistant Attorney General, for the State of West
Virginia.
GRTTT, JUDGE:
An application of the claimant, Lana (Blankenship) Graley, for an award under
the West Virginia Crime Victims Compensation Act, was filed March 12, 2001. The
report of the Claim Investigator, filed July 10, 2001, recommended that no
award be granted, to which the claimant filed no response. An Order was issued
on August 9, 2001, upholding the Investigator’s recommendation and denying the
claim, in response to which the claimant’s request for hearing was filed August
22, 2001. This matter came on for hearing November 14, 2003, claimant appearing
in person and by counsel, Timothy P. Lupardus, Attorney at Law, and the State
of West Virginia by counsel, Doren C. Burrell, Senior Assistant Attorney
General.
On or about November 10, 2000, the claimant’s 19-year-old son, Nicholas J.
Huff, was fatally stabbed by John Ray Belcher in Hanover, Wyoming County. The
offender was indicted for first- degree murder. He was found guilty of
voluntary manslaughter and is currently serving a prison sentence.
The basis for the initial denial of the claim was the victim’s contributory
misconduct. The Claim Investigator determined from the police report and statements
fromwitnesses that the victim had been drinking alcoholic beverages while
underage, and that he had provoked the alleged offender into a fight. It was
the Claim Investigator’s opinion that these actions contributed to his death.
Sergeant Will Hall of the Wyoming County Sheriff’s Department testified at the
hearing of this matter. He investigated the murder ofNichoias Huff which
occurred on the date in question at approximately 11:30 p.m. at the residence
of Timmy Cline, age twenty-two. According to Sergeant Hall’s investigation,
there was a party at Timmy Cline’s residence that evening with nine people
present. (Transcript, pages 38-39.) Tina Clower and her two daughters lived at
Timmy Cline’s residence and were all present. Tina Clower was thirty-seven
years old at the time of this incident. Her oldest daughter, Crystal Clower,
was sixteen or seventeen years old. Kandace Clower, the youngest daughter, was
fourteen. Also in attendance were Alex Morgan, age twenty-four, Jeremy Rowe,
age nineteen, Bobby Cline, age eighteen, and the victim Nicholas Huff, age
nineteen. (Transcript, page 25.) All of these individuals knew each
other and had been friends for a long time (Transcript, page 25.) Sergeant
Hall also determined during his investigation that everyone at the party was
consuming alcoholic beverages with the exception of Crystal Clower and Kandace
Clower. In addition, there were at least three persons including the victim who
were drinking alcohol while underage. The offender, John. Ray Belcher, age twenty-seven,
arrived at the party alone and brought his own
294 TABLE OF
CASES REPORTED [W.Va.
twelve-pack of beer (Transcript, page 47.) Mr. Beicher is related to Bobby
Cline and Timmy Cline. (Transcript, page 25.) According to Sergeant Hall’s investigation, the incident began when
John Ray Belcher said something to Kandace Clower that upset her and resulted
in an argument. (Transcript, pages 33-34.) Kandace Clower became upset and
began crying. She went to her bedroom and lay on her bed (Transcript, page 34.)
The victim, Nicholas Huff, went back to the bedroom to see if she was all right
(Transcript, page 34.) The offender then came to the bedroom and stood at the
door. The victim asked him what he had said or done to Kandace Clower to make
her so upset. (Transcript, page 34.) The offender became angry and replied by
yelling at the victim that he did not do anything to her. At this point, Alex
Morgan and Jeremy Rowe came back to the bedroom to see why there was yelling
between the victim and the offender. (Transcript, page 34.) According to a
statement obtained by Sergeant Hall from Alex Morgan, the offender grabbed the
victim by the shirt and started shoving him. (Transcript, page 34.) The victim
told the offender that he did not want to fight in the house but that if the
offender wanted to fight they could take it outside. (Transcript, page 34.) The
verbal altercation evolved into a physical altercation once the victim and the
offender went outside. (Transcript, page 35.) Sergeant Hall testified that it was never established during the
investigation when or from which part of the house the offender obtained a
“grill fork.” (Transcript, page 35.) However, Sergeant Hall testified that Timmy Cline made a statement
during the investigation that the offender stuck the grill fork in his back
pocket while walking outside. (Transcript, page 41.) He testified that he
obtained a statement from Alex Morgan that the offender and the victim began
fistfighting once they were outside. In addition, Alex Morgan stated that he
saw the offender reach around to his back pocket and pull something out which
he raised up and struck the victim with in the side near his lungs. According
to Alex Morgan’s statement to Sergeant Hall, he ran to help get the offender
off of the victim and when he did so, the offender stood up, drew back, and
swung the weapon at him striking him in the back but causing little injury.
Jeremy Rowe, an eyewitness, made a statement to Sergeant Hall that he saw the
offender and victim fistfighting outside when suddenly, the offender pulled out
a “turkey fork” and stabbed the victim in the left portion of his chest. Jeremy
Rowe corroborated Alex Morgan’s statement to Sergeant Hall. Jeremy Rowe
informed Sergeant Hall that Alex Morgan tried to help the victim from being
stabbed again, and that the offender tried to stab Mr. Morgan. According to
Sergeant Hall’s investigation, Jeremy Rowe struck the offender at this time
causing him to drop the fork. After the victim was stabbed, Alex Morgan and
Jeremy Rowe fought the offender forcing him to retreat inside the house.
(Transcript, pages 42-43.) Further, Sergeant Hall obtained a statement from
Bobby Cline that he observed the offender pull out “the fork” and stab the
victim near his ribs. A number of people called 911 and the victim was taken by
ambulance to the hospital where he was pronounced dead. The Medical Examiner’s
report indicated that the victim had died as the result of a double stab wound
to the left portion of his chest which was consistent with a single thrust of a
“barbecue fork.” The Medical Examiner’s report also indicated that the path of
the stab wound was “front to back, left to right and upwards,” and
approximately two and one-half inches deep. Further, the report indicated that
the victim had a blood alcohol content of 0.09% and that he tested positive for
“past marijuana use,” which means that the victim had not been
W.Va.J TABLE OF
CASES REPORTED 295
using marijuana on the night of the incident. (Transcript, pages 45-49).
While Sergeant Hall testified that the victim was underage and tested
positive for alcohol, he was not intoxicated. (Transcript, page 46.) The blood
alcohol content presumption for intoxication is .10% which the victim had not
reached. (Transcript, page 46.) However, Sergeant Hall said that he did believe
that alcohol consumption played a significant role in the events that occurred
that night. (Transcript, page 47.) In his opinion, alcohol consumption in
general creates a heightened chance of a fight occurring because it can make
some individuals more aggressive. (Transcript, page 48.) He testified that the
offender appeared to be intoxicated and that his intoxication played a role in
his actions. (Transcript, pages 48-49.) However, he did not find any evidence
to suggest that alcohol played a role in the victim’s behavior. (Transcript,
page 48.) It was Sergeant Hall’s determination that the victim did not at any
point start a fight or act as the aggressor. (Transcript, page 35.) It
was determined by Sergeant Hall that John Ray Belcher was the aggressor.
(Transcript, page 35.) Kandace Clower testified at the hearing that
people began gathering at Timmy Cline’s house at approximately 10:00 p.m. or
11:00 p.m. for a party. (Transcript, page 24.) She indicated that everyone at
the party was drinking except for her and her sister. She stated that John Ray
Beicher was drinking beer and seemed to be drunk. (Transcript, page 14.) In
addition, she stated that he was mad and demonstrating a bad temper that
evening. (Transcript, page 14.) According to Kandace, the offender approached
her and began making hateful and derogatory comments that upset her.
(Transcript, page 8.) He told her that he was her real father and that she was
hanging out with the wrong crowd. (Transcript, page 9.) As a result, Ms. Clower
became very upset and began crying. (Transcript, page 10.) She corroborated
earlier testimony from Sergeant Hall that she went to her bedroom and lay on
her bed. (Transcript, page 10.) According to Ms. Clower, she and the victim had
been talking earlier along with all the other guests at the house that evening.
(Transcript, page 10.) In addition, she stated that the victim was being nice
and considerate when he went to her bedroom and asked if she was all right.
(Transcript, page 10.) However, the next thing she noticed was the offender
standing at her bedroom door. (Transcript, page 10.) Ms. Clower testified that
the victim simply asked John Belcher what he did to make her cry. The offender
responded by yelling at the victim and cursing at him saying that he did not do
anything to her (Transcript, page 10.) Ms. Clower testified that the offender
continued yelling and acting aggressively towards the victim and asked him if
he wanted to fight (Transcript, page 10.) The victim told John Belcher that if
he wanted to fight, they should go outside and not fight in the house
(Transcript, page 10.) According to Ms. Clower, John Belcher aggressively
started after the victim as if he was going to hit him (Transcript, page 11.)
However, Alex Morgan and Jeremy Rowe held the offender to prevent him from
attacking the victim (Transcript, page 10.) Ms. Clower also stated that in
order for the victim to exit her bedroom at that time, he would have had to
have walked past the offender, and he would have been forced to leave her alone
with the offender (Transcript, page 12.) According to Ms. Clower, all the
parties left her bedroom shortly after these events and she watched them walk
down the hallway (Transcript, page 12.) She did not see or hear anything else
until her sister came running back inside to tell her that the offender and the
victim were outside fighting (Transcript, page 13) She ran outside and observed
the victim leaning against a car and heard him say that he had been
296 TABLE OF
CASES REPORTED [W.Va.
stabbed (Transcript, page 13.) Further, Ms. Clower testified that earlier in
the evening the offender was having a bad argument with a girl on the telephone
and was yelling at her (Transcript, page 30.) She believes that this argument
made him angry and put him in a violent and aggressive mood (Transcript, page
29.) In addition, she stated that the offender had a romantic interest in her
sister, despite the fact that she was underage (Transcript, page 29.) According
to Ms. Clower, the offender was mad and jealous because she and her sister were
talking to other guys at the party (Transcript, page 29.) However, she also
stated that the offender was not in any way dating her sister (Transcript, page
30.) Thus, she did not understand why the offender took such an interest in
whom she and her sister were talking to that evening, nor could she state why
he yelled at her. (Transcript. page 30.) Further, she testified that the victim
did not do anything to the offender all evening and that the offender was the
aggressor between the two. (Transcript, page 9.) Ms. Clower also testified that
the victim did not seem to be drunk, and none of his conduct appeared to be the
result of alcohol consumption. (Transcript, page 16.)
