STATE OF WEST VIRGINIA
Report of the Court of Claims 1987-1989
Volume 17
STATE OF WEST
VIRGINIA REPORT OF THE COURT OF CLAIMS
For the Period from July 1, 1987 to
June 30, 1989
By
CHERYLE M. HALL
Clerk
Volume XVII
(Published by authority W.Va. Code §
14-2-25)
PERSONNEL OF
THE STATE COURT OF CLAIMS
Personnel of the State Court of Claims
Honorable George
S. Wallace, Jr
Honorable William W. Gracey
Honorable David G. Hanlon
Cheryle M. Hall Presidin
Judge Judge Judge Cle
Charles G. Brown
Former Judges
Attorney General
Honorable Julius
W. Singleton, Jr
Honorable A. W. Petroplus
Honorable Henry Lakin Ducker
Honorable W. Lyle Jones
Honorable John B. Garden
July 1, 1967 to
July 31, 1968
August 1, 1968 to June 30, 1974
July 1, 1967 to October 31, 1975
July 1,1974to
June 30, 1976
July 1,1974to December 31, 1982
II
PERSONNEL OF THE
STATE COURT OF CLAIMS III
Honorable Daniel A. Ruley, Jr July 1, 1976 to
February 28, 1983
Honorable James C. Lyons February 17, 1983 to
June 30, 1985
IV LETTER OF
TRANSMITTAL
Letter of Transmittal
To: His Excellency
The Honorable Cecil Underwood
Governor of West Virginia
Sir:
In conformity with the requirements of section twenty-five of the Court of Claims
law, approved March eleventh, one thousand nine hundred sixty-seven, I have the
honor to transmit herewith the report of the Court of Claims for the period
from July one, one thousand nine hundred eighty-seven to June thirty, one
thousand nine hundred eighty-nine.
Respectfully Submitted,
Cheryle M. Hall,
Clerk
TERMS OF
COURT V
Terms of Court
Two regular terms of court are provided for annually the second Monday of April
and September.
OPINIONS
TABLE OF CLAIMS
REPORTED VII
Table of Claims Reported
ADKINS, ESTA M. ADMINISTRATRIX OF THE ESTATE OF CECIL
ADKINS, JR., DECEASED vs. DEPT. OF HIGHWAYS
(CC-77-18) 16
ADKINS, SCOTT vs. DEPT. OF HIGHWAYS (CC-86-218) 1
AIDES DISCOUNT STORE, INC. vs. DEPT. OF HIGHWAYS
(CC-87-244) 34
ALFSTAD, HARDEN D. AND PHYLLIS L. vs. DEPT. OF HIGHWAYS
(CC-87-92) 48
ALLEN, LESTER B. AND THELMA M. vs. DEPT. OF
HIGHWAYS (CC-87-83) 49
ALPHA THERAPEUTIC CORPORATION vs. DEPT. OF HEALTH
(CC-87-315) 35
ANAWALT WESLEYAN CHURCH, PASTOR JAMES
BARNARD vs.
DEPT. OF HIGHWAYS (CC-86.-401) 19
ASTORG MOTOR COMPANY, MARION SPRAGG vs. DEPT. OF
HIGHWAYS (CC-86-184) 2
BAILEY, CARL NEILOUS vs. DEPT. OF NATURAL RESOURCES
(CC-86-438) 50
BAILEY, JOHN P., ET AL. vs. BOARD OF
REGENTS (CC-88-19) 203
BAKER, CAROL J. vs. DEPT. OF HIGHWAYS (CC-88-146) 169
VIII TABLE OF
CLAIMS REPORTED
BARBOURSVILLE BRIDGE CO. vs. DEPT. OF HIGHWAYS
(CC-84-201) 123
BARILE, JOHN F. vs. DEPT. OF HIGHWAYS
(CC-86-361) 99
BARKER, CLAUDE JR., EUGENE BARKER, RHODEN BARKER, LAURA TAYLOR, GRACE CLAYMON,
AND HELEN NEFF vs.
DEPT. OF HIGHWAYS (CC-87-115) 110
BAUER, HARVEY H. AND SHIRLEY vs.DEPT. OF HIGHWAYS
(CC-86-331) 8
BOGGAN, CHERYL A. vs. BOARD OF REGENTS (CC-87-474) 130
BOMBOY, ALICE HOPE AND DAVID LYNN vs. DEPT. OF
HIGHWAYS (CC-85-298) 144
BROWN, FRANK B. vs. DEPT. OF HIGHWAYS (CC-86-270) 27
BROWN, OPAL M. AND JOHN vs. DEPT. OF HIGHWAYS (CC-82-279) 37
BROWN, SCOTT A., ET AL. vs. DEPT. OF EDUCATION (CC-87-136 to
CC-87-144) 92
BROWNING, KENNETH DALE vs. DEPT. OF HIGHWAYS
(CC-87-506) 131
CALDWELL, ROY GENE vs. DEPT. OF HIGHWAYS
(CC-86-348) 9
CAMILLETTI, PAUL T. vs. ATTORNEY GENERAL (CC-89-18) 173
CAPLAN, HARRY J. vs. DEPT. OF HIGHWAYS (CC-86-155) 105
CAPON BRIDGE COMMUNITY AND SENIOR CENTER vs.
GOVERNORS OFFICE OF COMMUNITY AND
INDUSTRIAL DEVELOPMENT (CC-87-400) 96
TABLE OF CLAIMS
REPORTED IX
CASTO TECHNICAL SERVICES, INC. vs. BOARD OF REGENTS
(CC-88-354) 204
CITY OF FAIRMONT vs. DEPT. OF HIGHWAYS (CC-86-238) 28
CITY OF GLENVILLE vs. GOVERNOR’S OFFICE OF COMMUNITY
AND INDUSTRIAL DEVELOPMENT (CC-87-513) 96
CLEGG, SANFORD, III, vs. DEPT. OF CORRECTIONS (CC-86-456) ..
174
CLINE, RANDY AND LEONA KAY vs. DEPT. OF HIGHWAYS
(CC-87-69) 161
CLOWER, STEVEN D. vs. DEPT. OF HIGHWAYS (CC86-146) 116
COEN, WILLIAM 0. vs. DEPT. OF HIGHWAYS (CC-87-236) 216
CONSOLIDATED GAS TRANSMISSION CORPORATION vs.
DEPT. OF CORRECTIONS (CC-86-262) 97
COOPER, JERRY R. vs. DEPT. OF HIGHWAYS (CC-84-263) 70
COOPER, RUTH ANN vs. DEPT. OF HIGHWAYS (CC-87-14) 18
CSX TRANSPORTATION COMPANY vs. DEPT. OF HIGHWAYS
(CC-84-180) 94
CUNNINGHAM, BRADFORD R. vs. DEPT. OF HIGHWAYS
(CC-87-229) 125
DARRAH, ROBERT, ADMINISTRATION OF THE ESTATE OF
BRYAN DEAN DARRAH vs. DEPT. OF HUMAN SERVICES
(CC-86-102) 217
DEMOTTO PEERLESS COAL COMPANY, INC. vs. COAL-WORKERS’
PNEUMOCONIOSIS FUND (CC-88-73) 192
X TABLE OF
CLAIMS REPORTED
DOSS, BARRY M. AND KATHY L. vs. DEPT. OF HIGHWAYS
(CC-88-98) 148
DUTY, NANCY C. AND DONALD E. vs. DEPT. OF HIGHWAYS
(CC-87-169) 211
E.P. FOGLEMAN CONSTRUCTION CO., INC. vs. BOARD OF
REGENTS (CC-79-190) 40
EASTERN ASSOCIATES, A LIMITED PARTNERSHIP vs.
BOARD OF REGENTS (CC-87-156) 39
EDDY, DONNA vs. DEPT. OF HIGHWAYS (CC-87-488) 194
EDENS, WILLIAM C., JR., vs. STATE OF WEST VIRGINIA
(CC-87-218) 146
ELLIS, VIRGINIA vs. DEPT. OF HIGHWAYS (CC-87-180) 106
ELWIN E. ALIFF CONSTRUCTION COMPANY, INC. vs.
DEPT. OF NATURAL RESOURCES (CC-79-641) 3
ERWIN, ANITA ANN AND CRAIG SCOTT vs. DEPT. OF HIGHWAYS
(CC-88-154) 163
ESTEP, AMOS vs. DEPT. OF HIGHWAYS (CC-86-359)
10
FARLEY, LONNIE EDWARD vs. DEPT. OF CORRECTIONS
(CC-77-6) 29
FEDERER, DARLENE S. vs. DEPT. OF HIGHWAYS
(CC-88-204) 195
FIELDS, RONALD K. vs. DEPT. OF CORRECTIONS
(CC-87-215) 196
FITZWATER, WILLIAM RAY vs. DEPT. OF HIGHWAYS (CC-86-263) 176
TABLE OF CLAIMS
REPORTED XI
FORK RIDGE VOLUNTEER FIRE DEPT., INC. vs. STATE FIRE
MARSHAL (CC-86-384) 101
FORTNEY, WARREN E. AND MARY ANN FORTNEY vs. DEPT.
OF HIGHWAYS (CC-88157) 205
FRASER, MAXINE vs. DEPT. OF HUMAN SERVICES (CC-86-261) ... 30
FRIEND, ALFRED D. JR., AS ADMINISTRATOR OF THE ESTATE
OF KAREN M. FRIEND, DECEASED vs. DEPT. OF HIGHWAYS
(CC-85-327) 111
GERL, JAMES vs. HUMAN RIGHTS COMMISSION (CC-88-103) 120
GLASER, WILLIAM I. vs. DEPT. OF HIGHWAYS (CC-86-373) 102
GOODWIN, DENNIS L. vs. DEPT. OF HIGHWAYS (CC-87-18) 103
GREENE, RICHARD M. vs. DEPT. OF CORRECTIONS (CC-88-131) .. 198 GREGG, STEPHEN AND EMMA vs. DEPT. OF FINANCE AND
ADMINISTRATION (CC-79-5 14) 51
GROSE, MARGOT D. AND CHARLES W. vs. DEPT. OF HIGHWAYS
(CC-86-260) 53
HAMILTON, WILLIAM AND CAROLYN S. HAMILTON, HIS WIFE,
Ct a!. vs. DEPT. OF HIGHWAYS (CC-86-213) 208
HANSON, HELEN AND HOWARD vs. DEPT. OF HIGHWAYS
(CC-87-703) 157
HARTWELL, NORA vs. DEPT. OF HIGHWAYS (CC-87- 145) 107
HIVELY, TIMOTHY PAUL vs. DEPT. OF CORRECTIONS (CC-8848) 178
HOPE GAS, INC. vs. DEPT. OF HEALTH (CC-87-250) 36
XII TABLE OF
CLAIMS REPORTED
HORNER, JACK S. DIB/A
JADALEE STABLES vs. DEPT. OF
COMMERCE (CC-88-164) 165
HUFFMAN, GREGORY S. AND ALICIA vs. DEPT. OF HIGHWAYS (CC-86-151)
HUNT, SHEILA vs. DEPT. OF HIGHWAYS (CC-87-429) 132
HUNTER, WILLIAM C. vs. DEPT. OF HIGHWAYS (CC-86-188)...
HUZZEY, THOMAS E. vs. DEPT. OF MINES (CC-83-119) 126
ISON, EDWARD R. AND SHARON G. vs. DEPT. OF HIGHWAYS
(CC-88-61) 133
JIVIDEN, RONDUS vs. DEPT. OF HIGHWAYS (CC-86-452) 20
JOE HOLLAND CHEVROLET, INC. vs. DEPT. OF HUMAN
SERVICES (CC-86-344) 30
JONES, ARLISS AND JENNIFER WILLIAMS vs. DEPT. OF
HIGHWAYS (CC-88-303) 220
KELLISON, JOHN, ADMINISTRATOR OF THE ESTATE OF
RICHARD ALLEN KELLISON, DECEASED vs. DEPT. OF
HIGHWAYS (CC-85-396) 117
KING, MICHAEL P. vs. STATE BOARD OF REHABILITATION
(CC-88-197) 179
KNOTT, PAUL P., EXECUTOR OF THE ESTATE OF DELORES C. KNOTT, DECEASED vs. DEPT.
OF HIGHWAYS (CC-85-351) 54
KOUNS, BONITA M., ADMINISTRATRIX OF THE ESTATE OF
MICHAEL WAYNE KOUNS, DECEASED vs. DEPT. OF HIGHWAYS
(CC-86-215) 57
TABLE OF CLAIMS
REPORTED XIII
KUSHNER, JOHN R. AND SHERYL vs. DEPT. OF HIGHWAYS
(CC-86-319) 25
LACY, SURSHEL vs. DEPT. OF FINANCE
& ADMINISTRATION
(CC-87-111) 21
LAGOWSKI, JO ELLEN vs. DEPT. OF HIGHWAYS (CC-87-240) .... 128 LAYNE, VELMA D., III, AND ROBBIE vs. DEPT. OF
HIGHWAYS
(CC-86-45) 199
LAYOS, ROLANDO UGALDE vs. DEPT. OF HUMAN SERVICES
(CC-85-413) 134
LEFFEW, ROBERT AND LYDIA vs. DEPT. OF HIGHWAYS
(CC-86-79) 58
LIMING, PATRICIA AND ROGER vs. DEPT.
OF HIGHWAYS
(CC-81-424) 43
LONG, LEO vs. STATE AUDITOR’S OFFICE (CC-88-135) 135
LUSK, ORVILLE GLEN vs. DEPT. OF
HIGHWAYS (CC-88-58) 137
MARCUM, JARVEY G. vs. DEPT. OF HIGHWAYS (CC-87-78a) 149
MARTIN, APRIL LYNN vs. DEPT. OF HIGHWAYS (CC-86-304) 23
MASTER, RALPH W., JR., vs. DEPT. OF HIGHWAYS (CC-88-66) ... 200
MATTHEY, FRED vs. DEPT. OF CORRECTIONS (CC-87-9) 141
MAXEY, GEORGE R. AND SHIRLEY vs. DEPT. OF HIGHWAYS
(CC-86-323) 44
MCDOWELL, CONNIE J. vs. DEPT. OF HIGHWAYS (CC-87-242) ... 140
XIV TABLE OF
CLAIMS REPORTED
MCGRAW, NILA vs. DEPT. OF HIGHWAYS
(CC-88-198) 206
MCMILLAN, TIMMIE J. vs. DEPT. OF HIGHWAYS (CC-86-322) 60
MCPHERSON, EVERETT C. ADMINISTRATOR DBN OF THE ESTATE
OF LOSSIE J. McPHERSON, EXECUTOR OF THE ESTATE OF
CLYDE McPHERSON vs. DEPT. OF HIGHWAYS (CC80-229) 31
MESSER, ROY PAUL vs. DEPT. OF HIGHWAYS (CC-87--78b) 148
MICHAELSON, ROGER L., INDIVIDUALLY AND ROGER L.
MICHAELSON, AS NEXT FRIEND OF LYNETTE MICHAELSON, A
MINOR, AND LOIS J. MICHAELSON vs. DEPT. OF HIGHWAYS
(CC-85-16) 61
MILLER, JAMES E., JR. vs. DEPT. OF CORRECTIONS (CC84-218)... 45
MINCH, DAVID AND BARBARA vs. DEPT. OF
HIGHWAYS
(CC-88-127) 158
MOLLOHAN, OTIS vs. STATE AUDITOR’S OFFICE (CC-87-392).... 141
MOORE BUSINESS FORMS & SYSTEMS DIVISION vs. DEPT. OF
FINANCE & ADMINISTRATION (CC-86-212) 11
MOORE, LINDA ELAINE vs. DEPT. OF HIGHWAYS (CC-86-450) .... 23
MOORE, ROBERT M. AND JUANITA vs. DEPT. OF HIGHWAYS
(CC-87-38) 63
MORRISON, FREDDIE J. AND BARBARA J. vs. DEPT. OF
HIGHWAYS (CC-86-301) 33
MORTON, DEBRA LYNNE AND KENNETH PAUL vs. DEPT. OF
HIGHWAYS (CC-88-254) 201
TABLE OF CLAIMS
REPORTED XV
MOTORISTS MUTUAL INSURANCE COMPANY, AS SUBROGEE OF
NOAH THOMAS vs. DEPT. OF HIGHWAYS (CC-87-107) 64
O’DONNELL, ALBERTA D, AND JOHN G. vs. DEPT. OF FINANCE
AND ADMINISTRATION (CC-82-248) 138
OFFUTT, GEORGE C. vs. DEPT. OF HIGHWAYS (CC-87-427) 139
OTIS ELEVATOR COMPANY vs. DEPT. OF HEALTH (CC-89-7) ... 186
PALMER, RALPH W. vs. DEPT. OF HIGHWAYS (CC-88-137) 166
PETTY, W. MARSHALL AND PATRICIA A. vs. DEPT. OF
HIGHWAYS (CC-86-393) 14
PRATT, JOHN M. vs. DEPT. OF HIGHWAYS (CC-88-109) 143
QUICK, JANEY N. vs. DEPT. OF HIGHWAYS (CC-87-157)
104
R. L. BANKS & ASSOCIATES, INC. vs. PUBLIC SERVICE
COMMISSION (CC-88-302) 159
RODEHEAVER, LINDA AND VON vs. DEPT. OF HIGHWAYS
(CC-86-340) 77
ROGERS, H. JOHN vs. STATE TREASURER (CC-88-297) 186
S. J. GROVES & SONS COMPANY vs. DEPT. OF HIGHWAYS
(CC-82-295) 78
S. J. GROVES & SONS COMPANY, FOR THE BENEFIT OF
ATLAS MACHINE AND IRON WORKS, INC. vs. DEPT. OF
HIGHWAYS (CC-83-233) 78
SAFECO INSURANCE, AS SUBROGEE FOR GEORGE GUTHRIE vs.
