West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued March 23, 2012
     Robert E. Barrat, Attorney at Law, for Claimant.
     Travis E. Ellison III, Attorney at Law, for Respondent.
      Claimant brought this action for vehicle damage when a tractor-trailer owned by Claimant struck a rock while traveling in the northbound lane of W. Va. Route 340 near Harpers Ferry, Jefferson County. W. Va. Route 340 is a public 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 2:00 a.m. on September 25, 2009. W. Va. Route 340 is an uncompleted four-lane road that bottlenecks into a two-lane road along various stretches of the highway. This particular incident occurred along a stretch of two-lane road. At the time of the incident, Claimant’s driver, Lloyd Boyer, was delivering a load of lumber to its purchaser in Whitewash, Maryland. Mr. Boyer testified that as he was traveling along W. Va. Route 340 he suddenly came across a rock situated in the middle of the travel portion of the roadway. Mr. Boyer had no time to safely react to the presence of the rock, and consequently struck the rock with the Claimant’s truck. Mr. Boyer maintains that he has driven this particular route for at least five years on a daily basis and is familiar with the potential for rock falls in the area. As a result of the incident, Claimant’s tractor-trailer sustained extensive damage to its motor, oil pan, and tires in the amount of $26,502.50.
      The position of the Respondent is that it did not have actual or constructive notice of the rock situated in the roadway along W. Va. Route 340. Nathan Ware, Crew Supervisor for Respondent in Jefferson County, testified that he is familiar with W. Va. Route 340 but could not recall a particular incident in his thirteen years of employment in which a significant rock fall has occurred along the road. Mr. Ware testified that Respondent is aware of the potential for rock falls along W. Va. Route 340 and attempted to warn drivers by placing “falling rock” signs along the location.
      It is a well-established principle of law in West Virginia 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). 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 a sudden and unexplained rock fall 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 this case, the dangerous condition at issue is the presence of a rock in the travel portion of the roadway. Respondent’s tractor-trailer was not struck by falling rocks while traveling along the road–the tractor-trailer struck a stationary rock. Respondent was given no notice of this condition and had no reason to know of the condition despite the fact that Respondent admittedly was aware of the possibility–no matter how remote–of a rock fall in the area.
      Based on a clear lack of notice to Respondent, this Court is of the opinion to and does hereby deny this claim.
      Claim disallowed.

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