The claimant, Lana Graley, testified that she was expecting her son to arrive
back home between 10:30 p.m. and 11:00 p.m. on the date of this incident.
(Transcript, pages 61-62.) He and Alex Morgan had been on a job site in North
Carolina. The claimant testified that her son had a good reputation in the
community for being a kind person. (Transcript, page 58.) Tn addition,
she knew him to be a kind-hearted person who would go out of his way to help
other people. (Transcript, page 64.) The claimant did not believe that her son
knew the offender prior to this incident. (Transcript, page 58.) The
victim lives at home with his mother but travels a lot because of the nature of
his job. (Transcript, pages 55-56.) The claimant stated that he
contributed income on a monthly basis to help her in the amount of $300.00 and
sometimes $400.00 depending on the size of his paycheck. (Transcript, page 57.)
Ms. Graley is married and has two other sons that do not live at home
(Transcript, page 68.) The claimant, her husband, who is the victim’s
stepfather, and the victim lived at her home. Her husband is a disabled
veteran, and the claimant’s only source of income is through her husband’s
Veterans Administration benefits. (Transcript, page 67.) The claimant is
seeking an award for lost income as a result of the death of her son. In
addition, the claimant incurred funeral expenses of $6,416.70, for which she
also seeks an award. (Transcript, page 55.)
W.Va. Code §
14-2A-3(1) defines “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.”
Further, 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 of the victim through whom a claim is made. When a victim’s
actions fall without the express wording of contributory misconduct as defined
in W.Va. Code §
l4-2A-3(1), the Court will then look to
the purpose and intent of the Act. The Act established a system of
W.Va.] TABLE OF
CASES REPORTED 297
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).
In the present claim, it is evident that the victim Nicholas Huff did not
commit any unlawful or tortious acts. The evidence adduced at the hearing
established that the victim was not the aggressor in this incident and did not
do anything to provoke this savage and cowardly attack. The evidence also
established that the victim did not know, nor should he have known, that the
offender had picked up a barbecue fork on his way out the door. The offender
had not threatened the victim with a weapon nor had he brandished the barbecue
fork or any type of weapon. The evidence established that the offender picked
up the barbecue fork without the victim’s knowledge and kept it hidden until
both parties were outside, at which time the offender used it to savagely murder
him. Given the circumstances, the actions of the victim were not unreasonable.
if the victim had known that the offender had the weapon, he most assuredly
would have chosen a different course of action. However, the evidence
established that he was only trying to check on the well-being of Kandace
Clower, a fourteen-year-old girl, who was visibly upset as a result of the
conduct of the offender. When the offender had the audacity to follow the
victim and the young girl to her bedroom, the one place she hoped to get away
from him, the offender made matters worse by yelling and trying to attack the
victim in front of Ms. Clower. The victim was already concerned about Ms.
Clower and did not want the offender to continue to yell, threaten, and fight
in her presence, especially in her bedroom. Thus, it was not unreasonable for
the victim to want to get the offender out of the house and away from the young
girl, which is exactly what happened. Further, the evidence indicated that the
offender was intoxicated, angry, and extremely aggressive that night. It
appears from the testimony and the police report that the offender had some
sort of romantic feelings towards Crystal Clower, and became angry and jealous
because she and her sister were talking to the other young men at the party. In
addition, the offender had been in a heated argument on the telephone with
another female acquaintance earlier in the evening which had angered him. It is
not clear from the evidence why the offender, age twenty-seven, was harassing
Kandace Clower, age fourteen. The evidence established that the victim was only
trying to help protect a young girl, and paid for it with his life. The
victim’s conduct was not that of an aggressor nor of a person intoxicated.
Thus, the Court finds that the victim, Nicholas Huff, was not guilty of
contributory misconduct, and therefore the claimant Lana Graley is not barred
from any award in this claim.
The facts giving rise to this tragedy remain very disturbing to the Court. Tina
Clower, an adult, permitted people to gather in her home with her two minor
daughters to party. Further, law-enforcement officials, whose duty it is to
uphold our state statutes, chose to ignore the illegal underage drinking that
occurred that night.
298 TABLE OF
CASES REPORTED [W.Va.
In view of the foregoing, the Court is of the opinion to and does hereby make
an award of $4,000.00, representing the statutory maximum in effect at the time
for funeral expenses, as set out below.
Mounts Funeral Home, Inc.
P.O. Box 1567
Gilbert WV 25621
FE1N: 55-0584625 $3,918.70
Lana Graley
P.O. Box 1044
OceanaWV2487O $ 81.30
Total $4,000.00
ORDER
ISSUED FEBRUARY 19, 2004
Patricia Moore
(CV-0 1-269)
ORDER
Claimant appeared in person.
Benjamin F. Yancey, 111, Assistant Attorney General, for the State of West
Virginia.
GRITT, JUDGE:
An application of the claimant, Patricia Moore, for an award under the West
Virginia Crime Victims Compensation Act, was filed July 30, 2001. The report of
the Claim investigator, filed March 1, 2002, recommended that no award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on April 19, 2002, upholding the investigator’s recommendation and
denying the claim, in response to which the claimant’s request for hearing was
filed May 1, 2002. This matter came on for hearing November20, 2003, claimant
appearingpro se
and the State ofWest Virginia by
counsel, Benjamin F. Yancey, 111, Assistant Attorney General.
On August 13, 1999, the claimant’s 23-year-old son, Robert Moore, was the
victim of criminally injurious conduct in the Witcher Creek area of Kanawha
County. The victim was fatally stabbed by his cousin, Timothy Hancock, who was
indicted on a charge of first-degree murder. He was convicted of first-degree
manslaughter.
Testifying at the hearing was the claimant, Patricia Moore. Ms. Moore stated
that her son had purchased a car from Richard Taylor but was told by the DMV
that there was something wrong with the title. (Transcript, page 7.) Richard
Taylor, Timmy
W.Va.] TABLE OF
CASES REPORTED 299
Hancock, and Andy Hall arrived at the Moore residence at 4:40 p.m. on the day
in question. The claimant’s mother advised Robert to go to the deputy’s station
to “get this straightened out.” (Transcript, page 7.) They did so, but the
station was closed, so Richard Taylor took Robert to Timco’s, ajunkyard dealer,
to get a tire. (Transcript, page 8.) Unable to get one, they proceeded to itchy
Pierson’s on Simmons Creek. There, they were unsuccessful in obtaining a title.
The claimant testified that her son Robert gave Richard Taylor 24 hours to
“have him a title.” (Transcript, page 8.)
The claimant revealed that four days after the incident, Richard Taylor came to
her house and told her that “Robert was leaving to meet a girl and Timmy ran
out behind the truck and stabbed him in the back.” (Transcript, page 8.)
Richard Taylor had no idea what provoked the attack, he said, because he was
drunk. He also informed the claimant that Robert wasn’t drinking. (Transcript,
page 9.)
Ms. Moore testified that it was not uncommon for people to congregate in that
area, but Robert would not have done so because those people were not his age.
(Transcript, page 10.) Other people have told her that Robert was sober that
evening, but no one appeared to testify at the hearing.
When asked why Robert was there, the claimant reiterated that he was trying to
get a title for the car, and that he was on his way to meet his girlfriend
Amanda. (Transcript, page
15.)
Upon cross-examination, the claimant was asked how late her son was out the
previous evening. She replied that he came in “at 5:30 in the morning and he
was.. .partying with friends of his in his age group.” (Transcript, page 18.)
The claimant stated that her son’s truck was not down in the swimming hole
area, but was beside the road. She admitted that her son knew of the swimming
hole’s reputation, and that is why his vehicle remained beside the road. She
surmised that someone had flagged him down or he stopped to drop off Andy Hall.
(Transcript, page 19.)
Lieutenant Ray Flint of the Kanawha County Sheriff’s Department testified that
he arrived on the scene after the initial officer, Deputy Chris George.
Lieutenant Flint stated that he took no statements that night, but did speak
with several witnesses later. Those witnesses revealed that “some type of
argument developed between Mr. Hancock and Mr. Moore...and progressed into a
physical altercation.” (Transcript, page 25.) He did not know the reason for
the argument, but that possibly Mr. Hancock threw the first punch. (Transcript,
page 26.) When questioned about the victim’s drinking, Lieutenant Flint stated
that the medical examiner’s report showed a blood alcohol content of .18%.
(Transcript, page 28.)
From the evidence and testimony presented in this claim, the Court finds that
Robert Moore was an innocent victim of crime. He suffered a stab wound to the
back, and his attacker was convicted of first-degree manslaughter. Robert
Moore’s actions on the evening in question do not rise to the level of
contributory misconduct, which is defined in W.Va. Code § 14-2A-3(l) 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 The Court finds that the
interests ofjustice require an award in this case.
300 TABLE OF
CASES REPORTED [W.Va.
According to the claimant’s application, funeral and burial expenses of over
$10,000.00 were incurred. The statute in effect at the time provided a maximum
award of $4,000.00 for funeral and burial expenses. Therefore, an award in that
sum is hereby granted as set out below.
Patricia Moore
P.O. Box 492
Belle WV 25015 $4,000.00
ORDER ISSUED AUGUST20, 2004
KimE. Woody
(CV-02-4 13)
ORDER
Claimant appeared in person.
Benjamin F. Yancey, 111, Assistant Attorney General, for the State of West
Virginia.
GRITT, JUDGE:
An application of the claimant, Kim E. Woody, for an award under the West
Virginia Crime Victims Compensation Act, was filed October 10, 2002. The report
of the Claim Investigator, filed June 17, 2003, recommended that no award be
granted, to which the claimant filed no response. An Order was issued on August
11, 2003, upholding the Investigator’s recommendation and denying the claim, in
response to which the claimant’s request for hearing was filed September 16,
2003. This matter came on for hearing March 25, 2004, claimant
appearingpro se
and the State of West Virginia by
counsel, Benjamin F. Yancey, III, Assistant Attorney General. The claim was
held open for the taking of additional testimony on April 8, 2004.
On October 27, 2000, the claimant’s I 7-year-old daughter, Whitney Blake Woody,
was tragically killed in a motor vehicle accident in Charleston, Kanawha
County. She had been the passenger of an intoxicated driver, who was speeding,
lost control, and struck a tractor trailer. This Court’s initial denial of an
award was based on the victim’s alleged contributory misconduct. The victim had
been voluntarily riding in a motor vehicle operated by an intoxicated driver,
and she knew or should have known of the driver’s condition.
