West Virginia Legislative Claims Commission

Volume Number: 29
Category(s): BERMS
Opinion Issued September 15, 2011
     Claimant appeared pro se.
     Michael J. Folio, Attorney at Law, for Respondent.
      Claimant brought this action for vehicle damage which occurred when her 2007 Mitsubishi Galant struck a hole in the berm on WV Route 25 near Dunbar, Kanawha County. WV Route 25 is a public road maintained by Respondent. 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 at approximately 8:00 p.m. on October 5, 2010. The evening was dark but clear. WV Route 25 is a two-lane, paved road with slightly faded white lane lines. The incident giving rise to this claim occurred in front of the Cold Spot where the road curves right to left, over the railroad tracks, and then right again. Claimant testified that she was driving approximately 25-30 miles per hour through the curves when her vehicle struck a hole located to the right of the white lane line on the berm. Claimant frequently travels this road and was aware of the hole prior to this incident, but she stated she could not see it in the dark. Claimant further testified that there was no traffic in the opposite direction. As a result of this incident, Claimant alleges that her vehicle sustained damage to the right front and rear wheels and tires, as well as the right and left sides of her front fender. Claimant testified that she paid a friend $500.00, the amount of her insurance deductible, to fix her vehicle.
      It is the Claimant’s position that Respondent knew or should have known about the hole in the berm on WV Route 25 which created a hazardous condition to the traveling public and that Respondent was negligent in failing to properly maintain WV Route 25 prior to the incident.
      The position of the Respondent is that it did not have actual or constructive notice of the condition on WV Route 25 at the time of the incident; and that regardless of notice, Respondent is not liable for damage caused by Claimant’s driving on the berm. Gil Schoolcraft, a foreman for Respondent, testified that he is familiar with the location of Claimant’s incident and that the speed limit for the vicinity of the railroad crossing is 25 miles per hour. Schoolcraft also testified that the white lane lines were present in October of 2010.
      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 prove that Respondent had actual or constructive notice of the defect and a reasonable amount of time to take corrective action. Pritt v. Dep’t of Highways, 16 Ct. Cl. 8 (1985); Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986). The Court has previously held Respondent liable where the driver of the vehicle was forced to use the berm in an emergency situation, and the berm was in disrepair. See Handley v. Div. of Highways, CC-08-0069 ( 2008); Warfield v. Div. of Highways, CC-08-0105 ( 2008).
      In the instant case, Claimant chose to drive onto the berm and the Court cannot hold Respondent liable for failure to maintain the berm when the berm was not used in an emergency situation. Thus, there is insufficient evidence of negligence upon which to base an award.
      In view of the foregoing, the Court is of the opinion to and does deny this claim.
      Claim disallowed.

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