OPINION ISSUED JANUARY 28, 2000
FRED AND NETTIE RATCLIFF & LAWRENCE RATCLIFF,
S THE GUARDIAN AND NEXT FRIEND
OF BENJAMIN NICHOLS RATCLIFF, AN INFANT
VS.
DIVISION OF HIGHWAYS
(CC-96-472)

Donald R. Jarrell, Attorney at Law, for claimants.

Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for
respondent.
BAKER, JUDGE:

Claimants Fred and Nettie Ratcliff brought a claim for
property damage and Lawrence Ratcliff brought a claim for personal
injury to his son, Benjamin Ratcliff, both of which claims occurred
as a result of hillside slippage on County Route 29/9 (also known
as Webb Road) in Crum, Wayne County. County Route 29/9 is a road
owned and maintained by respondent in Wayne County. The Court is
of the opinion to deny the property damage claim and to award the
personal injury claim for the reasons more fully stated below.

The incident giving rise to the property damage claim occurred
on September 7 through 12, 1994. County Route 29/9 is an off-shoot
road of the Tolsia Highway in Wayne County. The road is a local
service route of secondary priority with a single twelve foot lane.
In 1978, claimants Fred and Nettie Ratcliff moved to property
located on County Route 29/9 where they reside Currently, claimant
Lawrence Ratcliff, his wife, and two sons occupy the property. At
the time of the time of the personal injury to Benjamin Ratcliff,
he was living in another house about forty feet away. Claimant
Nettie Ratcliff currently resides behind the manufactured home.
in a manufactured home with an addition on the front. There is a
porch on the front of the house. During 1990 the hillside along the
road began to slip. The hillside slip ended up against the side of
claimants' manufactured home. This hillside slip caused damage to
their manufactured home. Then, the road was cleaned and repaired by
respondent and later in 1990 steel pilings were installed in an
attempt to stabilize the hillside. During that year there was a
rain storm after which the steel pilings fell onto a building owned
by claimants, destroying it. The hillside also fell against the
house. Where the road first slipped, it pushed the house in,
nudging it against the floor. Respondent straightened the step of
the road, but did not remove the slip. According to respondent's
DisForce supervisor, Jim Alford, the steel pilings installed had
failed because the weight from the hillside slide above the road
caused the steel to fail and bend allowing dirt or sloughage to
slip into claimants' yard.
DisForce is respondent's heavy
maintenance group. Claimants were compensated $700.00 by
respondent at that time for the damages to their property.

Sometime prior to September 7, 1994, the hillside in the area
again slipped. During an investigation by Ben Savilla, an
investigator for respondent, information provided by the Federal
Mine Reclamation indicated that the hillside slippage was caused by
mine subsidence from a nearby mine. The investigator went to the
site, took photographs and did sightings of how the hillside slip
had moved off of the State's right-of-way. Since the expense of
core sampling outweighed its benefits, core sampling was not
utilized. The slope of the hillside slip appeared to be a gradual
twenty feet. The bank appeared to be eight to nine feet high and
the hillside was determined to be twelve to thirteen feet from the
bottom of the bank to the top of the bank. The front porch is
approximately twelve to fifteen feet from the hillside. A six to
eight foot by ten foot building and a four room house are also on
the property.The house is located in front of the manufactured
home, but down over the hill, unaffected by the hillside slip.

From September 7 through 12, 1994, respondent again effected
repairs to the road. After the failure of the piling wall,
respondent's DisForce elected to relocate the roadway into the
hillside which would provide a more stable environment. The
operation conducted by respondent was more of a removal. The
hillside had slipped onto the blacktop. Earth and rock had to be
removed. Respondent used trucks, a track loader and excavator to
complete the job. Both the hillside slip and the steel pilings
were removed. The road itself was moved back into the hillside and
stabilized in order to allow for the flow of traffic. Respondent
removed the wet, unstable material that had slid and replaced it
with dry material. When the blacktop was removed, stone was placed
on the dirt in order to stabilize the road. Eventually, the road
was moved about a lane inside the hill towards the ditch line to
reposition the road away from where it had slipped over the
hillside. After the work was completed, respondent cleaned the
area and made sure no sloughage was left on the hillside above or
below the loose material for slide prevention. This work
performed by respondent in September 1994 appeared to have
stabilized the road.

Currently, the hillside slip is ten feet at one spot, and
about four feet at another spot. The slip contains dirt, rocks of
different sizes, and a few trees. As a result of respondent's past
road repairs, the slip was pushed further down the hillside. Even
after necessary road repairs, this hillside slippage continued.
Claimants' manufactured home was once again damaged. The floor had
to be replaced, new sills were installed under the floor, and new
siding was put on the house. The cost to claimants was estimated at
$2,000.00. No appraisals or valuations have been made of the
property or the manufactured home. Claimants had grade work
completed on their property by a friend from Dunlow about three
months prior to the June 23, 1999, hearing. A small grader was
used to landscape the front yard and a two to six foot path was cut
out of the slide. Because the hillside slip continues, claimants are unable to use their property in a normal manner. They are in
constant fear of the area around the slip.