Two police officers from the town of Marmet were subpoenaed but failed to
appear at this hearing. The claimant testified from her own recollection and
from notations on the police logs. According to the claimant, her daughter
Whitney was at home on the evening in question until 9:00 or 9:30, and she was
completely coherent. Whitney left with a friend, Summer King, and sometime
later got together with Summer’s cousin, Holli Stanley. According to Officer
Buttrick’s daily log, an emergency 911 call came in at 1:30 a.m., and he and
another officer responded at 1:38 a.m. The action taken
W.Va.] TABLE OF
CASES REPORTED 301
was to have the driver, Holli Stanley, move her vehicle off 83 Street. The
officers resumed patrol until another call came at 2:04 a.m. regarding a motor
vehicle accident in Kanawha City. That accident involved the same vehicle
driven by Holli Stanley and in which Whitney Woody was a passenger.
It is the claimant’s contention that the officers should have taken firmer
action during their first encounter with the driver, Holli Stanley, and that
had they done so, her daughter might not have perished in the second incident
which occurred less than one half hour later. The claimant also argues that if
two trained police officers allowed an impaired driver to remain on the road,
how was her minor daughter to know that the driver was too intoxicated to
operate a motor vehicle?
Turning to the issue of damages, the claimant revealed that she received
$20,000.00 in insurance proceeds from the driver’s policy, $20,000.00 from her
own policy, and $255,000.00 fromthe tractor trailer company’s policy. The Court
advised the claimant that her collateral sources exceeded her economic loss,
and she agreed. The claimant stated that the money was irrelevant.
The second hearing of this matter was held April 8, 2004. Appearing to testify
was Officer Charles Buttrick of the Marmet City Police Department. The other
officer who had been subpoenaed for the first hearing, retired officer Tom
Jones, was excused from appearing because of health problems. Subpoenas were
also issued for Michael Willis and Gerald Crum, who had signed affidavits on
behalf of the claimant, but their whereabouts are unknown.
According to Corporal Buttrick, on the evening in question, he was driving the
patrol car and Sergeant Jones was his passenger when they responded to the
first emergency call about a reckless driver in the 8400 block of MacCorkle
Avenue. When they arrived, they saw a Camaro parked in the middle of the
roadway. Sergeant Jones exited the patrol car and made contact with the driver
of the Camaro. He instructed her to move the vehicle to the back of the
apartment building. When he returned to the patrol car, Sergeant Jones told
Corporal Buttrick that Holli Stanley was the driver, but he said nothing about
her condition. When asked whether Sergeant Jones knew Holli Stanley before that
evening, Corporal Buttrick indicated that they may have dealt with her on
different occasions.
Without the benefit of the two witnesses she had subpoenaed, the claimant read
from their affidavits. Gerald Cram, who had made the 911 call, said that when
he went outside his apartment, two girls exited the car. When the driver walked
past him toward another apartment, he could tell that she was highly
intoxicated. She was noticeably staggering and very loud and boisterous. Ten
minutes later, the girls left the apartment building and walked toward the
Camaro as the Marmet City police officers arrived.
The affidavit of Michael Willis indicated that he heard the entire exchange
between the officers and the girls. He heard Holli Stanley admit that she had
been drinlcing that night. At no time did either officer ask to see either
girl’s identification or driver’s license. According to Mr. Willis, the police
spent approximately fifteen minutes with them before they left.
The record clearly establishes that the officers did nothing to apprehend or
restrain the impaired driver in this tragic incident. Their failure to do so
was an intervening cause that superseded any contributory misconduct on the
part of the victim.
302 TABLE OF
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Therefore, the Court finds that the claimant herein would have been entitled to
the maximum statutory award of $6,000.00 for funeral and burial expenses, but
for the fact that her collateral sources greatly exceeded her actual
out-of-pocket expenses. Accordingly, no award may be made.
ORDER ISSUED AUGUST31, 2004
Catherine D. Tate
(CV-00-434)
ORDER
Claimant appeared in person and by counsel, Charles R. Webb, Attorney at Law.
Joy M. Bolling, Assistant Attorney General, for the State of West Virginia.
BAKER, JUDGE:
An application of the claimant, Catherine D. Tate, for an award under the West
Virginia Crime Victims Compensation Act, was filed November 6, 2000. The report
of the Claim investigator, filed May 23, 2001, recommended that no award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on July 18, 2001, upholding the Investigator’s recommendation and
denying the claim, in response to which the claimant’s request for hearing was
filed October 4, 2001. Scheduled for hearing on October 19, 2001, the matter
was continued at the request of the claimant. Rescheduled for May 23, 2002, and
again continued, the claim was heard on July 11, 2002. The claimant appeared in
person and by counsel, Charles R. Webb, and the State of West Virginia by
counsel, Joy M. Bolling, Assistant Attorney General.
On August 19, 2000, the 37-year-old claimant was the victim of criminally
injurious conduct in St. Albans, Kanawha County. The claimant was injured while
performing her duties as a licensed practical nurse at the Crisis Residential
Unit of Shawnee Hills. She was suddenly attacked by one of the male residents.
He rushed at her, striking her chest and holding her neck and left arm, causing
her head to strike a shelf. The offender was then restrained by several
individuals.
It is undisputed that the claimant was an innocent victim of crime. At issue is
the existence of a collateral source to offset her allowable expenses.
Since the claimant was injured at her place of employment, her losses should
have been covered by Workers’ Compensation. However, the claimant testified at
the hearing that Workers’ Compensation paid only fifty per cent (50%)of her
wages, and that there were prescription costs and othermedical expenses for
which coverage was denied. The claimant also stated that she appealed the
denial of coverage, and therefore exhausted her administrative remedies.
By memorandum to this Court dated July 26, 2004, the Claim Investigator
calculated the claimant’s actual out-of-pocket losses to be $5,560.35. Accordingly,
an award in that sum is hereby granted as set forth in said memorandum. Should
the
W.Va.] TABLE OF
CASES REPORTED 303
claimant later submit proof of any additional unreimbursed allowable expenses
relating to this incident, they will be reviewed by the Court at that time.
ORDER ISSUED OCTOBER 7, 2004
Linda L. Feathers
(CV-03-437)
ORDER
Claimant appeared in person and by counsel, Timothy J. Manchin.
Ronald L. Reece, Assistant Attorney General, for the State of West Virginia.
FORDHAM, JUDGE:
An application of the claimant, Linda L. Feathers, for an award under the West
Virginia Crime Victims Compensation Act, was filed August 29,2003. The report
of the Claim Investigator, filed January 23, 2004, recommended that no award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on March 25, 2004, upholding the Investigator’s recommendation
and denying the claim, in response to which the claimant’s request for hearing
was filed April 7, 2004. This matter came on for hearing July 14, 2004,
the claimant appearing in person and by counsel, Timothy J. Manchin, and the
State of West Virginia by counsel, •Ronald L. Reece, Assistant Attorney
General.
On September 25, 2002, the 39-year-old claimant was the victim of
criminally injurious conduct in Harrison County. The claimant was driving her
vehicle when the
vehicle struck a boy riding on a motorcycle. The father of the juvenile saw the
incident and ran to the scene of the accident where he got into an argument
with the claimant. The argument escalated to a physical confrontation between
the father of the juvenile and the claimant.
As a result of the attack, the claimant suffered unspecified injuries and work
loss. Her medical expenses were covered under Medicaid.
This Court’s initial denial of an award was based on the fact that it was
unclear about what took place with regard to the incident, as the police report
contained conflicting statements surrounding the events that took place. In a
prior claim where a claimant was in a public place and suffered a beating in an
altercation among the claimant, his companions, and other individuals, the
records were not clear as to who started the fight. The Court held that when
making awards under the crime victims statute, the Court looks to the innocence
of the victim. When that innocence is in doubt, the Court cannot grant an
award. That claim was disallowed. In re Reichert, CV-03-08 (2003), In
re Robinson, CV-0 1-340 (2002).
At the hearing, two witnesses testified on behalf of the claimant. Karen Barnes
was in the vehicle with the claimant when the claimant’s vehicle struck the boy
on the motorcycle. Ms. Barnes testified that Ms. Feathers had gotten out ofthe
vehicle to check
304 TABLE OF
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on the well-being of the boy when the boy’s father, Robert Dennison, shoved her
out of the way. Ms. Barnes stated that Mr. Denni son and Ms. Feathers then
started arguing with each other. Mr. Dennison then grabbed the claimant by the
hair, threw her on the ground, and hit her in the side of the face. He then
kicked her a couple of times and stomped on her foot. Ms. Barnes testified that
Ms. Feathers did not retaliate at anytime, nor did she do anything to provoke
Mr. Dennison.
Bernard Burge also testified on behalf of the claimant. Mr. Burge had been
talking with Mr. Dennison prior to the incident. Mr. Burge testified that after
the accident, Mr. Dennison had been yelling at Ms. Feathers. Mr. Dennison then went
after the claimant, striking her in the jaw, causing her to go to the ground.
Mr. B urge stated that Mr. Dennison struck the claimant several times while she
was on the ground. He further testified that Ms. Feathers had eventually gotten
up, was upset, and threw her keys at Mr. Dennison, at which time further words
were exchanged. Mr. Burge stated that Mr. Dennison then grabbed the claimant by
the hair, threw her on the ground and kicked her a couple times. Mr. Burge
testified that at no point had Ms. Feathers done anything to provoke Mr.
Dennison.
The respondent, upon hearing the testimony from Ms. Barnes and Mr. Burge,
conceded the fact that Ms. Feathers was an innocent victim, and was prepared to
make an award in her claim, based upon further inquiries into her economic
loss. The Claim Investigator then made the determination that the claimant’s
medical expenses were covered by Medicaid, but that she had work loss in the
amount of $3,422.00. The claimant also incurred $44.00 in prescriptions related
to this incident. Based upon this evidence and the concession by the respondent
that the claimant was an innocent victim, an award is granted for the
claimant’s work loss and prescriptions paid in the sum of $3,466.00 as set
forth in the Claim Investigator’s memorandum of September 29, 2004. Should the
claimant later submit evidence of any additional unreimbursed allowable
expenses relating to this incident, they will be reviewed by the Court at that
time.
ORDER ISSUED DECEMBER 2, 2004
Gerald Allen Burford, Jr.
(CV-02-534)
ORDER
Claimant appeared in person and by counsel, David R. Karr, Jr.