DEPT. OF HIGHWAYS (CC-87-96) 213
XVI TABLE OF
CLAIMS REPORTED
SATTERFIELD, STANLEY D. vs. DEPT. OF CORRECTIONS
(CC-86-382) 202
SECRETARY OF STATE vs. DEPT. OF EDUCATION (CC-87-432) .... 71
SHAFFER, KIM P. vs. DEPT. OF HIGHWAYS (CC-87-186) 129
SHANK, JOHN R. vs. DEPT. OF HIGHWAYS (CC-88-21) 143
SHORT, STEPHANIE R. vs. DEPT. OF EDUCATION (CC-88-253) .... 69
SHREWSBURY, MAXINE vs. DEPT. OF
HIGHWAYS (CC-87-179) ...
109
SNODGRASS, CARL RAY AND CHRISTINE SNODGRASS, HIS
WIFE; JAMES H. TAYLOR AND GLADYS TAYLOR, HIS WIFE;
OWEN FACEMIRE, JR. ,AND DELORES FACEMIRE, HIS WIFE;
HELEN KING, ADMINISTRATRIX OF THE ESTATE OF GERALD L.
KING, DECEASED;AND JOANN SNODGRASS, ADMINSTRATRIX
OF THE ESTATE OF DANIEL C. SNODGRASS, DECEASED vs.
DEPT. OF HIGHWAYS (CC-76-55) 113
SNYDER, LUCY vs. DEPT. OF EDUCATION (CC-88-324) 187
SOUTH, WALTER M. vs. DEPT. OF HIGHWAYS (CC-87-160) 108
SPANGLER, LEONARD W., JR., vs. DEPT. OF HIGHWAYS
(CC-87-29) 119
SPENCE, LARRY C. vs. DEPT. OF HIGHWAYS (CC-86-284) 72
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, AS SUBROGEE OF PAMELA REID AND
HOWARD REID vs.
DEPT. OF HIGHWAYS (CC-88-120) 188
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, AS SUBROGEE OF VERNON MARCUM,
JR., AND VERNON
TABLE OF CLAIMS
REPORTED XVII
MARCUM, JR., INDIVIDUALLY vs. DEPT. OF HIGHWAYS
(CC-86-210) 83
STEINMAN, SUZANNE vs. DEPT. OF HIGHWAYS (CC-87-717) .... 167
STOVER, CLIFFORD B., ET AL. vs. DEPT. OF LABOR (CC-86-354) .. 85
STOVER, PEGGY vs. DEPT. OF HIGHWAYS
(CC-88-156) 151
STRAW, JEANETTE E. vs. DEPT. OF HIGHWAYS (CC-88-145) 189
STURGEON, JAMES H. vs. DEPT. OF HIGHWAYS (CC-88-296) 207
TERRELL, LAWRENCE AND SARAH vs. DEPT. OF HIGHWAYS
(CC-86-271) 121
THAXTON, MARTHA, ADMINISTRATRIX OF THE ESTATE OF
JOSEPH PHILIP HANCOCK, DECEASED vs. DEPT. OF
HIGHWAYS (CC78-263) 65
THE BOARD OF EDUCATION OF THE COUNTY OF McDOWELL,
A CORPORATION, BENNY J. CASSADY, AS PRESIDENT, AND
J. CURTIS HARMON, LINDA K. DOUGLAS, HOBERT F. MUNCEY
AND TED D. OSBORNE, AS MEMBERS OF SAID THE BOARD OF
EDUCATION OF THE COUNTY OF McDOWELL, A CORPORATION
vs. THE WEST VIRGINIA BOARD OF EDUCATION (CC-85-114) .... 170
THE BOARD OF EDUCATION OF THE COUNTY OF McDOWELL,
A CORPORATION, TONY J. ROMERO, AS PRESIDENT, AND
BENNY J. CASSADY, LEONARD H. NESTER, NOAH DELLORSO,
AND TED OSBORNE, AS MEMBERS OF SAID THE BOARD OF
EDUCATION OF THE COUNTY OF McDOWELL, A CORPORATION
vs. THE WEST VIRGINIA BOARD OF EDUCATION (CC-84-128) .... 170
THE LANE CONSTRUCTION CORPORATION vs. DEPT. OF
HIGHWAYS (CC-82-164) 73
XVIII TABLE OF
CLAIMS REPORTED
THE LANE CONSTRUCTION CORPORATION vs. DEPT. OF
HIGHWAYS (CC-83-172) 180
THOMAS,. LINDA, ET AL. vs. DEPT. OF HEALTH (CC-87-521 to CC-87-671, CC-87-679
to CC-87-687, CC-87-727 to CC-87-743, CC-88-6
to CC-88-16, CC-88-22, CC-88-25, and CC-88-30 to CC-88-32) 87
THOMPSON, FREAL, JR., vs. DEPT. OF HIGHWAYS (CC-88-283)... 208
TREADWAY, THOMAS vs. DEPT. OF HIGHWAYS (CC-87-417) .... 168 UMBERGER, CHRISTOPHER LEE vs. DEPT. OF CORRECTIONS
(CC-86-411) 160
VAN VOLUNTEER FIRE DEPT. vs. STATE FIRE MARSHAL
(CC-86-353) 15
VARNEY, VIRGIE MAE AND WILLIAM ERNEST
vs. DEPT. OF
HIGHWAYS (CC-82-195) 190
VECELLIO & GROGAN, INC. vs. DEPT. OF HIGHWAYS
(CC-83-207 and CC-83-208) 153
WELCH, CHARLES R., SR., vs. DEPT. OF
HIGHWAYS (CC-88-96) 164
WELCH, EDWARD S. vs. DEPT. OF HIGHWAYS (CC-87-82) 67
WEST HAMLIN VOLUNTEER FIRE DEPT., INC. vs. STATE FIRE
MARSHAL (CC-86-349) 12
WEST VIRGINIA SAFETY COUNCIL, INC. vs. DEPT. OF HIGHWAYS
(CC-87-50) 26
WESTVACO CORPORATION vs. DEPT. OF HIGHWAYS (CC-88-285). 214
TABLE OF CLAIMS
REPORTED XIX
WHITE, HARRY ALLAN, INDIVIDUALLY, AND AS
ADMINISTRATOR OF THE ESTATE OF GEORGIA M. WHITE vs.
DEPT. OF HIGHWAYS (CC-86-287a) 218
WILSON, ALBERT F., SR., vs. DEPT. OF HIGHWAYS (CC-86-431) ... 68
WINEMILLER, GEORGE 0. AND MARILYN R. WINEMILLER,
HIS WIFE, et al. vs. DEPT. OF HIGHWAYS (CC-86-213) 209
WITHROW, TERRY JAMES vs. DEPT. OF HIGHWAYS (CC-86-225) .. 47
WRIGHT, ROBERT L. AND ROBIN L. WRIGHT vs. DEPT. OF
HIGHWAYS (CC-87-118) 98
XEROX CORPORATION vs. DEPT. OF CORRECTIONS (CC-88-141) .. 69
W.Va.] REPORTS
STATE COURT OF CLAIMS 1
Cases Submitted and Determined
in the Court of Claims in the
State of West Virginia
OPINION ISSUED JULY 8, 1987
SCOTT ADKINS
Vs.
DEPARTMENT OF HIGHWAYS
(CC-86-21 8)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On April 5, 1986, the claimant was operating his 1980 Oldsmobile in a
westerly direction on West Virginia Secondary Route 42 between Midkiff and Mud
River Road, Lincoln County. At this site, on the right-hand side, there is a
section of the road which has washed away. An oncoming truck approached
claimant’s vehicle. The headlights from this truck deterred claimant from
seeing the deteriorated section of the road. As a result, claimant’s vehicle
left the road, went over a bank, and struck a rock cliff. There was damage to
the front bumper, the right front fender, and windshield of claimant’s vehicle.
Claimant seeks $20,000.00 for damage to the vehicle and for personal injuries.
Claimant alleges that respondent was negligent for its failure to have warning
signs and guardrails at this location.
At the time of this incident it was approximately 9:30 p.m. and dark. claimant
was operating his headlights on low beam. The road in question is a two-lane,
blacktop highway. The road was dry.
Scott Carl Adkins, Jr. testified that he viewed the accident scene and took
photographs on April 8, 1986. He stated “... the
berm had gone off into the road, till it met the road, and some of the term was
missing.” He estimated that four to six inches of the pavement area itself was
gone.
Mr. Jackie Weaver, road supervisor in Lincoln County for respondent at the time
of this incident, testified that respondent tried several times to stop the
slipping of this particular
2 REPORTS STATE
COURT OF CLAIMS [W.Va.
road. He further testified that respondent frequently placed paddle-like signs
up right along the edge of this road.
Mr. Roger Lovejoy, county maintenance supervisor in Lincoln County for
respondent on April 5, 1986, testified that the road in question is a low
priority or secondary road. He stated that prior to this incident, there were
safety paddles in the break location on this road.
The evidence in this case reveals that the road in question is a secondary
road. The respondent had placed warning paddle signs on several occasions prior
to this incident which indicates that respondent did take safety precautions
for the travelling public.
The Court is of the opinion that negligence on the part of the respondent has
not been established and, therefore, the Court denies this claim.
Claim disallowed.
OPINION ISSUED JULY 8, 1987
ASTORG MOTOR COMPANY, MARION SPRAGG
VS.
DEPARTMENT OF HIGHWAYS
(CC-86- 184)
Claimant, Marion Spragg, appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
Claimant was operating a 1986 Buick Century titled in the name of Astorg Motor
Company. This vehicle was involved in an incident which is the subject of this
claim. Astorg Motor Company did not sign the claim petition nor did it or its
representative appear at the hearing. Claimant seeks $161.43, the cost of the
damaged tires.
Claimant Spragg testified that the vehicle in question is a “loaner car”. He
was utilizing it while his own automobile was being repaired by Astorg Motor
Company. He was travelling west in Route 19 returning from Shinnston on March
13, 1986, when the Buick struck a railroad spike in a hole. He was proceeding
at approximately 35 miles per hour. He stated that, on the right side of the
road, there was a sharp object appearing to be a railroad spike in the hole.
This spike damaged the tires of the vehicle when the vehicle struck it.
W.Va.] REPORTS
STATE COURT OF CLAIMS 3
The Court will not consider the merits of this claim as it has been filed by
the proper party. Astorg Motor Company is the proper party claimant. For this
reason the Court is of the opinion to, and does, deny the claim.
Claim disallowed.
OPINION ISSUED JULY 8, 1987
ELWIN E. ALIFF CONSTRUCTION
COMPANY, INC.
VS.
DEPARTMENT OF NATURAL RESOURCES
(CC-79-641)
F. Joseph Buffa, Attorney at Law, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
WALLACE, JUDGE:
This claim arises out of the construction of group camp facilities at Panther
State
forest, McDowell County, West Virginia. The contract was entered into by
claimant Elwin E.
Aliff Construction Company, Inc. and respondent Department of Natural Resources
on July 11,
1974. The term of the contract was 240 days. The contract completion date was
extended to May
28, 1977, by Change Order #7. The actual completion date for the project was
September 15,
1977. The parties, by their respective counsel, stipulated that neither the
claimant nor the
respondent have any of the invoices or itemizations regarding the specific
items of damages alleged
by the claimant in this claim.
Claimant contends that it performed the following items as extra work for which
it should be compensated: Item #2 Extra fill inside and outside buildings, Item
#3 extra block and foundation work, Item #4 Removal of stumps, Item #6 Flashing
installed under wood band around buildings, Item *7 Filling of beams where
lumber cracked, Item *8 Shower stalls which were approved and then rejected,
Item #9 Repainting decks and ramps, Item #11 Additional overhead, Item #14
Repair and reflash roof at cabin, Item #15 Adding electrical contractors
to protect kitchen equipment, and Item #16 Adding back liquidated damages.
Claimant amended the amount of its original claim to $53,920.00 at the hearing.
Claimant contends that the plans for the project did not correlate with the
actual contour of the site. The construction site for the project is a long,
sloping site. It was necessary for claimant to place fill for the main lodge
and the parking lot which was not indicated in the
4 REPORTS STATE
COURT OF CLAIMS [W.Va.
plans and specifications. The fill was necessary to bring the floor levels up
to the levels at which the slabs could be poured. Then backfill was placed
against the foundations of the buildings. Claimant also alleges that the
additional fill includes the fill required for the parking lot.
The respondent contends that the floor elevations of the cabins were adjusted
and that although the elevation lines might not be the same, the amount of fill
that was used was the same. As the respondent determined that the increases in
fill were not substantial increases i the amount of grading performed at the
parking lot, the respondent denied claimant additional compensation for the
fill and grade work performed on the parking lot.
During construction of the cabins, it was necessary for the walls of the cabins
to be compacted as the plans did not allow for backfill. The specification
included in the terms of the contract required that the opposite be done, i.e.,
backfill and then pour the concrete slab. As a result of the specifications,
the walls deteriorated. The claimant was then required to patch in and hand
fill these areas. This occurred five or six times during construction of the
cabins. As a result, extra labor was required. Item #3 is connected with the
backfill problem as the breakdown in the foundations of the cabins necessitated
additional block, mortar, steel, and labor which constitutes for the amount
claimed in Item #3.
Concerning Item #4, claimant contends that it was the responsibility of the
respondent to pull the stumps in shaded areas indicated on the plans. As this
was not done, the claimant removed the stumps. Claimant alleges extra expense
for the removal of the stumps and delay on the project when stumps were not
removed in a timely manner.
Respondent agrees that claimant s personnel assisted in the removal of some of
the stumps at the project site. However, respondent contends that it removed
the majority of the stumps and that at any time its personnel was requested,
they removed the stumps as requested.
Item #6 for installation of flashing under the lodge and cabin roofs appears to
be indicated on the plans, and, therefore, claimant is not entitled to this
item as extra work.
The damages alleged in Item #7 involve extra work performed by claimant in
filling cracks in the wood beams placed for the ceilings in the lodge and
cabins. Respondent required claimant to fill cracks in the beams in accordance
with contract specifications for painting. Claimant stained the beams and
contends that stain is not within the specifications. The Court has determined,
upon reviewing the specifications, that filling cracks in the beams was
unreasonable and a strained interpretation of the specifications.
As to Item #8 relating to the installation of the shower stalls, claimant
alleges that shop drawings for the shower stalls were submitted to respondent,
approved by the respondent, and the stalls were, in fact, installed by the
claimant at the project. However, claimant was then required to remove these
shower stalls and replace the same with another set of shower stalls which had
to be ordered and then installed. This caused claimant delay in the work being
W.Va.j REPORTS
STATE COURT OF CLAIMS 5
performed and extra work as the new shower stalls had to be installed after
removal of the first stalls. Claimant did not receive a credit for the first
set of shower stalls from the supplier and was under the impression that
respondent would sell the stalls and reimburse the claimant. The claimant has
not received any payment for the first set of shower stalls.
Item No. 16 for liquidated damages was charged by the respondent against the
claimant for 110 days at $50.00 per day for a total amount of $5,500.00.
Claimant alleges that the delays causing the delay in completion of the project
were the faulty of the respondent. These delays involved thefts of claimants
materials on the project when the gates to the park were not closed by
respondent’s personnel; the failure of respondent to remove the stumps in a
timely manner; and problems with the approval of range hoods for the kitchens.
Donald Preast, Construction Supervisor for respondent at the time of this
construction (from July 21, 1975 through August, 1976), testified that he
observed the owner and general manager of claimant corporation, Elwin Aliff, at
the construction site approximately five times during the time that he was
assigned to the project. He kept a diary of his time at the site. Included in
the diary were the number of people who worked on any given day for the
duration oft the time during which he was on the project. He testified that
there were many good days on which claimant could have worked but did not have
personnel on the job. He stated that there were things that claimant’s workmen
could have been doing to bring the job to completion at an earlier date. He
stressed the fact that this job lacked a superintendent, and the specifications
required that a competent superintendent be on the job at all times. In
addition, the specifications called for a schedule on the job, and there was no
schedule to his knowledge. He explained that a number of items included in the
claim were subject to force account procedures. The procedures for force
account work are set out in the specifications of the contract. The items for
which the claimant is entitled to extra compensation based upon change orders
included repainting (Item #9), repairing and reflashing (Item #14), and the
electrical contractors (Item #15). He stated that for force account, the
contractor furnishes the name, labor, time, date, time slips, wage rate, and
invoices for materials. The respondent admits the extra work was done although
it has not been provided with invoices for labor and materials charged by
claimant for these items and, therefore, has not been paid.
As to Item #11 for additional overhead arising out of delays on the project,
the Court has determined that these expenses are too speculative in nature. The
Court denies this item.
The Court finds from the evidence that claimant should be paid additional
monies for this construction project. While claimant was partially at fault for
failing to properly supervise this job and may have failed to follow the force
account procedures set forth in the contract, it is unconscionable for the State
to receive the benefit of the additional work claimant was required to perform
without compensation.
6 REPORTS STATE
COURT OF CLAIMS [W.Va.
