West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued January 10, 2012
     Claimants appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant brought this action for vehicle damage which occurred when their 2002 Ford Escape struck a patch of ice and slid into an embankment on County Route 106 near Terra Alto, Preston County. County Route 106 is a public road maintained by Respondent. The Court is of the opinion to grant the claim but reduce the award amount by Claimant’s comparative negligence.
      The incident giving rise to this claim occurred at approximately 6:50 a.m. on January 3, 2011. It had not snowed in the area for a week; however, the weather remained below a freezing temperature. The road is a two-lane paved road and frequently traveled by Claimant Rachel Rinehart. Ms. Rinehart was maintaining the speed limit when her vehicle slipped on a patch of ice, losing control of her vehicle and crashing into an embankment. Claimant testified that she had driven this road for many years without an accident, and that Respondent knew or should have known about icy conditions on County Route 106 which created a hazard to the traveling public. Claimant maintains that Respondent was negligent in failing to properly maintain County Road 106 prior to the incident.
      As a result of this incident, Claimants’ vehicle sustained damage in the amount of $982.00. Claimants insurance carry a $500.00 deductible; therefore, any recovery is limited to that deductible.
      The position of the Respondent is that it did not have actual or constructive notice of ice posing a risk to the traveling public on Timber Hill Drive at the time of the incident. Respondent stated that its employees had removed snow from the road a week earlier; therefore, they had no reason to be aware of ice accumulation.
      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, a Claimant must prove that Respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986); Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986).
      In the instant case, Respondent did engage in snow removal along County Route 106 prior to the incident; however, the Respondent should have taken greater care to reduce ice accumulation. Respondent could have limited the accumulation by placing various materials on the road. Especially since it is heavily traveled by school buses. However, to what degree Respondent could have known or should have known cannot be determined. Nevertheless, Claimants should be granted recovery for their damages. However, the Court is also of the opinion that Claimants bear some responsibility for their loss since she failed to take precautions due to it being the middle of winter. It is common knowledge to every West Virginian that black ice (especially on mountainous terrain) can form without warning. Thus, the Court finds Claimant also negligent for twenty-five percent (25%) of her damages.
      Accordingly, the Court makes an award of $500.00 reduced by comparative negligence of twenty-five percent for a total award of $375.00.
      Award of $375.00.

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