Benjamin F. Yancey, III, Assistant Attorney General, for the State of West
Virginia. FORDHAM, JUDGE:
An application of the claimant, Gerald Allen Burford, Jr., for an award under
the West Virginia Crime Victims Compensation Act, was filed December 10, 2002.
The report of the Claim Investigator, filed April 10, 2003, recommended that no
award be granted, to which the claimant filed a response in disagreement. An Order
was issued on
W.Va.] TABLE OF
CASES REPORTED 305
October 30, 2003, upholding the
Investigator’s recommendation and denying the claim, in response to which the
claimant’s request for hearing was filed November 21, 2003. This matter came on
for hearing June 25, 2004, the claimant appearing in person and by counsel,
David R. Karr, Jr., and the State of West Virginia by counsel, Benjamin F.
Yancey, III, Assistant Attorney General.
On September 13, 2002, the 37-year-old claimant was the victim of criminally
injurious conduct in Dimbar, Kanawha County. The claimant was on his front
porch preparing to enter the front door when he was shoved from behind by an
unknown assailant who then fled.
As a result of the attack, the claimant suffered injuries to his right arm,
which had been forced through the glass window next to the door. His
unreimbursed medical expenses totaled over $14,000.00.
This Court’s initial denial of an award was based on the fact that the incident
was not timely reported to law enforcement officials. W.Va. Code §14-2A-14(b)
provides that an award of compensation may not be approved “if the criminally
injurious conduct upon which the claim is based was not reported to a
law-enforcement officer or agency within seventy-two hours after the occurrence
of the conduct, unless it is determined that good cause existed for the failure
to report the conduct within the seventy-two hour period.”
At the hearing, the claimant testified that immediately after the assault, he
contacted his neighbor, John Prowse, and asked him to drive him to the
hospital. Because of the excessive amount of bleeding, the claimant did not
want to wait for an ambulance. Upon arriving at the emergency room of Thomas
Memorial Hospital, the claimant explained that he had been pushed through a
glass door. Mr. Burford stated that he did not remember much of what happened
at the hospital nor much of what happened after he was taken home from the
hospital.
Also testifying at the hearing was the claimant’s wife, Gladys M. Burford, who
stated that she and her husband had been celebrating their marriage the evening
of the incident. She went out for a pack of cigarettes and returned home to
find the window broken and a lot of blood. She could not tell what had happened
and was afraid to go inside their home, so she ran to the nearest telephone and
called her husband’s mother. Mrs. Burford stated that it was his mother’s
boyfriend who told her that her husband was in the hospital. When she arrived
at the hospital, one of the doctors told her that her husband had been
unlocking the door when someone shoved him through the window and that his arm
went through the glass. The next morning her husband was released. Mrs. Burford
stated that because of a misunderstanding in how Mr. Burford’s medicine was to
be administered, he was “very drugged up” on medication and remained so until
the next time he went to see the doctor, which was two or three days later. The
doctor took him off all of the medication at that point and told her to give
him Tylenol. She testified that the receptionist at the doctor’s office gave
her the number for the Crime Victim Fund and that it was after contacting them
that she learned she needed a police report. It was only after contacting the
police that Mrs. Burford learned that no police report had been made. She
stated that she had seen a police officer at the hospital on the night of the
incident and had just assumed that someone had contacted the police. Mrs.
Burford was under the bel ief that her husband had been taken to the hospital
in an ambulance and that
306 TABLE OF
CASES REPORTED [W.Va.
someone had been in touch with the police prior to her arrival at the hospital.
Later she learned that it was in fact a neighbor that had rushed him to the
hospital. It was only upon contacting the police some four or five days after
the incident that she and her husband learned that there was no police report.
At that time they gave their statements so that a police report could be made
available for their crime victim claim.
In this claim, the Claim Investigator’s finding was that the claimant had not
reported to a law-enforcement officer or agency within seventy-two hours after
the occurrence of the conduct. The original Order upheld the Claim
Tnvestigator’s finding, disallowing the claim. Thus it became the claimant’s
burden to prove by a preponderance of the evidence that he did in fact have
good cause for the failure to report the conduct within the seventy-two hour
period.
Generally speaking, determining what constitutes “good cause” is in the sound
discretion of the trial court. Lewis
v. Henry, 184 W.Va. 323, 400; S.E.2d
567 (1990); State ex rel. Shorter v.
Hey, 170 W.Va. 249; 294 S.E.2d
51(1981). Exceptions, or perhaps clarifications, can be found when our
legislature makes specific provisions of what might constitute good cause in
certain situations, such as found in W.Va. Code §62- 3-1 or Rule 60(b)6 of the West
Virginia Rules of Civil Procedure.
The Court is also confronted with a situation where the Claim Investigator
believed that Mr. Burford was the victim of criminally injurious conduct,
however, the Investigator further found that Mr. Burford’s claim met the
criteria set forth in W.Va. Code § 14-2A-3(c),
but for the fact that the victim did not report the incident within 72 hours,
as required by W.Va. Code §14-2A-14(b). Claimant’s counsel, Mr. Karr, ably
points out, however, that this section of the Code also provides that the time
requirement may exceed the maximum time allowed where it is “determined that
good cause existed for the failure to report the conduct within the seventy-two
hour period.”
Under the facts of this particular case, evidence was presented, as previously
discussed, that Mr. Burford had to be driven to the hospital by his neighbor.
Due to Mr. Burford’s extensive bleeding, it was believed that there wasn’t time
to wait for an ambulance. Gladys Burford, newly married to her husband, arrived
at their home shortly after this, finding broken glass “and a lot of blood” on
the front porch of their mobile
5W.Va. Code §62-3-1 states, in pertinent part, that “... the accused, if in
custody, or if he appear in discharge of his recognizance, or voluntarily,
shall, unless good cause be shown for a continuance, be tried at the same
term.” See also Lewis v. Henry, 182 W.Va. 472; 388 S.E.2d 498 (1989).
6Rule 60(b) of the West Virginia Rules of Civil Procedure states, in
pertinent part: “On motion and upon such terms as are just, the court may
relieve a
party or a party’s legal representative from a final judgment, order, or
proceeding for the following reasons: (1) Mistake, inadvertence, surprise,
excusable neglect, or
unavoidable cause.” See also State ex
rel. Charleston Area Medical Center, Inc. v. Kaufman, 197 W.Va. 282; 475 S.E.2d 374 (1996).
W.Va.] TABLE OF
CASES REPORTED 307
home. One can easily imagine the state of mind of both Mr. and Mrs. Burford
after the incident that evening.
Additionally, the Court has Mrs. Burford’s testimony that she saw a police
officer in the emergency room area during the time her husband was being
treated. She presumed that the officer was there to investigate the incident.
After his discharge, there was a misunderstanding by Mrs. Burford concerning
the administration of her husband’s prescription medication, resulting in his
diminished mental capacity for several days until that was corrected, resulting
in a further delay in reporting.
In the light of the evidence put forth by the claimant, the Court is of the
opinion that the claimant has met his burden of proof. The evidence adduced at
the hearing of the matter establishes that the claimant had good cause for not
reporting the criminally injurious conduct within seventy-two hours of its
occurrence.
The Court is compelled by the evidence to reverse its previous ruling and find
that good cause did in fact exist for the failure to timely report the
incident. An award is therefore granted for the claimant’s unreimbursed medical
expenses in the sum of $14,815.94 as set forth in the Claim Investigator’s
memorandum of July 20, 2004. Should the claimant later submit evidence of any
additional unreimbursed allowable expenses relating to this incident, they will
be reviewed by the Court at that time.
OPINION ISSUED DECEMBER 13 2004
Jackie Lynn Creighton
(CV-03-285)
ORDER
Claimant appeared in person.
Robert D. Williams, Assistant Attorney General, for the State of West Virginia.
GRETT, JUDGE:
An application of the claimant. Jackie Lynn Creighton, for an award under the
West Virginia Crime Victims Compensation Act, was filed June 6, 2003. The
report of the Claim Investigator, filed November 13,2003, recommended that no
award be granted. An Order was issued on December 22, 2003, upholding the
Investigator’s recommendation and denying the claim, in response to which the
claimant’s request for hearing was filed January 9, 2004. This matter came on
for hearing September 16, 2004, the claimant appearing in person, and the State
of West Virginia by counsel, Robert D. Williams, Assistant Attorney General.
On May 4, 2003, Robert D. Creighton, the claimant’s 25-year-old husband, was
the victim of criminally injurious conduct inWheeling, Ohio County. The victim
was involved in an altercation when the offender, Timia .1 amar Johnson,
fatally shot the victim
308 TABLE OF
CASES REPORTED [W.Va.
in the neck. Timia Jamar Johnson has since pled guilty to voluntary
manslaughter for this offense and was sentenced to three to 15 years in jail.
As a result of the shooting in which Robert D. Creighton was killed, the
claimant incurred unreimbursed funeral expenses of $880.89.
This Court’s initial denial of an award was based on the Claim Investigator’s
finding that the claimant was not an innocent victim of crime. W.Va. Code § 14-2A-3(l) states: “
‘Contributory misconduct’ means any
conduct ofthe claimant ...
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.”
The claimant testified at the hearing of this matter that on the evening in
question, she had been at home when her husband, Robert Creighton, came home at
1:30
a.m. She stated that he had been at his brother’s house watching a boxing match
all evening. Mrs. Creighton testified that she did not smell any alcohol on her
husband. Mr. Creighton then left to take his son to his grandmother’s house. At
3:30 a.m., Mrs. Creighton received a telephone call informing her that her
husband had been shot. She proceeded to the scene, arriving about five minutes
later, only to find that her husband was already dead. Mrs. Creighton testified
that her husband had been sitting outside the bar waiting for a friend. She
stated that her husband had been barred from entering that bar, but that this was
in relation to a lawsuit that they had against the bar for a previous incident
in which her husband had fallen and broken his arm on the bar’s premises. While
he was waiting outside, a man came out and said more or less that he wanted to
hurt somebody. The man, Timia Jamar Johnson, approached her husband and he
defended himself. Mr. Creighton was then shot and killed.
Allecia M. Creighton, the victim’s mother, testified that on the date of the
incident, she was at her home in Cleveland. She received a telephone call at
3:30 a.m. from her mother telling her that her son had been shot. At 4:00 a.m.,
she received another telephone call informing her that her son had died. Ms.