The claimant is entitled to $774.00 for filling the beams, $3,600.00 for the
extra shower stalls, $747.83 for the additional electrical work. $2,052.47 for
the repair and reflashing of the cabin roof, $599.00 for separating the decks
and ramps, and $4,300.00 for extra block and foundation work - for a total award of $12,073.30.
Award of $12,073.30.
OPINION ISSUED JULY 8, 1987
GREGORY S. HUFFMAN AND ALICIA HUFFMAN
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-151)
Claimant Gregory S. Huffman appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
This claim was originally styled solely in the name of Gregory S. Huffman, but
when the testimony indicated that the vehicle, a 1985 Ford Escort, was titled
in the names of Gregory S. Huffman and Alicia Huffman, the Court, on its own
motion, amended the style of the claim to reflect that fact.
Claimant Gregory Huffman testified that he was operating the vehicle on March
2, 1986, on Route 114 travelling toward Charleston, when the vehicle struck a
pothole. He stated that the incident occurred at approximately 8:00 p.m., and
visibility wa poor due to rain. He was travelling at approximately 35 miles per
hour. As a result of the incident, a beauty ring and a wheel were damaged in
the amount of $73.20
Claimant Gregory Huffman testified that he was familiar with this section of
roadway as he had driven it every day for 13 years. He further stated that the
hole was approximately 2 1/2 feet in diameter, and 12 to 16 inches deep. He
stated, in reference to this hole, “It had been patched. I can only guess that
the rain and the traffic over it had caused the patching material to come out
os the hole.”
The evidence in this record indicates that the defective condition of the
pavement appeared suddenly and that the respondent had previously repaired the
hole. Moore vs. Department of Highways, CC-85-153 (February 19, 1986). Ad.kins vs. Sims,
130 W.Va. 645, 46 S.E.2d 81 (1947), holds that the State is neither an insurer
nor a guarantor of the safety of the
W.Va.J REPORTS
STATE COURT OF CLAIMS 7
motorists on its highways. The Court is of the opinion that negligence on the
part of the respondent has not been established, and therefore, the Court
denies the claim.
Claim disallowed.
OPINION ISSUED JULY 8, 1987
WILLIAM C. HIJNTER
VS
DEPARTMENT OF HIGHWAYS
(CC-86- 188)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
The claimant’s wife, Martha Elizabeth Hunter, was operating her husband’s
vehicle in a westerly direction on Kanawha Turnpike, Kanawha County when the
vehicle struck a pothole. The incident occurred on February 23, 1986, at
approximately 12:15 a.m. It was dark and it had been raining earlier in the
evening. The vehicle is a 1978 Dodge Omni. As a result of the incident, two
rims and a tire on the automobile were damaged in the amount of $98.51.
Claimant’s wife testified that she had picked up her daughter and a friend of
her daughter at the skating rink in Kanawha City. The girls accompanied her in
the vehicle. She stated that she was familiar with that section of the Kanawha
Turnpike, and she had observed the pothole previous to the incident. She drove
this route daily both at night and during the day. She noted that there were
numerous potholes that had been patched. She had not notified respondent of the
condition of the road.
Mr. Joseph L. Lilly, employed by the respondent as a foreman for the last six
years stated that his duties include maintenance on the Kanawha Turnpike, which
has a designation of Route 12. He had receive no complaints regarding this
particular pothole.
The law of West Virginia is well established that the State is neither an
insurer nor
a guarantor of the safety of persons travelling on the highways. Adkins vs.
Sims, 130 W. Va. 645,
45 S.E.2d 81(1947); Parsons vs. State Road Commission, 8 Ct.Cl. 35
(1969). For the respondent
to be found liable for damages caused by road defects of this type, the
claimant must prove that
the respondent had actual or constructive notice of the defect. Davis Auto
Parts vs.
8 REPORTS STATE
COURT OF CLAIMS [W.Va.
Department of Highways, 12 Ct.Cl. 31(1977). Since the claimant brought
forth no evidence to that effect and did not meet the burden of proof, this
claim is denied.
Claim disallowed.
OPINION ISSUED JULY10, 1987
HARVEY H. BAUER AND SHIRLEY BAUER
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-33 1)
Claimant, Shirley Bauer, appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
This claim was originally styled in the name of Shirley Bauer, but the
testimony indicated that the vehicle, a 1986 Pontiac Grand AM, was titled in
the name of Harvey H. Bauer and Shirley Bauer. The Court, on Ms. Bauer s
motion, amended the style to include Harvey H. Bauer as an additional claimant.
Claimant Shirley Bauer testified that she was operating the vehicle in a
northerly direction on Route 61 between Crown Hill and East Bank, Kanawha
Count, when the vehicle struck a hole in the pavement. She was alone in the
vehicle at the time. The incident occurred on August 24, 1986, at approximately
6:00 p.m. The weather was clear. The highway is a two- lane, blacktop road. It
was not yet dark at the time of this incident. As a result of striking the
hole, it was necessary to replace a wheel and cover and to have the automobile
aligned in the amount of $158.70.
Claimant Shirley Bauer testified that the hole was in the travel portion of the
highway. It was located in the northbound lane, the lane in which she was
travelling. She described the hole as being a three foot by three foot section in
the pavement. She estimated that she had been travelling in a straight path for
approximately one hundred feet before her vehicle struck the hole. Ms. Bauer
alleges that someone was placing a new culvert at this and other locations and
had failed to place a warning sign. She admitted that she was not aware whether
respondent, a utility, a contractor or some other individual was performing the
work. She had not travelled the route recently, at the time of the incident,
and had not complained of the defect to the respondent.
W.Va.] REPORTS
STATE COURT OF CLAIMS 9
James P. Dingess, County Supervisor for the eastern half of Kanawha County with
respondent, testified that he reviewed respondent records. Respondent had not
been doing any work just immediately prior to the date of this incident. He
further stated that on occasion, contractors and utility companies alter the
surface of highway in this area.
The law of West Virginia is well established that the State is neither an
insurer nor a guarantor of the safety of persons travelling on its highways. Adkins
vs. Sims, 130 W.Va. 645, 45 S.E.2d 81(1947); Parsons vs. State
Road Commission, 8 Ct.Cl. 35 (1969). For the respondent to be found liable
for damages caused by road defects of this type, the claimant must prove that
the respondent had actual or constructive notice of the defect. Davis Auto
Parts vs. Department of Highways, 12 Ct.Cl. 31(1977). Since the claimant
brought forth no evidence to that effect and did not meet the burden of proof,
this claim is denied.
Claim disallowed.
OPINION ISSUED JULY10, 1987
ROY GENE CALD WELL
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-348)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On July 9, 1986, the claimants automobile was parked on the north side of 3rd
Street in Wayne, Wayne County, across the street from a Department of Highways
garage building. During a rain and windstorm, a part of the roof of the
building became dislodged and struck claimant s automobile. He seeks $716.00
for the resulting damage.
Claimant stated that the roof in question was leaking, inferring that it was in
bad condition, subject to being blown off in a windstorm. Claimant had
purchased the automobile, a 1977 Volkswagen Sirocco, for $250.00. None
of the work necessary for the repair of the automobile had been done at the
time of the hearing.
Claimant stated that he has been employed by respondent as an Operator 2 since
1976. He usually parks his vehicle in the same place where he parked it at the
time of this
10 REPORTS STATE
COURT OF CLAIMS [W.Va.
incident. He had never experienced problems in the previous occasions when he
had parked the vehicle at this location. He had never made a complaint.
Mr. Donald H. Akers, the Wayne County Supervisor for respondent, testified that
before this incident, he had not had any problems with the roof at the facility
in question. He stated that on July 9, 1986, there was an unusual storm with
rain and high winds.
There has not been a showing of any negligence on the part of the respondent.
The Court is of the opinion to, and does, deny the claim.
Claim is disallowed.
OPINION ISSUED JULY 10, 1987
AMOS ESTEP
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-359)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On August 27,
1986, the claimant was operating his 1983
Chevrolet pickup truck in a northerly direction on Bull Creek, McDowell County,
when the vehicle struck some large rocks. Claimant seeks $86.63, which amount
represents the damage done to the wheel of the truck.
Claimant testified that he was travelling to Jaeger from his home in Mohawk.
The road in question is a one-lane, blacktop highway. It was 2:00 p.m. or 3:00
p.m. and bright daylight. The accident occurred on a straight stretch of the
road about 200 to 300 feet in length. Claimant stated that there was a coal
truck approaching in the opposite lane. As the road is narrow, he drove his
vehicle to the right side of the pavement and struck some rocks laying on the berm.
He stated that bulldozing activity had taken place in that area. The equipment
was not that of the respondent. The bulldozing operation had cause the rocks to
slide onto the berm. He stated that the rocks ‘... was almost as big as a water bucket, and there was a couple or three of
them.”
W.Va.J REPORTS
STATE COURT OF CLAIMS 11
Claimant further stated that he was aware that the rocks were at that location
prior to the time which his vehicle struck them. He had alerted respondent to
this hazard before this incident.
William A. England, County Supervisor - McDowell
County, for respondent, testified that road 3/i is a State local service road,
and there is very little maintenance on it because it is very low priority.
There are less than 50 vehicles a day on this highway. Respondent had not been
doing any work in the vicinity of this incident immediately prior to August 27,
1986. Mr. England did not take any action when claimant reported the hazard.
Priority roads are worked before low priority roads.
This Court has held in the past that if an independent contractor was engaged
in the construction work, the respondent cannot be held liable for the
negligence, if any, of such independent contractor. (Harper vs. Dept. of Highways, 13 Ct.Cl. 274 [19801)
For this reason, the Court is of the opinion to, and does, deny this claim.
Claim disallowed.
OPINION ISSUED JULY10, 1987
MOORE BUSINESS FORMS
& SYSTEMS DIVISION
VS.
DEPARTMENT OF FINANCE & ADMINISTRATION
(CC-86-2 12)
James Ruziska, Sales Representative, appeared for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAM:
Claimants company seeks $437.82 for freight charges from the factory to
Charleston, return freight, and the restocking charge for paper products ordered
by the respondent. There was some confusion concerning this particular order,
and this expense resulted from same.
The purchase order, dated October 2, 1984, stated a request for 499,200 8 1/2 x
11 one-part computer forms of green tinted paper for respondent. There was a
typographical error on the purchase order as respondent intended to order only
160,000 forms. A credit of $1,800
12 REPORTS
STATE COURT OF CLAIMS [W.Va.
was issued to respondent to cover the error. Claimant company shipped the
number of forms indicated on the purchase order; however, the paper was white
computer paper rather than the requested green-tinted paper. To rectify this
additional problem, respondent agreed to keep the excess paper and sell it to
other agencies. The freight company was supposed to pick up 160,000 forms, but
picked up all 499,200 instead. Respondent admits liability in the amount of
$176.18 for the original freight on the mistaken order of 499,200 copies.
Ms. Helen Kay Wilson, Manager of Administrative Services for respondent,
testified that there was a typographical error made in the State contract order
for this claim. She confirmed that the company picked up the entire 499,200
sheets of paper. She stated that respondent would not have incurred the
restocking and return freight charges, but for the mistake of claimant company.
Virginia Shelton, Procurement Officer for respondent, testified that she made
the arrangements to sell the 399,000 sheets to other agencies. She stated that
she did not prepare the bill of lading for the freight company in this
instance. The bill of lading determines the amounts of paper to be picked up by
the freight company.
There was no explanation as to whether the claimant issued the order to the
freight company for the bill of lading. Claimants sales representative, James
Ruziska, has no knowledge whether claimant’s factory prepared the bill of
lading or whether it was prepared by Overnight, the freight company.
The evidence in this claim is unclear as to the origin of the error and which
party was responsible for same. There being no proof that the claimant made
this error, the Court grants an award to the claimant company in the amount of
$176.18.
Award of $176.18.
OPINION ISSUED JULY10, 1987
WEST HAMLIN VOLUNTEER
FIRE DEPARTMENT, INC.
Vs.
STATE FIRE MARSHAL
(CC-86-349)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 13
PER CURIAM:
Claimant, West Hamlin Volunteer Fire Department, Inc., alleges that the
respondent, the State Fire Marshal, wrongfully denied it a share of funds
distributable from municipal pensions and protection funds for the fiscal year
1985086. Certified similar fire departments had each received $4,575.93. The
funds are provided by a State tax on fire and casualty insurance premiums.
In W.Va. Code §33-3-14d (b), the State Fire Marshal, “... Before the first day of August ... of each calendar year ... is required to report to the state treasurer the names and addresses of
all volunteer and part volunteer fire companies and departments within the
state which meet the eligibility requirements established in W.Va. Code
§8-15-8a.’ One of the requirements therein is that:
“Each volunteer or part volunteer fire company or department must:
(a) Submit and maintain current submission of fire loss data to the state fire
marshal, including verification via notary public, if no fire loss has
occurred;”
The State Fire Marshal provides forms for the filing of monthly reports for
satisfying this requirement and forms for applying for certification. Claimant
had timely filed its application for certification.
Walter Smittle III, the State Fire Marshal, testified that he had not certified
the claimant for a share of the fund because he had not received reports from
the claimant for the months of February, March, April and May of 1986, when he
submitted his certification to the State Treasurer on July 30, 1986, for the
fiscal year 1985-86. Respondents exhibits included copies of reminder notices
to the claimant that reports had not been filed for (a) the months of July and
August of 1985 and (b) the months of September, October, November and December
of 1985 and for the month of January 1986. No testimony revealed when either of
these notices was sent to the claimant. At some time, the reports for these
months were apparently filed. No such reminder notice was apparently sent to
claimant by the State fire Marshal with reference to the reports not being on
file for February, March, April and May 1986. No such reminder notice was
required to be given.
By letter dated August 5, 1986, the State Treasurer had advised the claimant that
it had not been certified; that it was not too late to get certified; that a
final determination would be made about August 20, 1986. Under the statute
[W.Va. Code §33-3-14d (b)1,
it was then too late, for the first day of
August had passed and the certification had been made, Nevertheless, the
claimant’s Captain Everett Adkins had made a trip to Charleston and hand delivered
the missing reports to the office of the State Fire Marshal on August 20, 1986.
He testified that the reports then prepared and filed were not prepared from
any file copies of reports which had been previously prepared for the missing
months.
14 REPORTS STATE
COURT OF CLAIMS [W.Va.
It is the burden of a claimant to present its case. No witness testified that
the reports for the missing months had been timely filed or mailed by the
claimant. A claimant’s exhibit, computer prepared in the State Fire Marshals
office, for the period January 1, 1986 to September 30, 1986, showed incidents
reported by the claimant fore each of the first six months of 1986; but of
course the reports filed late by claimant, on August 20, 1986, would be
reflected in this exhibit, so it does not establish that the reports for the
missing months were timely filed.
Although the Court is aware of the fine service which is provided by volunteer
fire departments, such as this claimant, the Court must, upon the testimony and
exhibits presented and upon the applicable statutes, deny this claim.
Claim disallowed.
OPINION ISSUED JULY10, 1987
W. MARSHALL PETTY AND PATRICIA A. PETTY
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-393)
Claimant W. Marshall Petty appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimants seek an award of $300.00 for damage to the lawn of their residence by
respondent s heavy snow removal equipment on February 7, 1985. Claimants
residence is located at the end of a street in the Dunbar area of Union
District in Kanawha County, the street being a part of the State highway
system.
Upon his arrival at his residence from work on the day in question, claimant W.
Marshall Petty had observed that the street, ending at his residence had been
plowed by snow removal equipment and had also observed large tire tracks in the
snow on the lawn of his residence. Later, when the snow had melted, deep tire
track damage to the lawn was apparent as shown in photographs placed in
evidence. The claimants had paid $300.00 to a landscaping firm for its repair
and restoration of the damaged area.
Paul Little, who was foreman of respondent s North Charleston facility,
testified that records showed that snow removal equipment was operating in the
area of claimants residence on the stated day.
W.Va.] REPORTS
STATE COURT OF CLAIMS 15
There was no witness to the actual plowing of the street. The tire tracks
portrayed in the photographs were obviously those of heavy equipment and not
those of a truck or passenger vehicle. The Court concludes that the
respondent’s snow removal equipment did the damage to the claimants lawn and
makes an award in the amount of $300.00.
Award of $300.00.
OPINION ISSUED JULY10, 1987
VAN VOLUNTEER FIRE DEPARTMENT
VS.
STATE FIRE MARSHAL
(CC-86-353)
Francis M. Curnutte, III, Attorney at Law, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
GRACEY, JUDGE:
Claimants applied for revenue allocated from the Municipal Policemen’s and
Firemen’s Pension and Relief Funds (W.Va. Code §33-3-14d) in April 1986. It is
alleged that the application and the necessary fire reports were not timely
received by the State Fire Marshal. Claimant was not certified to the Office of
the State Treasurer. The claimant seeks $4,575.93, the amount of funds which it
would have received had it been properly certified.
Walter Smittle III, the State Fire Marshal, testified that the Van Volunteer
Fire Department was not certified to receive the funds mandated by W.Va. Code
Chapter 33. He stated that the Van Volunteer Fire Department failed to supply
his office with the necessary information required by W.Va. Code §8-15-8a. The
State Fire Marshal’s office sent a duplicate application to claimant on June
12, 1986. His office also sent statements indicating that the fire reports were
missing in October, 1985 and in February, 1986. The reports for August, 1985
and April and May, 1986 were never received by the State Fire Marshal’s office.