The incident giving rise to the personal injury claim occurred
on September 15, 1994. Benjamin Ratcliff is the son of claimant
Lawrence Ratcliff, and the grandchild of claimants Fred and Nettie
Ratcliff. On the day in question, Benjamin Ratcliff, who is now
eight years of age, but was about three years old at that time, was
playing in his grandparent's yard on County Route 29/9 about one
and one-half feet from the porch. During the period of September
7-12, 1994, respondent had taken out part of the hillside slip. On
this particular date of the incident an oblong rock, about three to
four pounds with sharp edges, fell about six feet from the top side
of the hill striking Benjamin Ratcliff in the forehead about three
inches above his nose. This incident occurred about four feet from
the porch.

Claimant Nettie Ratcliff witnessed the accident. Claimant
Lawrence Ratcliff was not present at the time of the accident, but
was informed of the accident by his mother and came to the scene
within five minutes. When claimant Lawrence Ratcliff saw that his
son was cut and bleeding, he immediately took him to Three Rivers
Medical Center in Louisa, Kentucky. At Three Rivers Medical
Center Benjamin Ratcliff received stitches and medication. The
medical expenses incurred were paid by his medical card.

Before the incident, Benjamin Ratcliff had no pre-existing
injures. He now appears to suffer from two to three severe
headaches per week, which last about an hour. At the onset of a
headache, Benjamin Ratcliff requires Motrin or Children's Tylenol
to relive his headache pain. He has a knot on his forehead about
the size of a nickel and a scar from the stitches. Also, Benjamin
Ratcliff is nearsighted and requires glasses. The last time he had
been seen by a physician was two months prior to the June 23, 1999,
hearing. At the request of the Court, Benjamin Ratcliff was
examined by Dr. Tommasina Papa-Rugino, a pediatric and adult
neurologist. Dr. Papa-Rugino ordered an MRI which was performed
upon the infant and a report of the results of the MRI was provided
to her. She then issued a clinical report in which she stated
"that the prognosis of post traumatic headaches is usually
excellent and the headaches only persist for a short period of
time. It is unlikely, although not unheard of, that post traumatic
headaches will persist for so long subsequent to an injury." The
Court concludes from the physical examination and the clinical
record that there is little probability that the headaches which
Benjamin Ratcliff complains of now are a result of the rock having
struck him on his head in 1994.

The position of respondent was that it properly maintained
County Route 29/9. When respondent's records were checked by the
Wayne County Storekeeper, Geoffrey Adkins, found no complaints on
or before 1994. Respondent's design employee, Jim Messer, found no
complaints in the design records which date back to about twelve to
fifteen years. Respondent was not noticed about the hillside slide problems. Only records for the hillside slip in September 1994
could be found by respondent. Since 1994, there have been no
further complaints received regarding the hillside slip problem.

When respondent is on notice of instability of a hillside
slip, and fails to take effective measures to deal with the
problem, the failure to do so is negligence. Bailey & Lucion v.
Division of Highways, 20 Ct. Cl. 55 (1994).

In the case at hand, respondent has been on actual notice of
the condition of County Route 29/9 (Webb Road). Evidence adduced
at the June 23, 1999, hearing demonstrated that complaints were
made previously to respondent regarding the condition of the
hillside slip. Four separate documents produced by claimants at
the June 23, 1999, hearing demonstrate that respondent was placed
on notice in 1989 regarding the problem. Respondent's records show
that on two prior occasions in 1990, repair of the hillside slip
was necessary.
Wayne County Storekeeper, Geoffrey Adkins, keeps
records only for six months to one year. The last search of the
records by the Wayne County Storekeeper regarding this claim was
completed in 1995 or 1996 and the hearing was conducted on June 23,
1999. Afterwards, respondent has been on the property several
times in order to take corrective measures and to stabilize the
hillside slip. However, the problem persisted and the damage
continued. There is sufficient evidence of negligence on the part
of respondent upon which to base liability in these claims.

Notwithstanding respondent's negligence, the Court is of the
opinion to deny the property damage claim. Claimants presented no
evidence of the cost of repairs to their property. This Court will
not speculate as to the claimants' property damages.

In the claim for and on behalf of Benjamin Ratcliff, the Court
is of the opinion to make a total award of $6,000.00 for his
personal injuries from the rock fall. The Court makes an award to
Lawrence Ratcliff as the legal guardian of Benjamin Ratcliff in the
amount of $4,000.00 for his pain and suffering as well as the
disfigurement, scar, and the knot on his forehead. In addition,
the Court makes an award in the amount of $2,000.00 to Lawrence
Ratcliff as the legal guardian of Benjamin Nichols Ratcliff for the
child's future medical needs, if any, necessitated by the injuries
which he received as the result of being struck by the rock.

The claim of Fred and Nettie Ratcliff is disallowed.

Award of $6,000.00 to Lawrence Ratcliff as the guardian and
next friend of Benjamin Nichols Ratcliff, an infant.
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