Creighton testified that her son had been sitting outside a bar on his friend’s
car when the offender came outside and stated that he wanted to kill a couple
of people that day. Her son apparently thought that the man was talking to him,
and a fight ensued. Mr. Creighton was walking away from the fight when someone
called his name. He turned around and was shot in the neck. Ms. Creighton
testified that her son then ran toward his vehicle and tied his shirt around
his neck to try to stop the bleeding. Ms. Creighton stated that her son died
beside his vehicle.
Donna Saunders, Robert Creighton’s godmother, testified that he was not a
troublemaker. She stated that he would not start a fight, but that he would not
just let someone come up to him and punch him in the face. Ms. Saunders
testified that she is raising Mr. Creighton’s son, Deshawn Creighton.
The Claim Investigator’s original finding was that the claimant was guilty of
contributory misconduct within the meaning of the statute. The original
Orderupheld the Claim Investigator’s finding, disallowing the claim. Thus it
became the claimant’s
W.Va.J TABLE OF
CASES REPORTED 309
burden to prove by a preponderance of the evidence that her husband was not
guilty of contributory misconduct. The claimant testified that her husband had
not been drinking. Mrs. Creighton also testified that while her husband had
been barred from entering the bar, he had only been barred from there because
of a pending lawsuit. Allecia Creighton testified that her son had been walking
away from the altercation with the offender when the offender shot him. In the
light of the evidence put forth by the claimant, the Court is of the opinion
that the claimant has met her burden of proof. The evidence adduced at the
hearing of the matter establishes that the claimant had not been drinking and
was in no way guilty of contributory misconduct.
The Court is constrained by the evidence to reverse its previous ruling and
find that the claimant was not guilty of contributory misconduct. Following the
hearing, the Court received documentation ofunreimbursed allowable expenses
of$500.00 for funeral expenses. An additional $380.89 is due and owing to the
funeral home. Accordingly, an award in the total sum of $880.89 is hereby
granted as set out below. Should the claimant later submit evidence of any
additional unreimbursed allowable expenses relating to the criminal incident
giving rise to this claim, they will be reviewed by the Court at that time.
Kepner Funeral Homes
1308 Chapline St.
Wheeling, WV 26003
FEIN: 55-0568720 $380.89
Jackie Lynn Creighton
19300 Marvin Rd.
Warrensville Heights, OH 44128 $500.00
Total $880.89
OPINiON ISSUED JANUARY 7, 2005
Carlos R. Griffin
(CV-03-032)
ORDER
Claimant appeared in person.
Robert D. Williams, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Carlos R. Griffin, for an award under the West
Virginia Crime Victims Compensation Act, was filed January 21, 2003. The report
of the Claim Investigator, filed June 12, 2003, recommended that no award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on August 11, 2003, upholding the Investigator’s recommendation and
denying the claim, in response
310 TABLE OF
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to which the claimant’s request for hearing was filed September 2, 2003. This
matter came on for hearing September 16, 2004, the claimant appearing in
person, and the State of West Virginia by counsel, Robert D. Williams,
Assistant Attorney General.
On November 10, 2002, the 24-year-old claimant was the victim of criminally
injurious conduct in Hancock County. The claimant and David Hayes were shot by
the alleged offender, James Lancaster.
As a result of the attack, the claimant suffered a gunshot wound to the head.
His unreimbursed expenses totaled $87,236.47, including work loss.
This Court’s initial denial of an award was based on the Claim Investigator’s
finding that the claimant was not an innocent victim of crime. W.Va. Code § 14-2A-3(1) states: “ ‘Contributory
misconduct’ means any conduct ofthe claimant ... 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.”
The claimant testified at the hearing of this matter that on the date in
question, he had been asleep when David Hayes woke him up. Jimmy Lancaster had
just called and wanted Mr. Hayes to come down to get some tires for the vehicle
that Mr. Hayes had recently purchased from Mr. Lancaster. Mr. Hayes woke up the
claimant so that he could ride along with him to pick up the tires. The
claimant and Mr. Hayes met Mr. Lancaster at a gas station, where he told them
to follow along in the vehicle he was riding in for a little while. When they
came to a stop sign, Mr. Lancaster got out of the other vehicle and into the
vehicle with Mr. Griffin and Mr. Hayes. Mr. Lancaster then directed them to a
little road that led through a wooded area. It was at this point that Mr.
Lancaster got out of the car, stating that there had been a party there the
night before and he wanted to check and see if there was any broken glass on
the ground. Mr. Lancaster then got back into the vehicle and said that they
needed to go back to his brother’s house so that he could get a tool to help
get the tires off the vehicle they were on. They drove to the house and Mr.
Lancaster got out of the vehicle for a short time and then got back in. The
three men then drove back to the wooded area. Mr. Lancaster exited the vehicle
to open a gate and then got back in. Mr. Griffin stated that the next thing he
knew, Mr. Lancaster shot him in the head. Mr. Hayes wrestled with Mr. Lancaster
for the gun. Mr. Hayes was also shot. Mr. Lancaster got out of the vehicle and
screamed that his brother knew where they were and was coming to finish them
off. At this point, Mr. Griffin was able to put the vehicle in reverse and back
out of the driveway, but he then told Mr. Hayes that he needed to drive. They
drove for a while before pulling into a driveway where a man called the police
for them. Mr. Griffin and Mr. Hayes observed a vehicle speeding by on the
street, and afraid that it might be Mr. Lancaster, they drove off again until
they came to a church. Several people at the church helped them and they were lifeflighted
from the church to a hospital in Pittsburgh.
Mr. Griffin testified that he had not done anything to provoke Mr. Lancaster to
shoot him. He stated that while they were in the vehicle he was concentrating
on the
W.Va.J TABLE OF
CASES REPORTED 311
directions he was being given and not really saying much, as he was not
familiar with the area.
The Claim investigator’s original finding was that the claimant was guilty of
contributory misconduct within the meaning of the statute. The original Order
upheld the Claim Investigator’s finding, disallowing the claim. Thus it became
the claimant’s burden to prove by a preponderance ofthe evidence that he was
not guilty of contributory misconduct. The claimant testified that he thought
they were driving to meet Mr. Lancaster so that Mr. Hayes could pick up some
tires for the vehicle that he had recently purchased. Mr. Griffin testified
that at no point did he provoke Mr. Lancaster. In the light of the evidence put
forth by the claimant, the Court is of the opinion that the claimant has met
his burden of proof. The evidence adduced at the hearing of the matter
establishes that the claimant was in no way guilty of contributory misconduct.
The Court is constrained by the evidence to reverse its previous ruling and
find that the claimant was not guilty of contributory misconduct. Following the
hearing, the Court received documentation of unreimbursed allowable expenses of
$87,236.47 for medical bills and work loss. However, the claimant’s economic
loss exceeds the maximum of $25,000.00 as set forth by W.Va. Code
§14-2A-14(g)(1). Therefore. an award of $25,000.00 is hereby granted pursuant
to a memorandum of the Claim Investigator dated January 6, 2005.
OPINION ISSUED JANUARY11, 2005
Bonnie L. Jones
(CV-03-6 17)
ORDER
Claimant appeared in person and by counsel, Gloria M. Stephens, Attorney at
Law. Robert D. Williams, Assistant Attorney General, for the State of West
Virginia.
SAYRE, JUDGE:
An application of the claimant, Bonnie L. Jones, for an award under the West
Virginia Crime Victims Compensation Act, was filed December 9, 2003. The report
of the Claim Investigator, filed June 10, 2004, recommended that an award of
$125.00 be granted, to which the claimant filed a response in disagreement. An
Order was issued on August 6, 2004, upholding the Investigator’s
recommendation, in response to which the claimant’s request for hearing was
filed September 12, 2004. This matter came on for hearing November 9, 2004,
claimant appearing in person and by counsel, Gloria M. Stephens, and the State
of West Virginia by counsel, Robert D. Williams, Assistant Attorney General.
On April 24, 2003, the 32-year-old claimant was the victim of criminally
injurious conduct in Gary, McDowell County. The claimant was assaulted by the
offender, Curt Watts, who later was found guilty of assault and battery.
312 TABLE OF
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It is undisputed that the claimant was an innocent victim of crime. She was
treated for head and facial injuries, incurring unreimbursed medical expenses
of$ 125.00. Those expenses were paid by Order of this Court dated August 6,
2004. The claimant appealed on the basis of lost wages. At the hearing on
November 9, 2004, counsel for the claimant and for the Crime Victims Fund
agreed to a continuance of the matter pending receipt of an affidavit from the
claimant’s employer regarding her work loss and leave records. Said affidavit
was received on December 2, 2004, and made part of the record in this claim.
As a result of her injuries, the claimant missed 6.5 days of work. She had 4.5
days of sick leave available to her, leaving a balance of 2 days of work loss.
In a memo to this Court dated November 17, 2004, the Claim Investigator
recommended that the claimant be reimbursed $92.28 in net work loss for those
two days.
At issue is the question of whether “sick leave” is in fact a “collateral
source”
within the definition of the Crime Victims Compensation Act, defined in W. Va.
Code
§ 14-2A-3(b) to include “wage continuation programs of
any employer.” The claimant
herein did not lose wages for 4.5 of the 6.5 days she was absent because her
sick leave
was available in that amount. Therefore, it is the finding of this Court that
sick leave is
a collateral source and so not compensable within the meaning of the statute.
Based on the foregoing, an award in the sum of $92.28 is hereby granted as set
out below. Should the claimant later submit documentation of any additional
unreimbursed allowable expenses relating to this incident, they will be reviewed
by the Court at that time.
Bonnie L. Jones
P.O. Box 295
Gary WV 24836 $92.28
OPINION ISSUED JANUARY11, 2005
Loretta M. Bowles
(CV-03-307)
ORDER
Claimant appeared in person and by counsel, Jason D. Parmer, Attorney at Law.
Robert D. Williams, Assistant Attorney General, for the State of West Virginia.
SAYRE, JUDGE:
An application of the claimant, Loretta M. Bowles, for an award under the West
Virginia Crime Victims Compensation Act, was filed June 19, 2003. The report of
the Claim Investigator, filed December 12, 2003. recommended that no award be
granted, to
W.Va.] TABLE OF
CASES REPORTED 313
which the claimant filed a response in disagreement. An Order was issued on
January 22, 2004, upholding the Investigator’s recommendation and denying the
claim, in response to which the claimant’s request for hearing was filed
February 10, 2004. This matter came on for hearing November 9, 2004, claimant
appearing in person and by counsel, Jason D. Parmer, and the State of West
Virginia by counsel, Robert D. Williams, Assistant Attorney General.