Robert J. Jarrell, Assistant Chief of the Van Volunteer Fire Department,
testified that he is familiar with the day-to-day activities of the claimant.
He stated that he has had problems mailing documents to the State Fire
Marshal’s office which the Fire Marshal’s office claims it has not received. He
has personal knowledge concerning the application in question as he saw the
receipt from the postal system indicating that the application was sent on
April 23, 1986. He stated that a second application was completed and mailed,
but he has no record of the
16 REPORTS
STATE COURT OF CLAIMS [W.Va.
mailing. There are no records of the
filings of the August, 1985, or April and May, 1986 fire reports.
James Mark Long, recording secretary for the Van Volunteer Fire Department,
testified that he fills out the fire reports. He stated that he filled out an
application for 1986 and sent it by mail to the State Fire Marshal. After
notice was received from the Fire Marshal, he completed a second application
and mailed it. However, he has not record of when he mailed the second
application. He stated, too, that he completed and sent the fire reports which
respondent alleges it did not receive. After notice was received, he mailed the
fire reports a second time. Mr. Long has been recording secretary for six
years. This is the first instance, to his knowledge, since he has been the
recording secretary, that the funds were not received by the claimant.
It is the opinion of the Court that it cannot, in good conscience, deny these
funds to the claimant. The claimant has shown that it made a good faith effort
to comply with the regulations of W.Va. Code §8-15-8a. The Court, therefore,
makes an award to the claimant in the amount of $4,575.93.
Award of $4,575.93.
OPINiON ISSUED JULY21, 1987
ESTA M. ADKINS, ADMINISTRATRIX OF THE
ESTATE OF CECIL ADKINS, JR., DECEASED
VS.
DEPARTMENT OF HIGHWAYS
(CC-77- 18)
Robert Losey, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
GRACEY, JUDGE:
Claimants Esta M. Adkins brought this action as Administratrix of the Estate of
Cecil Adkins, Jr., her husband, who dies in a single-vehicle accident on August
26, 1976.
The accident in which claimant s decedent died occurred on Mud River Road, also
known as Little Seven Mile Road. The road is designated as Local Service Route
19 and is located near Huntington, in Cabell County. The vehicle involved in
the incident was a 1968 Plymouth automobile owned by claimant and/or the
decedent. The evidence is not clear as to whether Cecil Adkins, Jr. or the
other individual in the vehicle, Ernest Ball, was operating the vehicle. The
W.Va.j REPORTS
STATE COURT OF CLAIMS 17
vehicle went over an embankment, whereupon it struck an exposed gas line owned
by Cumberland Gas Company. The gas line apparently ruptured and ignited with
the flames engulfing the interior of the vehicle. Cecil Adkins, Jr. and Ernest
Ball were burned beyond recognition and died.
Claimant alleges that the failure of respondent to properly mark this section
of Mud River Road, where there was no berm and where an embankment was at the
edge of the paved portion of the road, constituted negligence which was the
proximate cause of the death of claimants decedent. Claimant alleges damages in
the amount of $500,000.00.
The evidence revealed the following facts. Claimant’s decedent, Cecil Adkins,
Jr., and a coworker, Ernest Ball, were employees of Tn-State Materials
Corporation. Mr. Adkins was the pilot of a tugboat for the corporation. On the
day of this accident, Adkins left his home in Huntington, West Virginia, at
approximately 5:20 a.m. to go to work in Lesage, West Virginia. I-Ic picked up
Ernest Ball, and the two of them intended to pick up another coworker, Sam
Chapman, who lived on Mud River Road approximately one mile from the site of
the accident. Claimant was unfamiliar with this road having last been in the
area approximately five or six years previous to 1976. At the scene of the
accident there was a section of road which was subject to slide conditions. The
ground adjacent to the edge of the pavement had continuously broken away until
the edge of the pavement was at the break of the slide area. There was no berm.
Weeds had grown up at the edge of the pavement and extended above the pavement
approximately eighteen inches. In an attempt to remedy the slide problem, the
respondent had widened the road on the left side of the orad by grading along a
hillside. This widened portion of the road was also paved. The stretch of road
before this particular area was curved and on an upward grade. There were three
signs on the stretch of road previous to the side area. One of the signs was a
“ONE LANE ROAD AHEAD” sign, one was a reverse curve sign, and one was a 45
mile-per-hour speed limit sign. There was also a small barricade sign before
the curve in which the slide was located. There is no evidence as to actual
barricade signs or warning paddles at the point of the slide area. A charred
paddle was found beneath the vehicle, but it is now known if the paddle was in
place at the time of the incident. The Adkins vehicle, for reasons unknown,
went off the paved portion of road at the slide area. The gas line which was
exposed was struck by the vehicle and ruptured, resulting in the death of the
two men.
On the date of the accident, respondent’s employee, Ralph Aills, the sign shop
supervisor for District Two, was assigned the task of reviewing the signs on
Local Service Route 19 at the accident scene. He filed a report which is in
evidence in this claim. His report contained a diagram of the signs and the
relationship of the signs with the accident site. The first three signs were
fairly close together. The first sign is the “One Lane Road Ahead” sign; next is
the reverse curve sign; then a 45 mile-per-hour speed limit sign. Approximately
226 feet further towards the accident scene was a small orange and white
barricade paddle located at the beginning of the curve and approximately 300 to
500 feet from the slide area. The paved portion of road was 20 to 22 feet wide
in the curve where the slide was located. As described previously, the road has
been carved out of the hillside on the left side.
18 REPORTS STATE
COURT OF CLAIMS [W.Va.
It is the opinion of the Court that the respondent fulfilled its duty to
maintain the road in the area of the slide by widening the road for the
travelling public. There was also evidence that the respondent has placed
barricade paddles at the side area although the evidence is unclear as to
whether a barricade paddle was present at the time of this accident.
The reason the driver of the vehicle proceed off of the travel portion of the
road is unknown. This Court will not resort to speculation. See: Arthur vs.
Dept. of Mental Health, 12 Ct.Cl. 124 (1978), and Charles vs. Dept. of
Highways, CC-83-356, (Dec. 12, 1986).
The Court is not unmindful of the tragedy which occurred, nor of the inherent
impulse for compassion. However, the Court, for the reasons stated above, is of
the opinion to, and does, deny this claim.
Claim disallowed.
OPINION ISSUED JULY21, 1987
RUTH ANN COOPER
VS.
DEPARTMENT OF HIGHWAYS
(CC-87- 14)
Claimant appeared in person.
Nancy I. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On December 22, 1986, at approximately 8:00 p.m., claimant was operating her
1986 Buick Regal on Route 3, in Boone County. The vehicle was approximately 10
miles from Racine when it ran through a pothole damaging the rim, hubcap, and
tire in the amount $210.81.
Claimant testified that Route 3 is a two-land, blacktop road. It was dark and
dry at the time of this incident. She stated that she was operating her
headlights. There is a berm of perhaps one and one-half feet at the location of
this incident. Mrs. Cooper testified that there was a series of potholes near
the berm on the right side of the road, which claimant dodged prior to the
vehicle striking the pothole which damaged her automobile. She stated that the
pothole was 15-20 inches wide, 25 inches in length, and 8-9 inches deep. She
does not travel this route frequently and was unaware of how long this
particular hole had been in existence.
W.Va.J REPORTS
STATE COURT OF CLAIMS 19
This Court has repeatedly held that respondent is neither an insurer nor a
guarantor
of the safety of travellers on its highways. However, the respondent does have
a duty of using
reasonable care and diligence in the maintenance of its highways. In the case
of a heavily
travelled, major highway in this State, the Court has held respondent liable
for failure to repair
a pothole of this size as it camlot have developed overnight. See: Stone vs.
Dept. of Highways,
12 Ct.Cl. 259 (1979) and Bolyard vs. Dept. of Highways, CC-86-195
(Opinion issued December
12, 1986). The pothole is of such dimensions that the respondent had
constructive notice. The
Court, therefore, makes an award to claimants in the amount of $210.81.
Award of $210.81.
OPINION ISSUED A UGUST 10, 1987
ANAWALT WESLEYAN CHURCH,
PASTOR JAMES BARNARD
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-401)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
This action was filed to recover the cost of repair ($2,810.10) to a rented
vehicle, the damage to which occurred as the result of an accident on December
7, 1985. Claimant failed to name the respondent agency when the action was
filed. The Court, upon its own motion, amended the style to include the
Department of Highways as the proper party respondent.
The Reverend James Barnard, incoming pastor of the Anawalt Wesleyan Church, was
moving to Anawalt, McDowell Count, from Cincinnati, Ohio, at the time of the
accident. A truck was rented from Budget Rent-A-Truck, Budget Rent-A-Car. He
assumes that the contract for this transaction was in the name of Kim E.
Dewhurst, his brother-in-law. Mr. Dewhurst was the driver of the truck, but he
was not present at the hearing.
Mr. Barnard, driving his own vehicle, and Mr. Dewhurst, driving the rental
truck, were travelling in a northwest direction on Jenkin Jones Road, at
approximately 11:30p.m. It was dark. Mr. Barnard was proceeding ahead of the
rental truck at a distance of approximately 150 feet. The highway is a blacktop
road and is approximately a lane and a half in width. Mr. Barnard drove his
vehicle under a railroad underpass without any problems. However, the truck
20 REPORTS STATE
COURT OF CLAIMS [W.Va.
was unable to clear the trestle, and damage occurred to the truck. Negligence
is alleged on the part of respondent for its failure to place a warning sign as
to the height of the underpass at this location.
Mr. Charles Raymond Lewis II, Planning and Research Engineer for respondent,
testified that part of his duties is posting signs on the various State roads.
He stated that it is not mandatory that clearance signs be posted on every
road. He further stated that signs are posted on roads such as Jenkin Jones
Road, which is McDowell County Route 8, when a specific complaint is received.
He has no knowledge of any requests to post this particular underpass. He is
unaware of any requirement that all underpasses under a particular height be
mandatorily posted.
Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947) determined
that the failure of the State Road Commissioner to provide guardrails, place
road markers or danger signals, and paint center lines on paved highways does
not provide a moral obligation on the State to compensate a person injured on
such highway. For this reason, the Court is of the opinion to, and does, deny
the claim.
Claim disallowed.
OPINION ISSUED AUGUST10, 1987
RONDUS JIVIDEN
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-452)
Claimant’s daughter, Monica Jividen, appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On November 9, 1986, the claimant’s daughter, Monica Jividen, was driving the
claimant’s 1981 Chevette on State Route 35 near Shawnee Estates, Putnam
County, when the vehicle struck water standing on the highway. The vehicle
overturned and sustained damage. Claimant seeks $2,338,87. The daughter of the
claimant originally filed the claim in her name. However, the record reflects
that the father, Rondus Jividen, was the titled owner of the vehicle. The
Court, upon the motion of Ms. Jividen, has amended the style of the claim to
name Rondus Jividen as the proper party claimant.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 21
Claimant’s daughter testified that this incident occurred at approximately 5:00
am. She was en route from her home in Winfield to her job in Charleston. The
roads were wet as it had been raining earlier, and it was dark. The highway in
question is blacktop. She had travelled this route daily for a year prior to
this incident. She had not observed “real high” water at this location prior
tot he accident. She stated that the water covered the entire width of the road
and was between five and ten feet long.
Donald Adkins, General Foreman for respondent in Putnam County, testified that
he received word of this incident at approximately 8:00 a.m. on the day it
occurred. He stated that on the day before this incident, to his knowledge, the
road was clear. The first notification he had of a problem at his location was
on the day of this incident.
Michael D. Stone, County Maintenance Superintendent for respondent in Putnam
County, testified that he did not receive any complaints of high water on Route
35 in Winfield prior to this incident.
The State neither insures nor guarantees the safety of motorists travelling on
its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947).
For the respondent to be found liable for road defects of this type, the
claimant must prove that the respondent had actual or constructive notice of
the defect. Davis Auto Parts vs. Dept. of Highways, 12 Ct.Cl. 31(1977).
The claimant did not meet the burden of proof; therefore, this claim must be
denied.
Claim disallowed.
OPINION ISSUED A UGUST 10, 1987
SURSHEL C. LACY
VS.
DEPARTMENT OF FINANCE & ADMINISTRATION
(CC-87-1 11)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for the respondent.
PER CURIAM:
On November 2, 1985, claimant attended a public auction of the West
Virginia Department of Finance and Administration, Surplus Property Division.
He bid on a 1976 GMC pickup truck. His bid was accepted, and he paid $725.00
for the vehicle. He drove the truck to his home in Ravenswood on November 13,
1985. subsequently, he determined that the truck had
22 REPORTS STATE
COURT OF CLAIMS [W.Va.
a cracked motor block which he alleges was a defect in the vehicle at the time
of purchase. He seeks
$1,151.29.
Claimant testified that he is an automobile mechanic. He did not have the opportunity to inspect this
vehicle before he bought it.
He alleges that respondent attempted to cover the crack in the motor block
with epoxy. He used the interstate on the trip back to Ravenswood, and did not experience any problems with the truck. On that day. he changed the oil. In March of 1986 he drove the
truck to and from a motor service garage. Other than these two instances, he has moved the truck only to cut the
grass. He stated that he did not put the epoxy on the manifold of the truck.
Mr. Roy Headley, Shop Foreman for Motor Service Garage in Ravenswood, testified
that he has been a mechanic for twenty-three years. He inspected claimant’s
vehicle on March 24, 1986 and observed that someone had use epoxy to seal a
crack in the motor block. It appeared to Mr. Headley that the epoxy had been
placed there to cover up a crack in the block. He estimated that the cost of
putting a rebuilt motor in the GMC truck is $976.80. He was unable to state
whether the epoxy substance could have been placed on the motor block for a
period of more than four months or five months.
George Afflerbach, Director of the Department of Finance and Administration’s
Surplus Property Division, testified that during the week prior to an auction,
the public is given the opportunity to inspect everything that is for sale. He
stated that his staff does not repair vehicles unless somebody demonstrates an
interest in a particular vehicle and it would help to sell the vehicle. His
agency did not make any repairs to the vehicle in question, such as placing
epoxy upon the block.
Anthony Nichols, mechanic with the Surplus Property Agency, testified that it
is rare for him to do an inspection or repair of the vehicles for the auctions.
He estimates that approximately 800 vehicles a year come through Surplus
Property for sale. To his knowledge, he has not repaired any cracked blocks in
engines on vehicles placed for sale by Surplus Property.
The Court, in good conscience, caimot deny this claim, although there has been
no evidence showing that respondent was aware of the crack in the manifold of
the vehicle which it sold, a crack was present at the time of sale. To deny
this claim, the Court would permit unjust enrichment. The Court is of the
opinion to, and hereby, awards the claimant the amount paid for the vehicle,
$725.00.
Award of $725.00.
W.Va.J REPORTS
STATE COURT OF CLAIMS 23
OPINION ISSUED AUGUST10, 1987
APRIL LYNN MARTIN
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-304)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On February 18, 1986, between 7:00 a.m. and 8:00 a.m., the claimant was
operating her 1985 Dodge Omni on Route 60 near Amandaville in St.
Albans, West Virginia, when her vehicle struck a pothole. Claimant seeks
$134.58, which amount represents the damage to the vehicle. The Court, on its
own motion, amended the style of the claim to designate the Department of
Highways as the proper party respondent.
The claimant testified that she was travelling to work at approximately 45 miles
per hour. She cannot recall the weather conditiom at the time of this incident,
but does remember that it was not raining. The highway is a four-lane road. She
was initially proceeding in the driving lane, but due to the presence of
potholes, she drove her vehicle into the left, or passing, lane. It was a this
point that her vehicle struck a pothole located in the alternate lane. She did
not see the hole before her vehicle struck it. She travels this route daily,
but had not observed this hold on previous occasions.
The law of West Virginia is well established that the State is neither an
insurer nor a guarantor of the safety of persons travelling on its highways. Adkins
vs. Sims, 130 W.Va. 645, 45 S.E.2d 81(1947); Parsons vs. State Road
Comm’n., 8 Ct.Cl. 35 (1969). For the respondent to be found liable for
damages caused by road defects of this type, the claimant must prove that the
respondent had actual or constructive notice of the defect. Davis Auto Parts
vs. Dept. of Highways, 12 Ct. Cl. 31(1977). Since the claimant brought
forth no evidence to that effect and did not meet the burden of proof, this
claim is denied.
Claim disallowed.
24 REPORTS STATE
COURT OF CLAIMS [W.Va.
OPINION ISSUED AUGUST10, 1987
LINDA ELAINE MOORE
VS
DEPARTMENT OF HIGHWAYS
(CC-86-450)
Claimant appeared in person.
Nancy I. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant seeks an award of $6,000.00 for damage to her property located at Lick
Creek, Boone County, in the vicinity of Danville, West Virginia. Claimant
alleges that respondent’s negligent installation of a bridge at that location
resulted in erosion to her property.
Claimant testified that she owns approximately one acre of property with 45-50
feet of frontage on Lick Creek. A bridge crosses Lick Creek in front of
claimant’s property. Lick Creek flows between claimant’s property and Lick
Creek Road. Claimant stated that there is an area on her property of
approximately 46 feet in length which has been eroded by the Lick Creek. This
eroded area has cut back into her property approximately four feet. She
attributed the erosion to the lack of an adequate retaining wall adjacent to
the bridge abutment.
