West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued January 10, 2012
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant brought this action for vehicle damage which occurred when his 2004 Ford Explorer struck a missing portion of a curb located along W. Va. Route 507, also designated as Cove Road, near Weirton. The incident occurred between the Brook and Hancock County line markers. W. Va. Route 507 is a road maintained by Respondent. The Court is of the opinion to award this claim for reasons more fully set forth below.
      The incident giving rise to this claim occurred at approximately10:30 a.m. on March 24, 2010. W. Va. Route 507 is a two lane, paved road with painted edge and center lines. Claimant testified that while trying to locate a storefront to his left–admittedly taking his eyes off of the road for a moment. Claimant did not notice that the road had abruptly narrowed and the passenger side of his vehicle struck a jagged remains of a missing portion of the curb. Claimant testified that there were no signs indicating that the road would suddenly narrow although there were painted lines on the roadway surface which indicated a narrowing of the road. As a result of this incident, two tires were punctured, causing Claimant to replace four tires. The total of Claimant’s damages equals $1,043.25. Claimant’s insurance carried a $500.00 deduction on the date of the incident; therefore, any award is limit to the deductible amount.
      The position of Respondent is that it did not have the duty to maintain the curb in question. Respondent claims that the responsibility lies with the City of Weirton. As support for its argument, Respondent cites a 1982 memorandum circulated to all district engineers and county superintendents stating that “[i]n the absence of a formal agreement to the contrary, no maintenance on curbs and sidewalks will be permitted.” The Court is not persuaded. Respondent has not provided evidence that the City of Weirton was a recipient of the 1982 memorandum. This Court has denied claims involving curbs in the past. See Hash v. Division of Highways, 27 Ct. Cl. 253 (2007). However, the Court is not constrained by this ruling where the facts suggest a flagrant disregard for an open and obvious risk along the roadway.
      In Fields v. Division of Highways, 28 Ct. Cl. 148 (2007), this Court held that the State can be liable for duties not undertaken despite the existence of an agreement between themselves and another entity holding the State harmless for nonperformance of those duties. In Fields, Claimant struck a manhole cover in the travel portion of the roadway. Respondent provided the Court with an agreement in which the city agreed to maintain manhole covers as well as curbs. Respondent testified that since the city agreed to maintain manhole covers it did not have the duty to remove a manhole cover from the road–even if it was an open and obvious danger to anyone traveling along the roadway. The Court’s reasoning stated that “the Respondent bears the [ultimate] responsibility for the maintenance of the roads. The Respondent took this road under its system. If there is another entity such as the City of Williamson that, by agreement, assumes this responsibility, then the Respondent has the right to seek reimbursement from the City of Williamson for the damages arising from this claim.”
      In the instant case, Respondent provides a memorandum that does suggest that cities have a duty to maintain the curbs within city limits. Although this may be the case, the curb was in such disrepair that Respondent had an affirmative duty to correct the open and obvious risk posed by it. This duty is compounded by the fact that this particular stretch of highway is a rapidly narrowing portion of W. Va. Route 507. If Respondent had corrected the condition of the curb, it could have sought indemnification from the City of Weirton if such an agreement actually exists. Thus, Respondent is negligent for the damage caused to Claimant’s vehicle.
      Notwithstanding Respondent’s negligence, the Court is also of the opinion that the claimant was negligent since he admittedly was looking for a storefront rather than watching the road. In a modified comparative negligence jurisdiction such as West Virginia, Claimant’s negligence may reduce or bar recovery in a claim. Based on the above, the Court finds that Claimant’s negligence equals ten percent (10%) of his loss. Since the negligence of Claimant is not greater than or equal to the negligence of Respondent, Claimant may recover ninety percent (90%) of the loss sustained. In accordance with the findings of fact and conclusions of law stated above, it is the opinion of the Court of Claims that Claimant should be awarded the sum of $450.00.
      Award of $450.00.

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