On December 31, 2002, the 44-year-old claimant was assaulted by her nephew at
her mother’s residence in Sandstone, Summers County.
The claimant testified at the hearing of this matter that several days before
the afternoon in question, she and her nephew, Russell Bowles, had words
concerning Mr. Bowles’ dogs. The claimant had gone to their shared mailbox to
retrieve the mail, and Russell commented that he was going to turn his dogs
loose because they were getting slcinny. When the claimant advised him that
keeping the dogs penned up would make them fat instead, Russell cursed at her
before going back into his house.
Later that day, according to the claimant, Russell drove his father Monty to
Hinton to get his car. Monty (who is the claimant’s brother) had supper that
evening with the claimant and their mother, Mary M. Bowles. The claimant
revealed to her brother that she and Russell had had an incident that day.
Monty stated that he “heard all about it.” It did not appear to the claimant
that Russell had told his father the truth about what happened.
A few days later, the claimant’s brother and nephew were outside in the yard.
Since they were there together, the claimant approached and asked Russell to
tell his father the truth about what was said. Suddenly, Russell became
enraged. He threw down his cigarette, cursed, and ran towards her. When she
pushed him away, he grabbed her and threw her against a fence. Russell’s wife
Brenda, his father Monty, and the claimant’s mother Mary intervened. When the
claimant got up, she went into the house and called the sheriff. Forty-five
minutes later, a State trooper arrived and took statements from Russell and
Monty. The trooper asked the claimant and her mother only for their names and
addresses. Apparently, Russell had called the State Police.
The claimant testified that she went to the hospital for treatment of her
injuries, and that a few days later she went to see Summers County Sheriff
Wheeler. He advised her to get a “DVP” to keep Russell away from her, and she
did so. Sheriff Wheeler also served the warrant upon the claimant which had
been issued by the State Police on behalf of Russell. The claimant revealed
that she did not press charges against Russell because she didn’t want him
going to prison, and because her mother did not want her to. At the hearing of
the charges against the claimant, the matter was dismissed without prejudice.
Also present at the hearing of this claim was the claimant’s mother, Mary M.
Bowles, who corroborated her daughter’s testimony.
The initial denial ofthis matter was based on the claimant’s alleged
contributory misconduct in that she initiated the incident by shoving the
offender. However, from the evidence adduced at the hearing, it is the decision
of this Court that its previous ruling be overturned. The claimant’s actions
were clearly in self-defense, and did not amount to contributorymisconduct. An
award of$904.50 is therefore granted pursuant to the Claim Investigator’s
calculations as set forth in his memorandum dated November 24, 2004.
314 TABLE OF
CASES REPORTED [W.Va.
Should the claimant later submit any additional unreimbursed allowable expenses
relating to this incident, they will be reviewed by the Court at that time.
OPINION ISSUED JANUARY27, 2005
James Allen Runyan
(CV-03-3 10)
ORDER
Claimant appeared in person.
Robert D. Williams, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, James Allen Runyan, for an award under the West
Virginia Crime Victims Compensation Act, was filed June 23, 2003. The report of
the Claim Investigator, filed November 3, 2003, recommended that no award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on December 23,2003, upholding the investigator’s recommendation and
denying the claim, in response to which the claimant’s request for hearing was
filed January 5, 2004. This matter came on for hearing September 16,
2004, the claimant appearing in person, and the State of West Virginia by
counsel, Robert D. Williams, Assistant Attorney General.
On February 2, 2003, the 43-year-old claimant was the victim of criminally
injurious conduct in Marshall County. The claimant was at a bar when he was
assaulted by the alleged offender, Roger Garrison.
As a result of the attack, the claimant suffered a head injury. His
unreimbursed expenses totaled nearly $50,000.00.
This Court’s initial denial of an award was based on the Claim Investigator’s
finding that the claimant was not an innocent victim of crime. W.Va. Code § 14-2A-3(l) states: “‘Contributory misconduct’ means any
conduct of the claimant ...
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.”
The claimant testified at the hearing of this matter that on the evening in
question, he had been taking care of his horse when he decided to drive to the
gas station and fill his wife’s vehicle with gas and pick up a pack of
cigarettes. Mr. Runyan then stopped at a bar, Nick’s Lounge, which he had
frequented on many occasions. He stated that he probably got to the bar around
9:30 p.m. or a little earlier. He was sitting in the bar and had just finished
his first beer when a group of three men entered. Mr. Runyan ordered another
beer and the three men asked him if he wanted to play a game of pool.
W.Va.] TABLE OF
CASES REPORTED 315
He joined them and after the game they went back downstairs to the bar. One of
the men, alleged offender Roger Garrison, began cursing and threatening the
barmaid. Mr. Runyan stated that he asked the man to leave the barmaid alone
about three or four times. Mr. Runyan testified that Mr. Garrison then shoved
him. He grabbed Mr. Garrison’s shirt, at which point Mr. Garrison struck the
victim over the head with a beer mug. Mr. Runyan fell to the floor where the
two other men who had come into the bar with Mr. Garrison began kicking him in
the head and back. Mr. Runyan then heard the barmaid tell the men to leave and
heard them say that they were going to take him outside to “finish me off.” On
several occasions, the claimant pleaded with the barmaid to call the
paramedics, but she refused. Mr. Runyan then crawled to a telephone but was
told to use the pay-telephone. He then crawled to the pay-telephone and dialed
911. Mr. Runyan stated that he then must have passed out, because the next
thing he knew the paramedics were there and waking him up. Mr. Runyan stated
that he could not see for a day because of his injuries.
According to the police report, the claimant had been talking with the alleged
offender and the other men who had accompanied him. Witness statements
indicated that the claimant was bothering the individuals and was asked to
move. In a statement taken by police at the scene, Bucky Thompson revealed that
the claimant had started the fight by grabbing the alleged offender around the
neck and shoving him. Witness statements also indicated that Mr. Runyan was
intoxicated, having had six beers and one shot of liquor.
Mr. Runyan testified that at no point was he asked to move or asked to leave
the bar. The claimant further testified that at no point did he grab Mr.
Garrison or shove him. He also stated that during the time he was at the bar,
he had about three beers over the course of a half hour or forty-five minutes,
but nothing else to drink. He stated that he had only been asking the man to
leave the bar- maid alone and had not started the altercation.
Delores Runyan, the claimant’s wife, testified that on the date ofthe incident
her husband had been taking care of their horse when he decided to drive and
fill up the gas tank of her vehicle. He told her that he would be back shortly.
She stated that she did not know what had happened to him until the sheriff’s
office called to tell her that he was at the hospital. Mrs. Runyan testified
that her husband is only a social drinker and that he cannot drink much because
of the medications he was taking for a previous injury.
The Claim Investigator’s original finding was that the claimant was guilty of
contributory misconduct within the meaning ofthe statute. The original Order
upheld the Claim Investigator’s finding, disallowing the claim. Thus it became
the claimant’s burden to prove by a preponderance ofthe evidence that he was
not guilty of contributory misconduct. It is the Court’s opinion that the
claimant did not meet this burden. First, his blood alcohol level several hours
after the altercation was .15%. The claimant stated on several occasions that
he had only three beers while he was at the bar, but his blood alcohol content
several hours after he stopped drinking indicates otherwise. Secondly, the
claimant presented no eyewitness testimony to rebut the police report nor to
rebut eyewitness accounts indicating that he had started the fight.
The Court is constrained by the evidence to stand by its previous ruling;
therefore, this claim must be, and is hereby, denied.
316 TABLE OF
CASES REPORTED [W.Va.
OPINION ISSUED JANUARY27, 2005
David R. Hayes
(CV-03-34)
ORDER
Claimant appeared in person.
Robert D. Williams, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, David R. Hayes, for an award under the West
Virginia Crime Victims Compensation Act, was filed January 21, 2003. The report
of the Claim Investigator, filed June 12, 2003, recommended that no award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on August 7, 2003, upholding the Investigator’s recommendation and
denying the claim, in response to which the claimant’s request for hearing was
filed September 4, 2003. This matter came on for hearing September 16, 2004, the
claimant appearing in person, and the State of West Virginia by counsel, Robert
D. Williams, Assistant Attorney General.
On November 10, 2002, the 43-yearold claimant was the victim of criminally
injurious conduct in Hancock County. The claimant and Carlos Griffin were shot
by the alleged offender, James Lancaster.
As a result of the attack, the claimant suffered a gunshot wound to the back
and a broken collarbone. His unreimbursed expenses totaled $39,321.71,
including work loss.
This Court’s initial denial of an award was based on the Claim Investigator’s
finding that the claimant was not an innocent victim of crime. W.Va. Code § I 4-2A-3(l) states: “‘Contributory misconduct’ means
any conduct of the claimant ... that is
unlawftil 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.”
The claimant testified at the hearing of this matter that on the date in question,
he had been contacted by Jimmy Lancaster who wanted him to come down to get
some tires for the vehicle that he had recently purchased from Mr. Lancaster.
The claimant asked Carlos Griffin to ride along with him to pick up the tires.
The claimant and Mr. Griffin met Mr. Lancaster at a gas station, where he told
them to follow along in the vehicle he was riding in for a little while. When
they came to a stop sign, Mr. Lancaster got out of the other vehicle and into
the vehicle with Mr. Griffin and Mr. Hayes. Mr. Lancaster then directed them to
a little road that led through a wooded area. It was at this point that Mr.
Lancaster got out of the car, stating that there had been a party there the
W.Va.] TABLE OF
CASES REPORTED 317
night before and he wanted to check and see if there was any broken glass on
the ground. Mr. Lancaster then got back into the vehicle and said that they
needed to go back to his brother’s house so that he could get a tool to help
get the tires off the vehicle they were on. They drove to the house and Mr.
Lancaster got out of the vehicle for a short time and then got back in. The
three men then drove back to the wooded area. Mr. Lancaster exited the vehicle
to open a gate and then got back in. Mr. Hayes stated that the next thing he
knew, Mr. Lancaster shot Mr. Griffin. The claimant then grabbed the gun and
wrestled with Mr. Lancaster for the gun. During the struggle, the claimant was
also shot. The claimant testified that he threw Mr. Lancaster out of the
vehicle, who then screamed that his brother knew where they were and was coming
to finish them off. At this point, Mr. Griffin was able to put the vehicle in
reverse and back out of the driveway, but he then told the claimant that he
needed to drive. They drove for a while before pulling into a driveway where a
man called the police for them. Mr. Griffin and Mr. Hayes observed a vehicle
speeding by on the street, and afraid that it might be Mr. Lancaster, they
drove off again until they came to a church. Several people at the church
helped them and they were life-flighted from the church to a hospital in
Pittsburgh.