Claimant stated that Lick Creek Road is a two-lane, blacktop road. The bridge
is one lane and is seven or eight feet long and is made of concrete with steel
siding and rails. There are very large stones placed along the bank adjacent to
the abutment.
Claimant testified that in November of 1986, when the area had very high water
due to torrential rains, the water flowed across the bridge as the space
beneath the bridge was not adequate to carry the water. Prior to that time she
had not experienced erosion on her property. She stated that debris, limbs and
rocks gather under the bridge. The creek is normally approximately ten inches
deep and three feet wide.
Claimant stated that the bridge was in the same location in December of 1984 as
it is today. She also confirmed the fact that the creek bank has not been
altered since December, 1984. She agreed that the eroded section is located on
her property and not on respondent’s rightof-way. She stated that she entered
the creek, took the stone, placed the stone against the bank, and then poured
cement on top of this stone. She did this in an attempt to alleviate the
erosion to her property.
W.Va.J REPORTS
STATE COURT OF CLAIMS 25
Dale Edward Blount, Maintenance Assistant in Boone County for respondent,
testified that he and David Starcher visited claimant’s property on November
18, 1986, at her request. He took photographs and observed the erosion on the
bank of claimant’s property. He returned later in December with equipment and
attempted to clean out debris from under the bridge. However, he was unable to
do so due to lack of access to the creek.
He reviewed the bridge inspection reports for the years 1977, 1980, 1983 and
1986. From these reports, he discerned that the house was constructed after the
bridge. The 1986 report features the house. He stated that he observed no
damage to the bridge from water. He also stated that at the time he inspected
claimant’s property and took the photographs, the lawn went all the way to the
creek bank.
Joseph Thomas Deneault, Assistant District Maintenance Engineer for District 1
for respondent, testified that he is familiar with the bridge which is the
subject to this action. He stated that the alignment of the creek is the same
today as it was in 1976 when he first observed it. However, he stated that the
configuration of the bottom and sides of the creek have changed. In his
professional opinion, this bridge is in the correct alignment for the creek. He
stated that the stream alignment in October of 1977, when the bridge was inspected,
is the same as it is today. He noted that to his knowledge, since 1976, the
respondent has done nothing to alter the stream bank or the channel. It is his
opinion that the preparation of the property in advance of construction of the
house led to the erosion of the bank of claimant’s property.
After careful consideration of all of the evidence presented, the Court
concludes that the damage to claimant’s property did not result from lack of
maintenance of the bridge. It is apparent that other factors, including
excessive rainfall and the preparation of claimant s property for construction,
contributed to the water problems. As there was no negligence established on
the part of the respondent, the Court must disallow the claim.
Claim disallowed.
OPINION ISSUED AUGUST10, 1987
JOHN R. KUSHNER & SHERYL KUSHNER
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-3 19)
Claimants appeared in person.
Nancy I. Aliff, Attorney at Law, for respondent.
26 REPORTS STATE
COURT OF CLAIMS [W.Va.
PER CURIAM:
On July 20, 1986, at approximately 7:45 p.m., claimant Sheryl Kushner
was operating her 1982 Cutlass Cierra on Route 21/38 about 1.4 miles from the
Goldtown Exit on Route 21.38 when her vehicle became stuck in gravel and
incurred damage in the amount of $177.75. Claimant Sheryl Kushner
originally filed the claim in her own name against the West Virginia State
Department of Highways. However, the record reflects that the vehicle is titled
in the name of both John R. Kushner and Sheryl Kushner. The Court, upon its own
motion, amended the style to include John R. Kushner as a party claimant and
the Department of Highways as the proper respondent.
Claimant Sheryl Kushner testified that she was alone in the vehicle at the time
of the incident. As she was negotiating the turn onto Route 21/38, the vehicle
sunk into the gravel on the road. She was travelling at approximately 20 miles
per hour. The gravel extended across the blacktop road which is about 30 feet
wide. She stated that heavy equipment had been hauled through his area. Her
entire vehicle went into the gravel, and the impact stopped its movement. She
contacted respondent’s office at Ripley and was informed that respondent had
been using Route 21/38 to haul heavy equipment to a dam site, She had driven in
this area two weeks previous to this incident, but had not experienced any
problems.
Mr. Jackie L. Rhodes, son-in-law of the claimants, testified that he travelled
the area on the Friday before claimant’s Sunday accident. At that time, he
observed respondent’s crews working. There were no markings, barricades or
identification of the holes. On Sunday evening, the condition of the roadway
was essentially the same, but the edges of the road had been graded.
Mr. Dale Casto, respondent’s County Maintenance Supervisor for Jackson County,
testified that a federal dam was being erected in this location and suppliers
of material for that project were using the road in question. Route 21/38 was
affected in that its base was lost in a number of spots. The respondent was in
this area doing repairs on the road on the 15th and 16th. He was not aware of
any complaints until Mr. Rhodes informed him of this incident.
It is the opinion of the Court that respondent was negligent in failing to warn
the travelling public of a hazardous condition. See: Smith vs. Dept. of
Highways, CC-85-320 (April 30, 1986). The Court therefore makes an award to
claimant in the amount of $177.75.
Award of $177.75.
OPINION ISSUED AUGUST 10, 1987
WEST VIRGINIA SAFETY COUNCIL, INC.
W.Va.j REPORTS STATE
COURT OF CLAIMS 27
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-50)
John F. Bennett, Representative, appeared for claimant.
Nancy I. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant, by purchase orders dated 12/18/84 and 5/13 85, agreed to
provide respondent with materials for the periods of time of January 14, 1985 - March 15, 1985 and May 1, 1985 - December
30, 1985. Included in these materialize were three training films. These films
were not returned to claimant, and claimant now seeks $300.00 as reimbursement
for the tlms.
John F. Bennett, Executive Director of the West Virginia Safety Council, Inc.,
testified that films are not purchased under a training program, but only
leased for a one-year period of time. When the initial purchase of a training
program kit is made, the one-year lease is included. He submitted a copy of the
order form identifying the one-year lease and a page from an NSC catalogue
which clearly identifies it as a film lease. He stated that he had supplied
these documents to respondents employee, John Sinfield. Mr. Bennett agreed that
respondent paid $16,500.00 for the materialize and instruction which included a
postage or freight charge.
Respondent offered no evidence to dispute the fact that the films in question
were not returned to the claimant. Respondent failed to prove that the missing
films were to a part of the materials and instruction provided the agency and
need not be returned to the claimant. The Court therefore makes an award in the
amount of $300.00.
Award of $300.00.
OPINION iSSUED SEPTEMBER 24, 1987
FRANK B. BROWN
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-270)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
28 REPORTS STATE
COURT OF CLAIMS [W.Va.
PER CURIAM:
Claimants seeks compensation from the respondent for damages sustained in his
GS 750
Suzuki motorcycle after striking a
pothole.
The claimant lives in Jeffrey, West Virginia. At approximately 12:00 noon on
June 8, 1986, he was travelling west on Route 17 in the direction of his home.
The pavement was dry. There was a pothole extending approximately 12 inches
from the berm into the roadway. The hold was approximately a foot deep. The
claimant testified that he was travelling at approximately 50 miles an hour
when the motorcycle struck the pothole. The motorcycle sustained damages in the
amount of $761.19. The claimant further testified that he travelled the road
daily and knew of the existence of the hold. He had not notified respondent of
the present of the pothole.
The State is neither an insurer nor guarantor of the safety of persons
travelling on its highways. Adkins vs. Sims, 130 W.Va. 645, 46
S.E.2d 81(1947). For negligence of the respondent to be shown, proof of notice
of the defect in the road is required. Davis Auto Parts vs. Dept. of
Highways, 12 Ct.Cl. 31 (1977). Although the hole, by its size, is
indicative of the constructive notice of respondent, the Court is of the
opinion that the claimant, with his prior knowledge of the condition of the
road, was likewise negligent. He travelled the road daily and knew of the
existence and location of this pothole. Under the doctrine of comparative
negligence, the Court is of the opinion that the claimant’s negligence was
equal to or greater than the respondent’s and disallows the claim. See also Edwards
vs. Dept. of Highways, 14 Ct.Cl 354 (1983).
Claim disallowed.
OPINION ISSUED SEPTEMBER 24, 1987
CITY OF FAIRMONT
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-238)
No appearance by claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
W.Va.] REPORTS
STATE COURT OF CLAIMS 29
This claim was submitted for decision upon the pleadings and written
stipulation. The claimant and respondent agreed to the following facts: The
claimant is a municipal corporation furnishing fire protection as an essential
municipal service for which it may impose a fee. The claimant property adopted
Ordinance Numbers 583 and 636, which provided for the collection of a
fire protection service fee. City of Fairmont vs. Yaneros, Civil Action
No. C-260- M, held that Ordinance 583 was constitutional and
enforceable. The claimant has applied its aforesaid ordinances in a
constitutional manner. The respondent was a user of the essential municipal
service of fire protection and has failed to pay fees. The claimant properly
calculated the sum of $1,632.40 as the amount due on Account No. 35-31123440
for the period of July 1, 1984. to June 30, 1986. The parties hereto agree that
the amount stipulated as damages is a settlement of all losses arising from or
growing out of the matter as referred to in claimants Notice of Claim. Both
parties stipulate that the style of the claim should be amended to City of
Fairmont vs. Department of Highways.
In view of the foregoing, the Court makes an award in the amount stipulated.
Award of $1,632.40.
OPINION ISSUED SEPTEMBER 24, 1987
LONNIE EDWARD FARLEY
VS.
DEPARTMENT OF CORRECTIONS
(CC-77-6)
William L. Jacobs, Attorney at Law, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
WALLACE, JUDGE:
Claimant Lonnie Edward Farley brought this claim to recover damages for
personal injuries which he received in an accident which occurred when he was
being transported in a van operated by an employee of the respondent. Claimant
alleges that the accident occurred due to negligence on the part of the driver
of the vehicle.
The accident occurred on April 17, 1975, while claimant was being transported
from Moundsville, West Virginia to Huttonsville, West Virginia. At the time of
the accident, claimant was incarcerated at Huttonsville Correctional Facility.
He was shackled to another inmate, Albert Martin. There were three other
inmates in the vehicle and two guards, one of whom was operating the vehicle.
The vehicle was described as being a large capacity van with
30 REPORTS STATE
COURT OF CLAIMS [W.Va.
seating available for 12-16 passengers. The seats were arranged similar to a
mini-bus, i.e., seats for two individuals on each side with an aisle between
the seats. There was a screen partition between the front seat for the driver
and the ear seats. Claimant was sitting in the second seat on the left behind
the driver of the van. There was two inmates in the first seats. Claimant
testified that the driver was operating the van at a high rate of speed. He
stated that he requested the driver to slow down. He also indicated that he
viewed the speedometer by standing up and looking over two passengers and
through the screen partition. The speedometer reading was between 80 and 85
miles per hour. He indicated that the other inmates “were screaming to Mr.
Nestor trying to get him to slow down The accident occurred south of Philippi,
West Virginia, on W.Va. Route 250, at approximately 5:00 to 5:30 p.m., when a
vehicle approaching in the northbound lane veered into the southbound lane
striking first a pickup truck and then the van in which claimant was a
passenger. The van rolled over and ended up on its top. The claimant and other
passengers crawled through a window. Claimant was taken to the hospital for
treatment of a broken collarbone.
The testimony of the driver of the van, Robert C. Nestor, indicated that he was
operating the van at approximately 45-50 miles per hour when he observed a
station wagon approaching in the northbound lane ver suddenly into the
southbound lane. It struck a pickup truck and then hit the van which Mr. Nestor
stated he had driven partially onto the berm in an attempt to avoid a
collision.
The police report prepared by the investigating officer, Stephen B. Cross, was
placed into evidence by the parties. This report reveals that the northbound
vehicle, for unknown reasons, left the proper lane and struck both the pickup
truck and the van in which claimant was a passenger. No improper driving on the
part of respondent’s employee was noted in the report.
The Court, having reviewed the evidence, is of the opinion that the accident in
which claimant was injured was not proximately caused by any negligence on the
part of respondent’s employee. Therefore, the Court must deny this claim.
Claim disallowed.
OPINION ISSUED SEPTEMBER 24, 1987
MAXINE FRASER
VS.
DEPARTMENT OF HUMAN SERVICES
(CC-86-26 1)
JOE HOLLAND CHEVROLET, INC.
VS.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 31
DEPARTMENT OF HUMAN SERVICES
(CC-86-344)
Claimants appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAM:
Claims CC-86-261 and CC-86-344 were consolidated for hearing. During the
afternoon of June 26,
1986, a 1986 Chevrolet Nova owned by Joe
Holland Chevrolet was unloaded from a tractor-trailer at the car lot which is
in the vicinity of “E” Street, South Charleston, West Virginia. Before this
vehicle could be moved to another location on the lot, a minor, Warren Johnson,
attempted to steal the automobile. In his attempt at theft, the juvenile backed
the automobile across a public alley, whereupon the vehicle struck and damaged
a fence and garbage cans owned by Maxine Fraser, who resides at 200 - 9th Street. Claimant Joe Holland Chevrolet, Inc. seeks $579.97 for
damage to the automobile. Claimant Maxine Fraser weeks $584.40 for damage to
her property.
The Court, upon its own motion, amended the style of the claim to reflect the
proper party respondent, The Department of Fluman Services.
The claimants allege that there is liability on the part of the respondent
because the minor child, Warren Johnson, was a ward of the State at the time of
this accident. Mr. Terry Ballard, a social service worker for respondent,
confirmed that the juvenile has been under the agency’s custody since 1982. He
stated that the juvenile was actually in the custody of Braley and Thompson, a
private child care agency under contract with respondent. The juvenile was
assigned to a foster care home. Braley and Thompson was responsible for him
while he was in that facility.
In order for the Court to make awards in these cases, there must be a showing
of negligence on the part of the respondent. See: The Party Beer Store vs. Dept. of Welfare, 14 Ct.Cl. 407 (1983). As the record lacks evidence of
any such negligence, the Court denies the claims.
Claims disallowed.
OPINION ISSUED SEPTEMBER 24, 1987
EVERETT C. McPHERSON, ADMINISTRATOR
DBN
OF THE ESTATE OF LOSSIE J. McPHERSON, EXECUTOR
OF THE ESTATE OF CLYDE McPHERSON
VS.
32 REPORTS STATE
COURT OF CLAIMS [W.Va.
DEPARTMENT OF HIGHWAYS
(CC-80-229)
J. Robert Rogers, Attorney at Law, for claimant.
Andre Lopez, Attorney at Law, for respondent.
WALLACE, JUDGE:
This claim was originally filed in the name of Clyde McPherson, Administrator
of the Estate of Lossie J. McPherson, deceased, and Clyde McPherson, individually.
At the hearing, counsel for the claimant informed the Court that Clyde
McPherson is now deceased, and counsel requested that the style be amended to
reflect Everett C. McPherson as Administrator of the Estate of Clyde McPherson,
deceased and Everett C. McPherson as Administrator DBN of the Estate of Lossie
J. McPherson. The Court so amended the style of the claim.
The decedents were husband and wife. On June 4, 1978, Clyde and Lossie
McPherson had been visiting at the home of their son, Everett C. McPherson.
when they left their son s home at 3:00 to 3:30 p.m. to return to their home in
Nitro, West Virginia, they proceeded on Manilla Ridge Road, also known as State
Route 5, in Putnam County. Clyde McPherson was operating his 1978 Blazer and
Lossie McPherson was a passenger. The weather was clear and the road was dry.
the McPherson vehicle was being approached by an Oldsmobile in the opposite
lane which was operated by Stephen Lazear. The McPherson vehicle went onto the
berm and then dropped off an embankment, whereupon it rolled into pastureland.
Lossie J. McPherson died as a result of the accident. Clyde McPherson was
injured. He was taken by ambulance to Thomas Memorial Hospital where he
remained for four days. This claim is for the alleged damages in the amount of
$325,000.00.
Claimant alleges that this accident occurred due to the failure of respondent
to maintain the berm and shoulder area of Manilla Ridge Road in a proper
manner. Claimant asserts that the term consisted of fly ash material which was
unstable and gave way when the McPherson vehicle was driven onto the berm in an
attempt to provide room for the approaching vehicle to safety pass.
Testimony in the claim revealed that the paved portion of Manilla Ridge Road at
the point of this accident was approximately 15 feet in width. the berm was 18
to 20 inches in width and consisted of fly ash material and tar. There were
weeks and grass growing beside the berm area. A crop-off from the berm of
approximately 10 feet led to pastureland below.
The witnesses to the accident testified that the driver of the McPherson
vehicle appeared to drive the vehicle onto the berm and then the vehicle went
over the drop-off and rolled into the pastureland. The reason for the action
taken by the driver was not established through the testimony of the witnesses.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 33
The testimony also revealed that the respondent had not received any complaints
concerning problems that travelers of Manilla Ridge road may have had with the berm
at the location of the accident, which is the subject matter of this claim.
From all of the evidence presented to the Court in this claim, the Court is
unable to ascertain the reason for Clyde McPherson to drive his vehicle onto
the berm at the accident site. The paved portion of the road was wide enough
for two vehicles to pass. This Court has held that it will not resort to
speculation in determining liability of the respondent. The Court has also held
that a traveler on the State’s highways travels at his own risk and uses the
berm at his own risk.
See: Sweda vs. Dept. of Highways, 13 Ct.Cl,249 (1980); Hedrick vs.
Dept of Highways, 15 Ct. Cl. 288 (1985): and Cole vs. Dept. of Highways,
CC-82-292, Jan. 17, 1986.
