West Virginia Legislative Claims Commission

Volume Number: 30
Opinion Issued November 26, 2013
     Claimants appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimants, Stephen and Rebecca Sholes, brought this action to recover property damages which occurred when their home became flooded in Clendenin, Kanawha County. The Claimants allege that the flooding was caused by poor maintenance of a culvert along Thorofare Road. Thorofare Road is a public road maintained by Respondent. The Court is of the opinion to grant this claim for reasons more fully stated below.
      The facts giving rise to this claim occurred on July 19, 2012. Claimants testified that a sustained rain storm produced enough rain to flood their home. Claimants’ theory for the flooding was that the Respondent had left a piece of grading equipment on the road above their home, which is quite heavy, and that the weight of the equipment cause the culvert beneath the roadway to collapse. Claimants maintain that this caused rainwater that would otherwise have been diverted to run in the opposite direction and into Claimants’ home. Claimants stated that they had incurred water in the past; however, they have never been as inundated with water as they had been during this rain event. Claimants told the Court that they had contacted Respondent on numerous occasions concerning the grading equipment’s impact to the roadway above their home, but Respondent never responded to the complaint. As a result of the flooding, Claimants sustained damages to their home’s carpeting in the amount of $4,010.55. Claimants’ homeowners insurance did not cover this incident; therefore, Claimants are entitled to claim the full amount of their damages.
      Respondent’s witness, David Carl Fisher, Highway Administrator for Roane County, testified that it is not uncommon for Respondent to park heavy equipment along roadways for days. Mr. Fisher also stated that the equipment is quite heavy and could possibly cause the roadway and underlying pipes to collapse if left to sit for a given length of time. Mr. Fisher also testified that Thorofare Road is a priority two roadway, which means that any complaint made about the roadway would be low priority. Respondent does not dispute that the equipment was left along the roadway; however, Respondent argues that it did not have actual or constructive notice of the condition which Claimants allege caused damage to their home.
      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). Therefore, 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). “Actual notice” is based on direct evidence known by a person or entity while “constructive notice” is defined as "[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of . . .; notice presumed by law to have been acquired by a person and thus imputed to that person." Mace v. Ford Motor Co., 221 W. Va. 198, 653 S.E.2d 660 (2007) (citing Black’s Law Dictionary at 1090 (8th Ed. 2004)).
      In the instant case, the Court is of the opinion that Respondent had, at the least, constructive notice of risk posed by leaving a heavy piece of grading equipment parked along a priority two road and that it was aware of the possibility that road and culvert damage could occur. The Court finds also that Respondent should have taken necessary steps in order to correct the condition along Thorofare Road and to prevent water damage from occurring to Claimants’ property. Thus, the Court finds that the Claimants, based on this set of circumstances, may make a recovery for the damage to their property.
      It is the opinion of the Court of Claims that the Claimants should be awarded the sum of $4,010.55.
      Award of $4,010.55.

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