Mr. Hayes testified that he had not done anything to provoke Mr. Lancaster to
shoot him. He stated that the only thing that he could think of as to why Mr.
Lancaster shot either him or Mr. Griffin was because they had recently received
their paychecks.
The Claim Investigator’s original finding was that the claimant was guilty of
contributory misconduct within the meaning ofthe statute. The original Order
upheld the Claim Investigator’s finding, disallowing the claim. Thus it became
the claimant’s burden to prove by a preponderance ofthe evidence that he was
not guilty of contributory misconduct. The claimant testified that they were
driving to meet Mr. Lancaster so that he could pick up some tires for the
vehicle that he had recently purchased. Mr. Hayes testified that at no point
did he provoke Mr. Lancaster. In the light of the evidence put forth by the
claimant, the Court is of the opinion that the claimant has met his burden of
proof. The evidence adduced at the hearing of the matter establishes that the
claimant was not guilty of contributory misconduct.
The Court is constrained by the evidence to reverse its previous ruling and
find that the claimant was not guilty of contributory misconduct. Following the
hearing, the Court received documentation of unreimbursed allowable expenses of
$39,321.71 in medical expenses and work loss. However, the claimant’s economic
loss exceeds the maximum of $25,000.00 set forth by W.Va. Code § 1 4-2A- I 4(g)(l). Therefore, an award of $25,000.00 is hereby granted
pursuant to a memorandum of the Claim Investigator dated January 21, 2005.
OPiNION ISSUED JANUARY27, 2005
Cara Olako-Burt
(CV-02-88)
318 TABLE OF
CASES REPORTED [W.Va.
ORDER
Sherrilyn Farkas VanTassel, Attorney at Law, for the Claimant.
Robert D. Williams, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Cara Olako-Burt, for an award under the West
Virginia Crime Victims Compensation Act, was filed March 7, 2002. The report of
the Claim Investigator, filed August 13, 2002, recommended that no award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on September 18, 2002, upholding the Investigator’s recommendation and
denying the claim, in response to which the claimant’s request for hearing was
filed October 10, 2002. This matter came on for hearing September 16, 2004, the
claimant appearing in person and by counsel, Sherrilyn Farkas VanTassel, and
the State of West Virginia by counsel, Robert D. Williams, Assistant Attorney
General.
On November 24, 2001, the 23-year-old claimant was the victim of criminally
injurious conduct in Wheeling, Ohio County. The claimant was standing outside a
bar when the alleged offender, Veronica Pitts approached, grabbed her hair, and
began punching her in the face.
As a result of the attack, the claimant suffered traumatic ear avulsion and
multiple contusions and abrasions. Her unreimbursed expenses totaled $7,647.32.
This Court’s initial denial of an award was based on the Claim Investigator’s
finding that the claimant was not an innocent victim of crime. W.Va. Code § 14-2A-3(l) states: “‘Contributory misconduct’ means any conduct of the
claimant ...
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.”
The claimant testified at the hearing of this matter that on the evening in
question, she had left work around midnight. She drove to the Coconut Bar,
where she saw a couple of friends’ cars so she decided to stop and see them.
Ms. Olako-Burt testified that she went in the bar to see her friends, have a
couple of drinks, and then catch a ride home. She arrived at the bar sometime
between 12:30 a.m. and 1:00 a.m. When she got to the bar she did not find her
friends, but instead met John Jackson, a cousin of her husband. The two sat and
talked about her marriage until between 2:30 a.m. and 2:40 a.m. During their
talk, Ms. Olako-Burt testified that she had probably two beers and one shot of
liquor. Sometime after 2:30 a.m., Mr. Jackson walked outside the bar to finish
his beer. Ms. Olako-Burt followed him to finish their conversation. While
outside, Mr. Jackson became engaged in an argument with a blonde female whom
the claimant did not know. The woman then started screaming at Ms. Olako-Burt.
The claimant stated that she said, “Look, I don’t even know you. I don’t know
what your problem is. I have nothing to do with this.” She started to walk away
when another woman, Veronica Pitts, walked up to the claimant and said, “If you
have a problem with her then you have a
W.Va.] TABLE OF
CASES REPORTED 319
problem with me.” Ms. Puffs then grabbed the claimant by her ponytail and
started hitting her. Ms. Olako-Burt fell to the ground and Ms.Pitts kept
hitting her. The police arrived shortly thereafter and had to pull Ms. Pitts
off of the claimant. The claimant had blood down the front of her. An ambulance
arrived to take Ms. Olako-Burt to the hospital. It was at this point that she
was made aware of the fact that part of her ear had been bitten off, as someone
came over to the ambulance stating that they had found it (the part of her ear
that had been bitten off). She was taken to the emergency room where she had
surgery on her ear.
In the police report there was an eyewitness who claimed that Ms. Olako-Burt
was the aggressor. The witness stated that Ms. Pitts was getting into a car
when the claimant grabbed her and struck her in the head. The claimant
testified that the first time she saw Ms. Pitts was when she was approached by
the alleged offender. Ms. Olako-Burt further testified that she did not have a
chance to get away from Ms. Pitts before the fight ensued. She tried to get
away from the fight but was grabbed by the hair.
The Claim Investigator’s original finding was that the claimant was guilty of
contributory misconduct within the meaning of the statute. The original Order
upheld the Claim Investigator’s finding, disallowing the claim. Thus it became
the claimant’s burden to prove by a preponderance of the evidence that she was
not guilty of contributory misconduct. The claimant testified that she had been
drinking while at the bar, but that she only had two beers and one shot of
liquor. Ms. Olako-Burt further testified that she did not know either the first
woman who started yelling at her or the alleged offender, Ms. Pitts, who
approached and attacked her. She testified that she was approached by Ms.
Pitts. who then grabbed her by the hair and struck her in the face. In the
light of the evidence put forth by the claimant, the Court is of the opinion
that the claimant has met her burden of proof. The evidence adduced at the
hearing of the matter establishes that while the claimant had been drinking,
she was not guilty of contributory misconduct.
The Court is constrained by the evidence to reverse its previous ruling and
find that the claimant was not guilty of contributory misconduct. The Court
hereby grants an award in the amount of $6,195.93 for the claimant’s
unreimbursed allowable expenses as set forth in the Claim Investigator’s
memorandum of January 21, 2005. Should the claimant later submit documentation
of additional unreimbursed allowable expenses relating to this incident, they
will be reviewed by the Court at that time.
OPINION iSSUED JUNE 14, 2005
Vicki R. Laughlin
(CV-03-478)
ORDER
Claimant appeared in person and by counsel, Michael T. Clifford.
Benjamin F. Yancey, 111, Assistant Attorney General, for the State of West
Virginia.
320 TABLE OF
CASES REPORTED [W.Va.
GRITT, JUDGE:
An application of the claimant, Vicki R. Laughlin, for an award under the West
Virginia Crime Victims Compensation Act, was filed September 15, 2003.
The report of the Claim investigator, filed April 13, 2004, recommended that no
award be granted, to which the claimant filed a response in disagreement. An
Order was issued on June 23, 2004, upholding the Investigator’s recommendation
and denying the claim, in response to which the claimant’s request for hearing
was filed October 29, 2004. This matter came on for hearing February 16, 2005,
the claimant appearing in person and by counsel, Michael T. Clift’ord, and the
State of West Virginia by counsel, Benjamin F. Yancey, III, Assistant Attomey
General.
On January 19, 2002, Raymond Jason Gill, the 20-year-old son of the claimant,
was the victim of criminally injurious conduct in Kanawha County. Mr. Gill had
met with offenders John Frye and Bradley Hacker, who shot Mr. Gill in the head,
fatally wounding him. Mr. Frye pleaded guilty to first- degree murder. A jury
found Mr. Hacker guilty of first-degree murder in the commission of
first-degree robbery and possession with intent to deliver a controlled
substance.
The claimant testified at the hearing of this matter that on the evening in
question, her son had left their home sometime between 7:00 p.m. and 7:30 p.m.
She stated that her daughter saw Mr. Gill get into a car with the offenders at
around that time. Ms. Laughlin stated that her son was shot in the back of the
head by the offenders who then buried him in a shallow grave and attempted to
cremate him. She stated that the offenders had robbed Mr. Gill of$8,000.00. The
claimant testified that she knew that her son occasionally smoked marijuana.
She also stated that she had found a large sum of money in her son’s room
several weeks prior to the incident. Ms. Laughlin told police that she
suspected her son of selling marijuana because of the large amount ofmoney that
she found, but that she had no proof of it. She also testified that a friend of
her son’s had later told her that Mr. Gill had gone to Virginia the night of
his murder to buy marijuana.
W. Va. Code §
14-2A3(l) defines “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.”
The Claim Investigator’s original finding was that the claimant was guilty of
contributory misconduct within the meaning of the statute. The original Order
upheld the Claim, Investigator’s finding, disallowing the claim. Thus it became
the claimant’s burden to prove by a preponderance of the evidence that her son
was not guilty of contributory misconduct. The Court is of the opinion that she
did not meet this burden. There was no evidence produced at hearing that the
victim was not smoking marijuana or that he was not involved in a drug
transaction. Since there was no evidence presented that the victim was not
guilty of contributory misconduct, the Court must deny this claim.
W.Va.] TABLE OF
CASES REPORTED 321
The Court is constrained by the evidence to staiid by its previous ruling;
therefore, this claim must be, and is hereby, denied.
322 TABLE OF
CASES REPORTED [W.Va.
REFERENCES
Crime Victims Compensation Fund
— CONTRIBUTORY MISCONDUCT
— CRIMiNAL CONDUCT
— ECONOMIC LOSS
— FAILURE TO REPORT CRIME
— II’4NOCENT VICTIM
— MENTAL HEALTH EXPENSES
— WORK LOSS
The following is a compilation of head notes representing decisions
from July 1, 2003 to June 30, 2005, for claims appealed.
CONTRIBUTORY MISCONDUCT
Shianna Frey (CV-O1-319)
The claimant’s daughter was brutally murdered. The Court initially denied
the claim for the victim’s contributory misconduct in using illegal drugs.