The Court has been unable to determine negligence on the part of the respondent
in the maintenance of the berm on Manilla Ridge Road. Whether the berm gave way
or whether the driver of the vehicle drove off the berm has not been
established by the evidence herein.
Therefore, the Court finds in the claim that there was no apparent reason for
the McPherson vehicle to veer onto the berm of Manilla Ridge Road, In
accordance with prior decisions of this Court, the claim must be denied.
Claim disallowed.
OPINION ISSUED SEPTEMBER 24, 1987
FREDDIE J. MORRISON AND BARBARA J. MORRISON
VS.
DEPARTMENT OF HIGHWAYS
(CC- 86-301)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
This claim was originally styled solely in the name of Freddie J. Morrison. The
evidence revealed that the automobile was titled in the names of both Freddie
J. and Barbara J.
Morrison. The Court then, upon its own motion, amended the style of the claim
to include
Barbara J. Morrison as a proper party claimant and to amend the respondent to
Department of
Highways.
On June 23, 1986, at approximately 4:10 am., claimant Freddie Morrison, was
operating his 1984 Dodge Caravan on Interstate 64 to 35 miles per hour. The
road was being
34 REPORTS STATE
COURT OF CLAIMS [W.Va.
resurfaced. As he attempted to exit at Kenova, his automobile struck an
overturned sign. As a result, damage was sustained by the vehicle and claimants
seek compensation for same in the amount of $215.25.
Claimant Freddie Morrison testified that he was proceeding east on 1-64 and
leaving the Interstate at the Kenova exist. The weather conditions were “kind
of misty’. He stated that the exit was in disarray. He had travelled the same
route on the previous evening. At that time, the barrels, etc. were in place.
William A. Holland, project supervisor in the construction division with
respondent, testified that he was familiar with the project on 1-64 in the
vicinity of the Kenova exit. Eight miles of the roadway were being replaced and
blacktopped. The independent contractor for the respondent on the project was
East Kentucky Paving.
This Court has held previously that the respondent cannot be held liability for
the negligence, if any, of an independent contractor. See: Paul vs.
Department of Highways, 14 Ct.Cl. 479 (1983); Harper vs. Department of
Highways, 13 Ct.Cl. 274 (1980); Safeco Insurance Company vs. Department
of Highways, 9 Ct.Cl. 28 (1971). Accordingly, the Court disallows this
claim.
Claim disallowed.
OPINION ISSUED NOVEMBER 23, 1987
AIDES DISCOUNT STORE, INC.
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-244)
No appearance by claimant.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURJAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant seeks $694.01 for items furnished to respondent pursuant to a valid
purchase order. The respondent admits the validity and amount of the claim and
states that there were sufficient funds in respondent’s budget for the
appropriate fiscal year with which the claim
W.Va.j REPORTS
STATE COURT OF CLAIMS 35
could have been paid; however, the respondent was unable to make payment as the
State Auditor returned the transmittal to the respondent with the explanation
that the Treasury of the State of West Virginia lacked sufficient funds to
process the transmittal.
The Court has reviewed the petition and the Answer and finds the State agency
had sufficient funds within its appropriated budget to pay the claim and for
this reason, the claimant is entitled to an award from the respondent.
The Court has also determined that West Virginia Code Chapter 14, Article 3,
Section 1 provides that, where payment upon contracts with State agencies is
delayed for more than 90 days, six percent interest shall be awarded on
contracts for commodities and printing entered into under Chapter 5A, Article
3, Section 1. The interest rate allowed by the statute is six percent per annum
on any unpaid balance beginning on the 91st day after payment is due. The Court
finds that the calculation of the 90 days begins July 1, 1987 and shall
continue until the beginning of the Legislative Session in 1988, January 13,
1988.
In view of the foregoing, the Court makes an award in the amount sought, $694.01,
with interest calculated in the amount of $12.09
Award of $706.10.
OPINION ISSUED NOVEMBER 23, 1987
ALPHA THERAPEUTIC CORPORATION
VS.
DEPARTMENT OF HEALTH
(CC-87-3 15)
No appearance by claimant.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant seeks $4,195.80 for items furnished to respondent pursuant to a valid
purchase order. The respondent admits the validity and amount of the claim and
states that there were sufficient funds in respondent’s budget for the
appropriate fiscal year with which the claim could have been paid; however, the
respondent was unable to make payment as the State Auditor
36 REPORTS STATE
COURT OF CLAIMS [W.Va.
returned the transmittal to the respondent with the explanation that the
Treasury of the State of West Virginia lacked sufficient funds to process the
transmittal.
The Court has reviewed the petition and the Answer and finds the State agency
had sufficient funds within its appropriated budget to pay the claim and for
this reason, the claimant is entitled to an award from the respondent.
The Court has also determined that West Virginia Code Chapter 14, Article 3,
Section 1 provides that, where payment upon contracts with State agencies is
delayed for more than 90 days, six percent interest shall be awarded on
contracts for commodities and printing entered into under Chapter 5A, Article
3, Section 1. The interest rate allowed by the statute is six percent per annum
on any unpaid balance beginning on the 91st day after payment is due. The Court
finds that the calculation of the 90 days begins July 1, 1987, and shall
continue until the beginning of the Legislative Session in 1988, January 13,
1988.
In view of the foregoing, the Court makes an award in the amount sought,
$4,195.80, with interest calculated in the amount of $73.11.
Award of $4,268.91.
OPINION ISSUED NOVEMBER 23, 1987
HOPE GAS, INC.
VS.
DEPARTMENT OF HEALTH
(CC-87-250)
No appearance by claimant.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondents Answer.
Claimant seeks $10,571.89 for items furnished to respondent pursuant to a valid
purchase order. The respondent admits the validity and amount of the claim and
states that there were sufficient funds in respondent’s budget for the
appropriate fiscal year with which the claim could have been paid; however, the
respondent was unable to make payment as the State Auditor
W.Va.j REPORTS
STATE COURT OF CLAIMS 37
returned the transmittal to the respondent with the explanation that the
Treasury of the State of West Virginia lacked sufficient funds to process the
transmittal.
The Court has received the petition and the Answer and finds the State agency
had sufficient funds within its appropriated budget to pay the claim and for
this reason, the claimant is entitled to an award from the respondent.
The Court has also determined that West Virginia Code Chapter 14, Article 3,
Section 1 provides that, where payment upon contracts with State agencies is
delayed for more than 90 days, six percent interest shall be awarded on
contracts for commodities and printing entered into under Chapter 5A, Article
3, Section 1. The interest rate allowed by the statute is six percent per annum
on any unpaid balance beginning on the 91st day after payment is due. The Court
finds that the calculation of the 90 days begins July 1, 1987 and shall
continue until the beginning of the Legislative Session in 1988, January 13,
1988.
In view of the foregoing, the Court makes an award in the amount sought,
$10,571.89, with interest calculated in the amount of $184.21.
Award of $10,756. 10.
OPINION ISSUED NOVEMBER 25, 1987
OPAL M. BROWN AND JOHN BROWN
VS.
DEPARTMENT OF HIGHWAYS
(CC-82-279)
Herbert H. Henderson, Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant Opal M. Brown purchased approximately 15 acres of land with a house
and a barn on Turkey Camp Road, also known as Route 21/2, Wayne County, in
1973, for $14,000.00. The property lies on both sides of Turkey Camp Road which
runs along the base of a hill. She testifies that in 1979 there was a small
slip on her property on the south side of the hill. Prior to the first
landslide, the claimants had not experienced any problem with flooding. She
contact respondent repeatedly, but no efforts were made by respondent to
alleviate the problem. In 1979, respondent removed the small slip. This action
precipitated a second larger slip.
38 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claimant testified that she had signed an easement with respondent for the
placement of a drain on her bottom land. The drain was never placed. At the
time of the second slip, the water ran across the road and into her bottom
land. This area has become a “mud hole” when it rains now, according to
claimant Opal M. Brown.
The claimants used the acreage in question for a hay crop which they harvested
about two or three times during the summer and fall seasons. Due to the flow of
water onto the property, the hay crop does not grow as well as prior to the
water problems. Claimants allege a loss resulting from the poor hay crop.
Randy Fry, a registered engineer and the County Surveyor of Wayne County,
testified that he surveyed this property in September, 1982 and again in June,
1987. Claimants’ property lies on both sides of Turkey Camp Road. The land on
the northerly side of the road is higher in elevation than the road. The land
on the southerly side of the road is lower in elevation that the elevation of
the road. He assumed that the right-of-way was 30 feet to begin with, 15 feet
on each side of the center line. The center line had shifted the entire
right-of-way width, and the travel portion of the highway is still within the
original 30 feet. From his survey, he determined that 4/100 of an acre of
claimant’s land has been affected by the water problem.
Neighbors gave accounts of the work done by respondent. There was agreement
among the witnesses that respondent came in with equipment and scraped out the
slip in 1979. One individual testified that after the removal of the slip,
respondent did not shore it up. There was no evidence indicating that
respondent cause the first slip.
There was conflicting evidence concerning the worth of claimants’ property. One
neighbor stated that bottom land in Wayne Count is generally appraised at
$500.00 an acre. Another individual stated that property in this area sells for
$4,000.00 -
$5,000.00 per acre for bottom land. A
third individual testified that his 95 acres of property in the vicinity of
claimants’ property was appraised for $25,000.00.
Respondent’s witnesses included Charles 0. Adkins, a surveyor for respondent;
Ivan B. Browning, Assistant District Engineer in charge of maintenance with
respondent; and Gary Robert Cooper, a geotechnical engineer with respondent.
Mr. Adkins surveyed Local Service Route 21/2 in the vicinity of the claimants’
property. He stated that the right-of-way at that location is 30 feet. He
measured the distance between the edge of Turkey Camp Road through the bottom
land to Turkey Camp Creek. It is 122 1/2 feet to the water. The travel portion
of the roadway at the slide location is 14 feet. He stated that there is a
super elevation around the slip area. “It’s basically a little dip.” He agreed
that there is presently a slip at the location, and it is impeding the flow of
water and doing damage to the Browns’ property.
W.Va.] REPORTS
STATE COURT OF CLAIMS 39
Mr. Browning stated that he determined the right-of-way was 30 feet at the
location in question. He stated that Turkey Camp Road was taken into the system
in 1932. He examined the property in May, 1986, and the slide was not extending
onto the travel portion of Turkey Camp Road.
Mr. Cooper testified that he observed the slide which had occurred on Mrs.
Browns property in April, 1986, and in June, 1987. The slide along Turkey Camp
Road extended approximately 125 feet along the side of the road.
After examining all of the evidence submitted in the claim, the Court has
determined that claimants property is inn a slide-prone area. The measures
taken by respondent, in attempting to rectify the initial slide have resulted
in excess water flowing onto claimants property. The Court is of the opinion
that claimants are entitled to recover for the loss of use of their property
based upon the value of the land. The Court has reviewed the evidence with
respect to the appraisals rendered by the witnesses. The Court, therefore,
makes an award of $263.16 to the claimants.
Award of $263.16.
OPINION ISSUED NOVEMBER 25, 1987
EASTERN ASSOCIATES,
A LIMITED PARTNERSHIP
VS.
BOARD OF REGENTS
(CC-87- 156)
H. Thomas Corrie, Representative of Eastern Associates, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAM:
Claimant and respondent entered into a lease agreement on December 18, 1976 for
a building at 950 Kanawha Boulevard, East, in Charleston. Rent was
$5,728.00 monthly.
Subsequently, claimant and respondent entered into a second lease agreement
dated October 29,
1986. Claimant contends that the rent for the month December, 1986 was
proffered by respondent
under the terms of the 1976 agreement instead of the terms of the second lease
agreement.
Claimant seeks $6,314.00.
40 REPORTS STATE
COURT OF CLAIMS [W.Va.
H. Thomas Corrie, general partner of Eastern Associates, testified that
respondent paid only partial rent for the month of December, 1986. The amount
paid by respondent was $5,728.00, in accordance with the 1976 lease, rather
than $12,042.00, the amount of rent under the new lease. Claimant accepted the
$5,728.00 as a down payment or partial payment of the December 1986 rent only.
He stated that under the terms of the old lease, respondent rented two floors
of the building. The new lease gave respondent three floors. The terms of the
current lease also provided for renovations to the building to be performed by
the claimant. The premises were not ready for occupancy as the renovations were
not completed by December 1, 1986.
Dr. K. Edward Grose, Vice-Chancellor for Administrative Affairs for respondent,
testified that he was familiar with the agreement for the renovations to the
building leased by claimant to the respondent. He stated that the Commissioner
of Finance and Administration formalized the new lease, but Dr. Grose was
unaware of the date on the new lease as he was not required to sign it.
It is the opinion of the Court that the parties are bound by the provisions of
the lease in effect December 1, 1986, which provides the following:
‘This agreement supersedes and rescinds that
contract of lease dated December 18, 1976, made by
and between the parties hereto, relative to the subject
premises, said contract of lease being hereby
terminated as of midnight on the 30th day of
November, 1986.”
The new lease clearly provides that $12,042.00 is the amount of rent to be paid
by respondent for
December, 1986. Therefore, the Court makes an award to the claimant in the
amount of
$6,314.00 which is the difference in the amount that claimant actually received
from respondent
for the December rent and the amount recited in the new lease.
Award of $6,314.00.
OPINION ISSUED NOVEMBER 25, 1987
E.P. FOGLEMAN CONSTRUCTION CO., INC.
VS.
BOARD OF REGENTS
(CC-79- 190)
Morton I. Taber and Robert Wolpert, Attorneys at Law, for claimant.
W.Va.J REPORTS
STATE COURT OF CLAIMS 41
Robert D. Pollitt, Assistant Attorney General, for respondent.
GRACEY, JUDGE:
This claim arises out of construction of the Community Technical College
Building at West Virginia Institute of Technology at Montgomery, West Virginia.
The contract for construction of the building was dated April 15, 1970, the
parties thereto being E.P. Fogleman Construction Company and the West Virginia
Board of Regents, the respondent. Claimant was advised by ‘Notice to Proceed”
to commence construction on the project by June 8, 1970. The original
completion date of October 6, 1971, was extended by agreement of the parties to
January 6, 1972, by Final Change Order #6.
Edgar P. Fogleman, President of the E.P. Fogleman Construction Company,
testified that claimant was requested to perform work not specified in the
original contract, specifications and plans. Mr. Fogleman stated that the
figures contained in Change Order No. 1 do not correspond to those he submitted
to the architect, Henry Elden and Associates, and that his signature on them
was obtained without his knowledge that the figures did not agree. He also
testified that flaws in the original design required claimant to perform extra
work not contained on any of the Change Orders which were submitted to the
architect but for which no approval was obtained. The architect also made
requests for other work which was performed by claimant but for which claimant
has not been paid. There were negotiations between the parties on a list of
several items which the architect requested be completed but the parties were
unable to agree upon a price for these items. Some of the items were completed
by claimant and others were not.
Claimant also contends that respondent submitted a series of punch lists of
items to be completed on the project. These lists were tendered to the claimant
in November of 1971. Claimant alleges that all, or substantially all, items
covered by the contract or by Change Orders Nos. 1-5 were fulfilled.
Respondent, however, has retained $40,000.00 which amount represents the
balance due on the contract and Change Orders. Claimant is seeking the amount
retained and compensation in the amount of $40,000.00 for extra work which
claimant contends was performed at the architect’s request but for which claimant
has not been paid.
Respondent contends that a Correction and Completion Contract had to be entered
into with another contractor for completion of the building to be constructed
by claimant. The total amount of this contract was $64,900.00. Several of the
items contained in the contract pertained to correcting moisture problems from
the outside which was damaging the interior finishing and correcting problems
of pooling water and blistering on the roof. Claimant was responsible for
correcting any problems at cost under the terms of the original contract.
Furthermore, claimant has not supplied the necessary unconditional release of
mechanics’ liens for the subcontractors and, therefore, respondent is justified
in suspending final payment under the terms of the contract.
42 REPORTS STATE
COURT OF CLAIMS [W.Va.
Respondent also contends that the prices for work provided for under Change
Order Number 1 were agreed to by the contractor as evidenced by Mr. Fogleman’s
signature on the document. Furthermore, respondent alleges that the contractor
was only authorized to perform
extra work which was approved under the procedures outlined in the general
terms and conditions of the contract. The specifications under General
Conditions Number 17 state, “No changes in the work covered by the approved
Contract Documents shall be made without having prior written approval of the
Owner The specifications under General Conditions Number 18 provides,
and no claims for any extra work or materials shall be allowed unless the work
is ordered in writing by the Owner or its Architect/Engineer, acting officially
for the Owner, and the price is stated in such order.”
Several specific itemized charges claimed by the claimant were challenged by
the respondent. Among these were 6% interest on late payments for missing the
schedule periodic payment dates; interest charges of $2,375.73 on a judgment
against the claimant by a subcontractor, Dougherty Company; the amount of a
judgment for $4,305.00 for extra work performed by the subcontractor;
interest of $3,311.25 on the $6,000.00 retained by the claimant from the
subcontractor; and $17,069.48 for insurance, utilities and overhead during the
period of the contract extension from October 6, 1971 until January 6, 1972.
The original contract provided that the contractor would incur these costs.
Subsequent Change Orders allowing the extension of time did not contain a
provision that the respondent would be responsible for these costs during the
extended period for the completion of the contract. Claimant asserts it is due
these amounts under the provisions of General Conditions Number 17 of the
original contract.