There was a lack of evidence that the victim did use drugs prior to her death,
so the Court granted an award
of $4,000.00 p. 273
Kathryn Evans (CV-02-233)
The claimant is the mother and legal guardian of the alleged victim, a
minor. The victim was punched numerous times in the face by the alleged
offender, also a minor. As a result of the attack, the victim suffered facial
lacerations and a broken jaw. The claim was initially denied on the basis that
the alleged victim was guilty of contributory misconduct The Court concluded
that if the victim had not made the initial assault upon the alleged offender,
neither the first nor the second attack would have occurred. Thus, the Court
denied this claim based upon its previous ruling of the victim’s contributory
misconduct p. 275
Annette M. (Jones) Dale (CV-96-O1 6)
The claimant’s husband was murdered and the offender was charged with
first- degree murder. The case did not proceed because the offender committed
suicide. The claim was denied because it was determined from the police report
that the victim failed to retreat and take precautionary measures for his own
safety. The Court ruled that the consumption of alcohol and the use of a
controlled substance constituted contributory
misconduct, and denied the claim p. 288
James Allen Runyan (CV-O331 0)
The claimant was at a bar when he was assaulted by an alleged
offender. This claim was initially denied because of “contributory
misconduct”. The Court upheld the
W.Va.] TABLE OF
CASES REPORTED 323
original ruling because of eyewitness accounts indicating that the claimant was
intoxicated and started the fight p. 314
Vicki R. Laughlin (CV-03-478)
The claimant’s 20-year old son was fatally shot by an offender who pleaded
guilty to first-degree murder. A jury also found a second offender guilty of
first-degree murder, robbery and possession with intent to deliver a conttolled
substance. This claim was denied because of “contributory misconduct.” The
Court upheld this ruling because the claimant admitted to finding large sums of
money in the victim’s room and had knowledge that he used marijuana. The
claimant failed to meet the burden of proof;
therefore, the claim was denied p. 319
CRIMINAL CONDUCT
Robert Lee Moore (CV-02-406)
This claim was initially denied on the basis that the claimant was not a
“victim of criminally injurious conduct.” The claimant alleges that he was
beaten in the head by an assailant, but the police report indicated that he was
injured when he opened the door of a moving vehicle, fell out, and struck his
head. Because the facts of the claim were
uncertain, no award was granted p. 271
Anthony Zurzolo, Jr. (CV—OO-247)
The claimant alleged that he was assaulted, causing him to fall from a
ladder while painting. The Court initially denied the claim because the
claimant failed to produce any evidence at the hearing that there was any
conduct or attempted conduct that, by its nature, posed a substantial threat of
personal injury or death. The evidence established that the claimant simply
fell from a stepladder while arguing with the alleged offender. The Court
denied the claim based upon its previous ruling p. 280
Clarence Childers (CV-03-74)
The claimant was a victim of criminally injurious conduct when he was
stabbed at a residence where he and the offender had been drinking most of the
day. The Court denied the claim because the claimant’s own actions amounted to
“contributory misconduct.” The claimant admitted to consuming nearly a case of
beer on the day of the assault and his medical records indicated that his blood
alcohol level was .22. The Court denied the claim based upon its previous
ruling p. 283
ECONOMIC LOSS
Kim E. Woody (CV-02-413)
The claimant’s 17-year-old daughter was tragically killed in a motor
vehicle accident in which she had been the passenger of an intoxicated
driver who was speeding, lost control, and struck a tractor trailer. The
Court’s initial denial was based on the fact that she knew or should have known
that the driver was intoxicated. The claimant
324 TABLE OF
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testified that thirty minutes before the fatal accident, the police came into
contact with the victim and the driver and allowed them to move their vehicle
on the street. It was the claimant’s contention that the officers should have
taken firmer action during their first encounter with the driver, and if they
had done so, her daughter would not have perished in the second incident. The
claimant also argued that if the officers allowed an impaired driver to remain
on the road, how was her minor daughter to know the driver was too intoxicated
to drive? The Court concluded that the claimant was entitled to the full award,
however, her total collateral sources greatly exceeded her actual out-of-pocket
expenses. Accordingly, the Court did not make an award p. 300
Catherine D. Tate (CV-OO-434)
The claimant was injured while performing her duties as a licensed
practical nurse. She was attacked by a male resident at her place of
employment. The claimant was denied any award because of the existence of a
collateral source to offset her allowable expenses. The Court required the
claimant to submit proof of any additional unreimbursed allowable expenses
relating to the incident, to be reviewed at a later date. p.302
FAILURE TO REPORT CRIME
Ray Gene Gray (CV-02-528)
The claimant alleged that he was struck by a forty-ounce glass beer bottle
and struck approximately four times in the left leg with a baseball bat by
someone who was his friend prior to the attack. The police report stated that
the claimant failed to report the crime within seventy-two hours after the
crime occurred. The claimant failed to show “good cause” for not reporting the
conduct, therefore, the Court denied the
claim p. 278
Gerald Allen Burford, Jr. (CV-02-534)
The claimant was shoved from behind by an unknown assailant who then fled.
As a result of the attack, the claimant suffered injuries to his arm, which had
been forced through a glass window. This claim was initially denied because the
claimant failed to file a police report within seventy-two hours of the
occurrence. At the hearing it was determined that “good cause” existed for the
failure to report the conduct. The Court awarded the claimant $14,815.94 for
his medical expenses p. 304
INNOCENT VICTIM
Rick R. Keener (CV-02-508)
The claimant was struck in the back of the head with a cue stick in a
bar. His injuries resulted in work loss. The claim was initially
denied because the police report was unclear about the incident, and because
the claimant’s intoxication may have been a contributing factor. Prior to the
hearing, the parties agreed that testimony of the
W.Va.J TABLE OF
CASES REPORTED 325
investigating officer would be taken, and the claim submitted. The officer
testified that the claimant did nothing to provoke the offender or cause
himself to become a victim.
The Court granted an award of $4,128.00 p. 285
Yvonne Corbett (CV-98-031)
The claimant’s minor daughter was murdered. The claim was initially denied
because the victim was with a person that was known for drugs in the community.
Based on the record presented in this claim, the Court found no evidence of
contributory misconduct on the part of the victim. The claimant was awarded
$4,000.00, the maximum allowable award for funeral and burial expenses p. 287
Lana Graley (CV-O1-083)
The claimant’s 19-year-old son was fatally stabbed by an offender who is
currently serving a prison sentence for manslaughter. This claim was initially
denied on the basis that the victim was guilty of contributory misconduct
because he was attending a party that involved underage drinking. The medical
examiner’s report stated that the victim’s blood alcohol content was 0.09% and
it was determined that he had not been using marijuana on the night of the incident.
The police officer attending the incident testified that in his opinion, there
was no evidence to suggest that alcohol played a role in the victim’s behavior.
The Court concluded that the victim was not the aggressor and awarded the
maximum award of $4,000.00 for funeral expenses p. 293
Patricia Moore (CV-O 1-269)
The claimant’s 23-year-old son was fatally stabbed and the offender was
convicted of first-degree manslaughter. The claim was initially denied, but
after testimony from the investigating officer that the offender seemed to have
thrown the first punch for unknown reasons, the Court found the victim to be
innocent, and granted the maximum, award for funeral and burial expenses of
$4.000.00 p. 298
Linda L. Feathers (CV-03-437)
The claimant was attacked while checking on the well-being of a
motorcyclist whom she had just struck with her vehicle. This claim was
initially denied because the facts of the incident were unclear. At the hearing
it was discovered that the offender (the cyclist’s father) threw the claimant
to the ground and struck her several times. The claimant was unable to
retaliate, and did not provoke the offender. The Court awarded
the claimant $3,466.00 for medical expenses p. 303
Jackie Lynn Creighton (CV-03-285)
The claimant’s 25-year-old husband was fatally shot outside a bar while
waiting for a friend. This claim was initially denied because of”contributory
misconduct”, It was thought that the victim may have been intoxicated or
participated in the use of a controlled substance when the incident occurred.
After testimony, it was discovered that the victim had not entered the bar and
was approached by the offender in a threatening manner. The Court awarded
$880.89 for funeral expenses p. 307
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CASES REPORTED [W.Va.
Carlos R. Griffin (CV-03-032)
The claimant and a friend were shot by an alleged offender. This claim was
initially denied because of “contributory misconduct”. The incident occurred
when the claimant and his friend went with the offender to an undisclosed area
to purchase tires. Instead, the offender directed them to a wooded area where
he shot them. The Court awarded the claimant the maximum sum in personal injury
claims of $25,000.00.
p.309
Loretta M. Bowles (CV-03-307)
The claimant was assaulted by her nephew at her mother’s residence. The claim
was initially denied because it was believed that the claimant may have
provoked the incident. It was discovered that the claimant merely asked the
offender to tell a truth to his father, which enraged the offender. The
claimant’s actions were clearly in self- defense, and the Court awarded the
claimant $904.50 p. 312
David
R. Hayes (CV-03-034)
The claimant and a friend were shot by an alleged offender. This claim was
initially denied because of “contributory misconduct”. The incident occurred
when the claimant and his friend went with the offender to an undisclosed area
to purchase tires. Instead, the offender directed them to a wooded area where
he shot them. The Court awarded the claimant the full amount allowed by the
State Code of $25,000.00 p. 316
Cara Olako-Burt (CV-02-088)
The claimant was assaulted by an alleged offender while standing outside a bar.
The claim was initially denied because of “contributory misconduct.” As a
result of the attack, the claimant suffered traumatic ear avulsion and multiple
contusions and abrasions. The Court was constrained by evidence at the hearing
to reverse its previous ruling and find that the claimant was not guilty of
contributory misconduct, and an award
of $6,195.93 was granted p.317
MENTAL HEALTH EXPENSES
Denise Burnside (CV-02-305)
The claimant suffered emotional stress and incurred medical expenses as a
result of her sawmill being destroyed by arson. The claimant’s physician was
asked by the Court to divide her medical expenses from pre-existing conditions
and submit a total for payment of the claim. The claimant was awarded her
unreimbursed allowable expenses
in the amount of $1,906.63 p.286
WORK LOSS
Bonnie L. Jones (CV-03-617)
The claimant was attached by an offender who was found guilty of assault and
battery. It was recommended that an award of$ 125.00 be granted, to which the
claimant
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filed a response in disagreement. As a result of the claimant’s injuries, she
missed 6.5
days of work and “sick leave” is in
fact a “collateral source” within the State Code definition. The Court awarded
the claimant $92.28 for her work loss reimbursement. p.311