After examining all of the evidence, the Court is of the opinion that the
claimant is not entitled to any compensation for extra work performed beyond
what was required by the terms of the contract. The terms are quite specific
concerning the procedures to be followed for the execution of agreements for
the performance of extra work on the project. The exhibits claimant submits, as
evidence that extra work was performed and compensation requested for that
extra work, are all dated substantially after the extended completion date of
the project.
The Court is of the opinion that the claimant is entitled to $40,000.00
retained as final payment due claimant on the original contract and change
orders reduce by $10,000.00 which the Court calculates as that portion of the
Correction and Completion Contract for repairing interior damage due to
moisture and repairing the blistering on the roof. There shall be no interest
due the claimant on the award of $30,000.00 as the respondent properly
suspended payment of the retainage until all potential claims of the
subcontractors against the claimant were paid, discharged, or waived.
Award of $30,000.00.
Judge Hanlon did not participate in the hearing or decision of this case.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 43
OPINION ISSUED NOVEMBER 25, 1987
PATRICIA and ROGER LIMING
VS.
DEPARTMENT OF HIGHWAYS
(CC-81-424)
James H. Coleman, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
WALLACE, JUDGE:
Claimants, Roger and Patricia Liming, brought this action to recover medical
expenses, loss of work, damages to a vehicle and loss of consortium, all of
which resulted when claimant Patricia Liming was injured in a vehicular
accident on November 24, 1979. On that date claimant Patricia Liming was
proceeding in a westerly direction on U.S. Route 119, also known as W.Va. Route
10 or Logan Boulevard. She was driving a 1980 Mercury Capri. As she passed a
truck, she attempted to return to the “slow” lane when her vehicle struck a
manhole cover which was standing upright in a perpendicular maimer to the
manhole itself. The vehicle struck the manhole cover and flipped over onto its
top whereupon Patricia Liming was injured and the vehicle was totalled.
Claimants allege damages in the amount of $54,000.00
Counsel stipulated that there was negligence in the maintenance of the manhole.
The only question for the Court is the determination of responsibility for the
maintenance of the manhole and the manhole cover. Claimant contends that W.Va.
Route 10 is a State maintained four-lane highway and, therefore, the respondent
is responsible for the condition of the highways. Respondent contends that the
manhole and its cover are the property of the City of Logan; therefore, any
negligence with respect to the manhole is the responsibility of the City of
Logan. The respondent maintains that it is not liable to claimants for injuries
received resulting from the negligent maintenance of the manhole or its cover.
The Court, having considered the record and attendant exhibits, is of the
opinion that the respondent is liable for primary negligence in this claim. The
highway in question is a four-land, concrete highway. The manhole is located in
the middle of the two westbound lanes. The evidence revealed that the manhole
cover was defective and that the hazardous condition was known to the
respondent. The respondent failed to take measures to warn the travelling
public of this hazardous defect on a State maintained highway. The respondent
also failed to take corrective action; or, in the alternative, to require the
City of Logan to take corrective action to alleviate the defect on the State
maintained highway.
44 REPORTS STATh
COURT OF CLAIMS [W.Va.
The Court is also of the opinion that claimant Patricia Liming was negligent in
her operation of the vehicle as she failed to observe the manhole cover in a
timely manner to avoid striking it. Therefore, the Court will apply the
doctrine of comparative negligence and assess 10% of the negligence to her.
As a result of the accident, claimant Patricia Liming suffered a compression
fracture of the first lumbar vertebra and a lumbrosacral strain. A body cast
was applied for a period of four weeks after which claimant wore a back brace
for six weeks. At the time of this incident she was employed as a nurse in the
ICU division of Logan General Hospital. She was able to continue working with
limitations placed upon her for lifting no more than ten pounds. At this time
she still experiences pain with her lower back. Her loss of work was in the
amount of $540.00. Her medical bills were in the amount of $1,270.08. The loss
of her vehicle was covered by her insurance carrier. The Court is disposed to
and does make an award of $2,810.08 to claimant Patricia Liming, which will be
reduced by 10% to $2,529.07.
Claimant Roger Liming alleges loss of consortium for which the Court makes
an award to him in the amount of $500.00.
Award of $2,529.07 to Patricia Liming.
Award of $500.00 to Roger Liming.
OPINION ISSUED NOVEMBER 25, 1987
GEORGE R. MAXEY AND SHIRLEY MAXEY
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-323)
Claimants appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
The claimants filed this claim in the amount of $546.92 for water damage to
property located in McArthur, Raleigh Count, for a period commencing in July,
1983. Claimants property is approximately 300 feet southwest of Route 16, which
is a State maintained highway. Claimants allege negligence on the part of
respondent for faulty engineering in the construction of the interchange at
McArthur with the Interstate 77, also known as the West Virginia Turnpike.
W.Va.] REPORTS STATE
COURT OF CLAIMS 45
Claimant George Maxey testified that on July 22, 1986, there was a heavy storm
and water entered the yard and a storage building. Several items, including a
tent, were damaged. The value of these items was estimated to be $199.96.
During construction of the McArthur Interchange of 1-77, the respondent widened
1-77 from two lanes to four lanes. A tumel was constructed under the highway
adjacent to claimant’s property. Claimants experienced excess water on their
property after this construction. Mr. Maxey stated that water flows into a mine
break. This creates a situation of excess water flowing onto claimants’
property.
Thereafter, respondent constructed a ditch from the point where the culvert
comes out to the mine break. In August, 1986, respondent also constructed a
retaining dam with rocks in an attempt to keep the silt and mud from entering
the mine.
Mr. Michael R. Ward, an engineer in Raleigh County for respondent, testified
that he is familiar with the specific highway project which is the subject
matter of this claim. The West Virginia Turnpike was upgraded from a two-lane
highway to a four-lane highway. Prior to and following this project, the water
was discharged into an abandoned mine. The same size pipe was used both before
and after the project. He stated that here would be a negligible increase in
the flow of water onto the claimants property due to another 18-inch pipe
installed in the area.
Claimants cannot recover for damages which occurred prior to September 3, 1984.
In accordance with West Virginia Code 55-2-12, a claim for damage must
have been brought within two years from the date of the damage to the property.
This claim was filed on September 3, 1986. The Court, under the provisions of
W.Va. Code 14-2-21, does not have jurisdiction over a claim which is not filed
within the time specified by the applicable statute of limitations. However,
the Court has determined that respondent was made aware of the faulty drainage
system and failed to provide a satisfactory remedy. For that reason, the Court
is of the opinion that claimants be made an award for water damage to personal
property which occurred in 1986. Accordingly, the Court makes an award in the
amount of $199.96.
Award of $199.96.
OPINION ISSUED NOVEMBER 25, 1987
JAMES E. MILLER, JR.
VS.
DEPARTMENT OF CORRECTIONS
(CC-84-2 18)
46 REPORTS STATE
COURT OF CLAIMS [W.Va.
Jeffrey W. McCamic, Attorney at Law, for claimant.
John Polak, Assistant Attorney General, for respondent.
HANLON, JUDGE:
Claimant James E. Miller, Jr., brought this action to recover damages for
injuries he received in a fall at the West Virginia Penitentiary in
Moundsville, West Virginia. Claimant alleges that respondent was negligent in
allowing excess garbage to flow onto the dining room floor posing a hazard to
those individuals using the dining facility at the Penitentiary.
Respondent contends that claimant was aware of the condition of debris on the
floor and that claimant was negligent when he walked through the area.
Respondent also contends that surgical procedures were available to claimant to
correct the injury to his back while he was still incarcerated at the West
Virginia Penitentiary or at Huttonsville Correctional Facility and, therefore,
claimant may not now recover for medical expenses, loss of wages, and pain and
suffering when he declined to have the surgery while in the custody of
respondent.
Claimant was incarcerated at the West Virginia Penitentiary from July, 1981,
until July, 1984. In 1983, claimant had surgery for a back injury which he had
received while lifting weights in a contest at the Penitentiary. Two discs were
crushed in the incident. Claimant had surgery to repair the discs. After two
weeks in the hospital, claimant returned to the infirmary at the Penitentiary
on August 2, 1983. Approximately a week later on August 8, 1983, claimant was
required to walk from the infirmary to the dining facility to eat his meals.
Claimant proceeded to the dining facility for his lunch. As he was leaving the
dining room through the only exit area, he dumped the remains on his tray into
a garbage can placed for that purpose. As he proceeded to exit from the dining
room he was speaking to a guard. At that moment he slipped on a slice of pickle
and ended up on his back on the floor. There as debris in solid and liquid form
on the floor of the dining facility at the exit area from the garbage can to
the exit door for several feet. Claimant testified that he walked around most
of the debris. However, he stated that
you couldnt walk around the juice. There was just a string of it running, just
a pool of it all the way down the hall.
As a result of this fall, claimant suffered another back injury for which he
was hospitalized at Reynolds Memorial Hospital. While there as a patient, he
was given a CAT scan and a myelogram which revealed that he had a slipped disc
and a pinched nerve. This disc was the same one for which claimant had received
surgery and for which he was recovering. Fearing further surgical treatment,
claimant requested therapy treatment. For the next three months he received
this treatment. He was then transferred to Huttonsville Correctional Facility.
He was treated for the back injury while at Huttonsville also. He had another
CAT scan and myelogram. He was placed in a body cast which was removed after
one day. He then received further physical therapy. He was offered surgical
treatment but declined that option.
W.Va.j REPORTS
STATE COURT OF CLAIMS 47
Since his release from Huttonsville Correctional Facility, claimant has
received further physical therapy. However, his physician recommends surgery as
a permanent cure for the herniated disc.
Claimant’s back injury has prevented him from returning to full-time employment
in the dry cleaning industry as he is unable to perform heavy lifting duties.
He has been generally employed that industry at $5.00 per hour for 20 hours per
week.
The Court is of the opinion that the respondents employees were negligent in
allowing garbage to overflow onto the floor of the dining facility at the West
Virginia Penitentiary. The testimony revealed that the garbage can had holes in
it, no plastic gab liners were used, nor were employees or imnates required to
keep the floor free from debris. There was only one exit area and all inmates
were required to use the exit. Garbage debris in solid or liquid form on a
floor presents a hazardous condition. It is foreseeable that persons could slip
in it and sustain an injury. Therefore, the Court holds that the negligence of
respondent was the proximate cause of the injury received by the claimant.
However, respondent offered proper surgical treatment to claimant who refused
this treatment for a permanent cure of his back injury. Claimant now comes
before this Court requesting a monetary award for this same surgery which was
offered to him in 1984. The Court, after careful consideration of claimant’s
testimony concerning his fear of surgery, has determined that claimant may
recover for the cost of the surgery which has been estimated to be $3,000.00 an
amount to compensate him and for the period of convalescence that can be
expected in the amount $2,000.00. He may not recover for any loss of wages or
pain and suffering that has resulted from his choice to refuse surgery in 1984.
Award of $5,000.00.
OPINION ISSUED NOVEMBER 25, 1987
TERRY JAMES WITHROW
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-225)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
48 REPORTS STATE
COURT OF CLAIMS W.Va.
On March 20, 1986, the claimants vehicle was involved in an accident on Martins
Branch Road. Claimant alleges that respondent was negligent in its failure to
post warning signs or flagmen at a work site at the accident location. He seeks
$73.86 for damage to the vehicle.
The claimant testified that he was driving his 1980 Chevrolet Monza south on
Martins Branch Road and was proceeding to a dentist’s office, at that location,
at approximately 38 miles per hour. The weather was clear and dry, and it was
approximately 10:45 a.m. at the time of this incident. Claimant’s
vehicle proceeded around a curve where there was an uncovered area where a cut
had been made in the road. The impact of his vehicle with the cut in the road
caused damage to his vehicle. The area which was cut out was located in
claimant’s lane on the right side. He stated that he could not avoid the area
by proceeding into the northbound lane, as it was impossible to see whether
someone else was in the northbound land. The broken out section was on the
right side of the pavement. It was approximately two and one-half feet long and
extended out from the right edge of the pavement approximately two and one-half
to three feet. Claimant observed two of respondents employees seated in a
marked vehicle close to the accident scene. These employees were inspectors for
respondent. According to the claimant, they were at the scene to inspect the
cut out area on the road.
The Court is of the opinion that respondent was working in the area and that
respondent should have place warning signs or a barrier at the cut out area on
the road. For these reasons, the Court makes an award to the claimant in the
amount of $73.86.
Award of $73.86.
OPINION ISSUED DECEMBER 3, 1987
HARDEN D. ALFSTAD AND
PHYLLIS L. ALFSTAD
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-92)
Claimant Phyllis L. Alfstad appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimants seek $381.09 for damage sustained to their automobile, a 1980
Chevrolet Citation, when it struck a hole in the surface of the highway. The
claim was originally filed solely in the name of Phyllis L. Alfstad. The
evidence revealed that the vehicle was titled jointly in the
W.Va.1 REPORTS
STATE COURT OF CLAIMS 49
names of both Harden D. and Phyllis L. Alfstad. The Court, then, upon its own
motion, amended the style of the claim to include the proper parties.
The accident occurred August 1986. Claimant Phyllis Alfstad was operating her
vehicle in an easterly direction on Route 50 in Parkersburg, Wood
County, West Virginia. Her husband accompanied her in the automobile. It was
approximately 3:00
p.m. It was raining at the time of the
accident. Claimant was unable to avoid the hole as there were automobiles in
front of her automobile, behind her automobile, and to the left of her
automobile. She was travelling at approximately 30-35 miles per hour. She
estimated the hole to be two feet by three feet. She testified that she
distinguished the hole which her vehicle struck from a pothole. She alleges
that the hole is a “cut out hole,” or one cut for the purpose of construction.
she travelled this route two to three times weekly. She was unaware of the
presence of the hole at the time she struck it, and Phyllis Alfstad did not
observe construction at the site of this incident.
Thomas Franklin Badgett, Wood County Road Supervisor for respondent, testified
that he is aware of the section of roadway which is the subject to this action.
Respondent was not performing construction work in that area in August 1986. He
explained that respondent had requested permission for resurfacing this road,
and a number of utility companies were cutting out pavement and working on
sidewalks during this time.
The testimony reveals that independent contractors were responsible for the
hole cut in the pavement. This Court has held in the past that respondent
cannot be found liable for torts committed by an independent contractor. Safeco
Insurance Co. vs. Dept. of Highways, 9 Ct.Cl 28 (1971). For that reason,
the Court is of the opinion to, and must, deny this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 3, 1987
LESTER B. ALLEN AND
THELMA M. ALLEN
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-83)
Claimants appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
50 REPORTS STATE
COURT OF CLAIMS [W.Va.
On February 26, 1987, the claimants were travelling in their 1985 Delta 88
Oldsmobile on Route 103 when the vehicle struck holes in the road. They seek
$106.18 for damages to the vehicle.
Claimant Lester B. Allen testified that he and his wife live in Gary, Mcdowell
County, West Virginia. At the time of this incident, they were returning to
their home by means of Elkhorn Mountain. It is a two-land, blacktop road, and
Mr. Allen was operating his vehicle at approximately 25-30 miles her hour. It
had rained heavily and water was standing in the road. As a result, he was
unable to see the holes. The impact of the holes with the automobile cause
damage to the automobile s tire and rim. He driver this route twice a week, and
he was aware of the existence of the holes before the accident. He does not
recall whether he complained to respondent about these specific holes.
Proof of actual or constructive notice is a prerequisite to establishing
negligence on the part of the respondent. David Auto Parts vs. Dept. of
Highways, 12 Ct.Cl. 31 (1977). Respondent did not have notice of these
particular holes in the road in time to take action to prevent this accident.
Since negligence, therefore, is not shown, and since the State is neither an
insurer nor a guarantor of the safety of motorists on its highways Adkins
vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947), this claim must be denied.
Claim disallowed.
OPINION ISSUED DECEMBER 3, 1987
CARL NEILOUS BAILEY
VS.
DEPARTMENT OF NATURAL RESOURCES
(CC-86-438)
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAM:
On November 9, 1986, the claimants was operating his 1976 Ford pickup truck in
an easterly direction at North Bend on Route 39. A bear approached his vehicle,
and the vehicle struck it. As a result, damages were incurred by claimant’s
truck, and the claimant seeks compensation in the amount of $837.47.
W.Va.] REPORTS
STATE COURT OF CLAIMS 51
The claimant testified that he was proceeding at approximately 50 miles per
hour
at the time of this incident. He was accompanied in the truck by two of his
friends. It was about
630 p.m. and had just gotten dark. The weather was clear and dry. Claimant s
vehicle rounded
a curve in the vicinity of a picnic aiea, The bear was impossible to avoid
according to the
claimant. The accident site is located in the Monongahela National Forest, a
bear sanctuary.
Claimant stated that the bear was tagged and had a beeper on it.
The Court finds that the claimant was aware that he was driving in an area
where bears may be anticipated to appear on the road. It was foreseeable that
an animal such as a bear or deer might attempt to cross the road in the
Monongahela National Forest. It is the opinion of the Court that the respondent
was not negligent in the instant claim. The Court, therefore, denies the claim.
Claim disallowed.
OPINION ISSUED DECEMBER 3, 1987
STEPHEN GREGG AND EMMA GREGG
VS.
DEPARTMENT OF FINANCE
AND ADMINISTRATION
(CC-79-5 14)
Allan A. Masinter, Attorney at Law, for claimant.
Robert D. Pollitt and John Polak, Assistant Attorneys General, for respondent.
GRACEY, JUDGE:
This claim was filed by Stephen Gregg and Emma Gregg, who were husband and wife
on September 27, 1977, when Stephen Gregg was injured and rendered paraplegic.
His claim is for damages incident to his injuries. Her claim is for loss of
consortium.
Respondent had entered into a contract with Restoration of Missouri, Inc. for
certain renovation work on the state capitol building. The work involved
sandblasting, cleaning, caulking, etc. The skilled labor, bricklayers, were
hired through a bricklayers’ union, Local No.
9. The unskilled labor, laborers, were hired through a laborers’ union, Local
No. 1353. Both unions had a foreman and steward on the job. Stephen Gregg had
been assigned to the job by the laborers’ union and served as a bricklayers’
tender. As such, his work involved cleaning up after sandblasting, filling sand
pots, helping with installation of scaffolding from the ground and helping
52 REPORTS STATE
COURT OF CLAIMS [W.Va.
with the horizontal relocation of suspended scaffolding. He had never had any
previous occasion to be on a suspended scaffold, and had had no instruction
concerning them or the use of the motors at each end, the safety belts, etc.
As the result of rain on that morning, it had been decided to shut the job down
at mid-day. This would include securing the suspended scaffolds well above
ground level to avoid unauthorized use and vandalism. Gregg testified that he
was told by one of his superiors to go around to the area where he was working
that day and do whatever he could to help shut the job down for the day. His
recollection was that a Gary Holley, a bricklayer, had asked him to help Mike
Crislip, an apprentice bricklayer, raise the suspended scaffold, from which he
fell, to a second floor window level. Mike Crislip had been left, by his fellow
bricklayers, to raise the scaffold by himself. He testified that he had raised
its right end a few feet, and was about to move to its other end to raise that
end, when Jerry Holley, a bricklayer, had told Gregg, “Help him do that’ and
Gregg had jumped up on the scaffold. Gregg may have put on a safety belt, but
the evidence was not clear as to whether he had put it on properly, had
properly connected it or whether he would have been saved from hitting the
ground, when he fell, if the belt was properly worn and connected.
As the scaffold was being raised, some part of it caught at the top of the
first window. Crislip told Gregg to “Kick out”, and the scaffold started up
again. Apparently, it got caught again on a belt course, a cornice type
protrusion. Crislip testified that he heard the engine grinding and said to
Gregg, “Let go of the engine”; that when he looked back again, Gregg had
fallen. Gregg’s account of the occurrence is:
“Well, I got on the scaffold and I can’t remember if I put a safety belt on or
not. If I did, it wasn’t tied on, I didn’t know how, but I just didn’t see no
harm in it. He said just push in on the button when I push in ‘til we get to
the second floor, so we were pushing simultaneously the buttons and was going
up and the next thing I remember, my side was hung up under a ledge or
something of the wall and I still had my hand on the motor. He had his hand on
his motor and the next thing I knew he said to kick out from the wall a little
bit and at that time the scaffold bumped out I’d say five to eight feet, enough
for me to tumble and do a somersault off the building.”
Claimants contend that the respondent had failed in a duty to provide a safe
work place, citing regulations under the Occupational Safety and Health Act
(OSHA). These regulations require, on the open sides of such a scaffold, under
certain conditions, a top guard rail, a mid rail, and a toe board. None were in
place on the building side of the suspended scaffolds used on this job.
Apparently, no complaint was ever made about this by the bricklayers who worked
on the scaffolds, by the union foremen or stewards or by Appalachian Engineers,
Inc., a company which
W.Va.] REPORTS
STATE COURT OF CLAIMS 53
had been employed by respondent to oversee the work but excluded from
safety responsibilities in its contract.
This Court views this claim as one which can be presented only to the Workers
Compensation Fund (W.Va. Code, Chapter 23). (See also W.Va. Code 14-2-14 (2).
Assuming a contractor s employees to be employees of the owner, the State in
this instance, an employee would have a case of action against the owner only
if the injury resulted from the deliberate intention of the employer to produce
such injury (See W.Va. Code 23-4-2 as adopted by the 1969 Legislature, Chapter
152). This Court finds no such deliberate intention in the evidence presented.
Claim disallowed.
Judge Hanlon did not participate in the hearing or decision of this claim.
OPINION ISSUED DECEMBER 3, 1987
MARGOT D. GROSE AND CHARLES W. GROSE
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-260)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
During the first week in June in 1986 a substance, appearing to be tar, was
placed on Woodrums Lane, at the location of the claimants’ home. The road has
an elevation higher than that of claimant’s yard, and the substance seeped into
the yard. Damage was done to claimants’ carpet, among other items. Claimants
seek $1,802.42.
Claimant Margot D. Grose testified that their insurance company paid for the
replacement of claimants’ carpet at a cost of $1,300.00. They have a $200.00
deductible, which claimants paid. She stated that the substance was placed on
Woodrums Lane one day and seeped to the surface on the next day. She stated
that her home is 35 feet from the road. The tar-like substance seeped about
one-half of that distance into her yard. Her two teen-aged grandchildren walked
through the year and tracked the substance into her home. Damage was done to
the carpeting, to the children’s clothing, and to the mats in her automobile.
54 REPORTS STATE
COURT OF CLAIMS [W.Va.
Mr. Nelson Lee Fowler, Assistance to the District Maintenance Engineer, Kanawha
County, for respondent, testified that he was familiar with this particular
resurfacing project. The liquid asphalt that was used has been utilized for
numerous years. Two days after the finished coat was placed upon the road,
respondent attempted to remedy the situation. This was a contract project by
West Virginia Paving Company, Inc. He received complaints concerning the work
performed under the contract.
It is the general rule that the employer of an independent contractor is not
liable for torts committed by the independent contractor. Safeco Insurance
Company vs. Dept. of Highways, 9 Ct.Cl. 28 (1971). As the evidence revealed
that the work was under contract to West Virginia Paving Company, Inc., the
Court must deny the claim.
Claim disallowed.
OPINION ISSUED DECEMBER 3, 1987
PAUL P. KNOTT, EXECUTOR OF THE
ESTATE OF DELORES C. KNOTT, DECEASED
VS.
DEPARTMENT OF HIGHWAYS
(CC-85-35 1)
Ralph W. Haines and George Daugherty, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
GRACEY, JUDGE:
This claim was filed by Paul P. Knott as Executor of the Estate of his wife,
Delores
C. Knott, whose death occurred as the result of a single care accident at about
6:45 am. on Friday, January 27, 1984, in the vicinity of Kens Grocery, about
2.7 miles West of Burlington on Route 50, in Mineral County. Mrs. Knott
was driving the family car, a 1978 Buick, with new all reason radial tires,
westerly on Route 50, on her way to work as an operating room nurse at
Potomac Valley Hospital in Keyser. after rounding a gradual curve to her right,
she apparently lost control of her car on a large area of ice on the highway.
The car went off the left side of the highway and through a parking area of the
store, its right side striking a large tree, and the car coming to rest down
over a bank. From the evidence, it appears that the ice on the highway was from
water from a drainage ditch on the northerly side of the highway. The
temperature was reported as 20 degrees at 7:00 o clock that morning.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 55
The icy condition had been similar on the previous morning when two other
vehicle operators had lost control. Witness Lisa E. Taylor testified about how
she had lost control of the vehicle she had been operating in a westerly
direction at about 8:20 a.m. She told how the vehicle had turned and proceeded
backwards through the store lot and had been stopped by a pile of plowed snow.
Shortly afterwards, and having observed other vehicles coming by as he helped
her from her car and into his store, Kenneth L. Welch, owner of the store had
telephoned the respondent’s office:
“I told them exactly what had happened. I said we’re going to have a real bad
accident. Not something similar like the one had just happened. The only response
I got, We are aware of the situation”.
At about 6:10 am. on that previous morning, witness Jeffrey S. Pyle had also
lost control of his vehicle on the patch of ice as he was traveling westerly.
He, too, had gone off the left side of the highway, his vehicle finally coming
to rest in the store parking lot. After proceeding to his job, he had
telephoned the respondent, describing the patch of ice as “about three car
lengths long” and emphasizing its serious nature. On the following morning, he
had hit a patch of ice there again and had again, upon arrival at work,
telephone the respondent, but the fatal accident had probably then already
occurred.
Sergeant (then Trooper) G. A. Armentrout, of the Department of Public Safety,
testified about his investigation of the accident resulting in the death of
Mrs. Knott. He arrived at the scene at about 8:00 a.m. He had indicated the
presence of an “icy area” on his diagram.
Several of respondents employees testified and several daily record forms of
respondent were placed in evidence. There was no testimony or exhibit tot he
effect that the subject patch of ice had been dealt with in any manner prior to
the accident and death of Mrs. Knott. A work form for the previous day, January
26, did show that a dump truck and spreader had been sent out at some time with
two tons of salt (with abrasives) for Route 50 but did not show any application
of same to the subject patch of ice. Mr. Pyle said that, in his two telephone
reports to the respondent, he had been told that the highway had been treated
earlier. He said he had closely examined the patch of ice on the morning on
January 27th and that nothing had been applied to it.
At the time of her death Mrs. Knott was the income provider for her family,
earning $18,557 from her employment while the family dairy farm had
operated at a loss during 1983. In addition to her husband, Mrs. Knott was
survived by four daughters. It had been a close family. Ann Knott, the oldest,
was managing a bowling alley in Romney. Linda Knott was a Senior at Salem
College. Susan Knott Marks was married and living at Frederick, Maryland. The
youngest, Janet Delores Knott (now Bacorn) was a Junior in high school, and
plans were being made for her to go to college, plans which had to be abandoned
by reason of her mother’s death.
56 REPORTS STATE
COURT OF CLAIMS [W.Va.
The evidence showed that the described icy condition, at that place, was one
which had never occurred prior to January 26, 1984. Mrs. Knott had stayed home
from work that day, recovering from a cold, and apparently had no forewarning
of its presence.
Respondent s ditch work is ordinarily done in warn weather months. But had the
respondent appropriately responded to the telephone calls it received from Mr.
Welch and Mr. Pyle on January 26, 1984, it is a fair assumption that the ditch
would have been cleaned, keeping the water from flowing into the highway, or
that the area would have been adequately treated with salt and abrasives during
the following freezing temperature night and early morning hours. Neither of
these actions was taken, nor were any warning signs placed.
This Court has repeatedly held that the State is not a guarantor of the safety
of travelers on its roads, following Adkins
vs. Sims, 130 W.Va. 645, 46 S.E.2d 81
(1947). Exceptions have been allowed where the Department of Highways had
actual or constructive notice of a defect and, having adequate time, had failed
to correct the defect or provide warning signs or barriers. Neither can the
State be required nor expected to keep its highways absolute free of ice and
snow at all times, and the presence of an isolated ice patch on a highway
during winter months is generally insufficient to charge the Stat with
negligence. See 39 AM. JUR. 2d Highways, Streets and Bridges, par. 506. See also Woofler vs. State Road Comm ‘n., 2 Ct.Cl. 393 (1944); Christo vs. Dotson, 151 W.Va.
696, 155 S.E.2d 571 (1967). However, this Court did find negligence and impost
liability on the State, with reference to such an isolated patch of ice where its
presence was not due to natural elements, but due to a clogged culvert, the
routine maintenance of which was the admitted responsibility of the State, even
tough it was unclear whether the State had or should have had actual knowledge
of the particular culvert adjacent to the site of the accident, the State being
chargeable with a duty to inspect and correct the condition within the limits
of funds appropriated by the legislature. Application of salt and cinders was
inadequate, it being foreseeable that the continued spread of water onto the
road and the drop in temperature after sundown, would result in the reformation
of ice. McDonald vs. Department of
Highways, 13 Ct.Cl. 13 (1979). The
facts of the instant case are practically identical except that here a drainage
ditch was clogged, and the Department of Highways had actual notice, about
twenty-four hours earlier, of the present of the ice. Its failure to take
appropriate action to determine and correct the situation requires a finding of
negligence on its part.
Accordingly, the Court makes an award in the sum of $152,732.00 to Paul P.
Knott, Executor of the Estate of Delores C. Knott, Decease, including:
(A) The sum of $2,723.00 for funeral expenses;
(B) The sum of $50,000.00 to be distributed to Paul
P. Knott, surviving husband of Delores C. Knott:
(C) The sum of $23,750.00 to be distributed to Ann
Knott, a surviving daughter of Delores C. Knott;
W.Va.1 REPORTS
STATE COURT OF CLAIMS 57
(D) The sum of $23,750.00 to be distributed to Linda
Knott, a surviving daughter of Delores C. Knott;
(E) The sum of 23,750.00 to be distributed to Susan
Knott Marks, a surviving daughter of Delores C.
Knott; and
(F) The sum of $28,750.00 to be distributed to Janet
Delores Knott Bacorn, a surviving daughter of
Delores C. Knott.
Total Award $152,732.00.
OPINION ISSUED DECEMBER 3, 1987
BONITA M. KOUNS, ADMINISTRATRIX OF
THE ESTATE OF MICHAEL WAYNE KOUNS, DECEASED
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-215)
Larry D. Taylor, Attorney at Law, for claimants.
Nancy J. Aliff. Attorney at Law, for respondent.
HANLON, JUDGE:
Claimant, Bonita M. Kouns, Administratrix of the Estate of Michael Wayne Kouns,
filed this claim in the amount of $325,000.00 against the respondent for the
wrongful death of her
husband, Michael Wayne Kouns, which occurred when the decedent and his uncle
were in a
single-car accident on January 31, 1985.
At the time of the accident, Michael Wayne Kouns was driving his mother’s
vehicle from Marmet to Whitesville, on State Route 94. He was accompanied in
the automobile by Edgar Stacy, his uncle. The weather was in a freeze-thaw
cycle. As he approached Hernshaw, in the vicinity of Delcie’s Tavern, he lost
control of the automobile, crossed both lanes of Route 94, and struck trees
located across the highway and on the opposite side of Route 94. Mr. Kouns dies
as a result of the accident. It is alleged that the automobile struck ice which
was on the berm adjacent to Route 94 and that this was the proximate cause of
the accident.
58 REPORTS STATE
COURT OF CLAIMS [W.Va.
The vehicle was proceeding in a southerly direction at a speed in excess of 55
miles per hour. The speed limit at that location is 45 miles per
hour. There is a hillside behind Delcies tavern, the site of the accident. This
hillside is not on property which is owned or maintained by respondent. The
record revealed that water runs down from the hill and collects in front of the
tavern. There is a culvert located about 150-175 feet up Route 94 from Delcie’s
Tavern. Ice had accumulated at that location in previous winters. The ice was
estimated to be approximately 12-18 inches thick on the day of the accident.
There was conflicting evidence concerning whether or not the automobile which
the deceased was operating actually struck the ice. One witness to the incident
testified that it did. The trooper who investigated the accident testified that
he observed no physical evidence showing that the vehicle had struck the ice.
More importantly, an individual who was following Mr. Kouns, with the intention
of repossessing the Kouns vehicle, testified that he did not observe the Kouns
vehicle strike the ice. He stated that Michael Kouns lost control of the
automobile before reaching the ice.
Several individuals testified that they had made complaints to respondent
concerning the water in the vicinity of Hernshaw. However, when queried, it was
learned that the complaints were not specifically related to the accident site,
nor were these complaints voiced in 1985 or the previous winter.
The Court finds no reliable evidence that the accumulation of ice on the
highway was the proximate cause of the accident. The deceased was travelling at
a rate of speed that was excessive for the driving conditions at the time in
addition to being about the legally mandated speed limit. There was no credible
evidence to support the allegation that claimant s accident was caused by his
vehicle striking the ice. To make an award in this case, the Court would be
obliged to conclude that respondents negligence was the sole proximate cause of
Michael Kouns death. There is no credible evidence to support such a
conclusion.
Claim disallowed.
OPINION ISSUED DECEMBER 3, 1987
ROBERT AND LYDIA LEFFEW
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-79)
James Barber, Attorney at Law, appeared for claimants.
Nancy J. Aliff, Attorney at Law, appeared for respondent.
W.Va.] REPORTS
STATE COURT OF CLAIMS 59
HANLON, JUDGE:
The claimants in this action seek recovery of $10,018.00 for damage to their
real estate and to their 1970 americana mobile home located on Eskins Avenue in
Chelyan, Kanawha County, West Virginia. Claims purchased the lot and mobile
home in 1981 or 1982. Claimant Robert Lee Leffew originally filed the claim in
his name. When the evidence revealed that the property and mobile home are
titled in both the names of Robert Lee and Lydia Leffew, the Court granted the
motion of the claimant to include Lydia Leffew as a party claimant.
The claimant’s property and mobile home are located below and to the right of
the Chelyan Bridge which spans the Kanawha River from Route 61. Eskins Avenue
is the street in front of claimants’ property. This street is not maintained by
respondent. There is a storm sewer under claimants’ mobile home which starts on
Wilshire Street above Eskins Avenue. The sewer ends at the west side of the
Chelyan Bridge, emptying into the Kanawha River. Wilshire Street is parallel to
Route 61.
Claimant robert Leffew testified that water damage occurred to the property
shortly after the Chelyan Bridge was resurfaced in 1981 - 1982. He experience no water problems prior to the work
being done on the bridge. Claimants allege that when the bridge was resurface,
the drains were negligently paved over and improperly crowned, and that this
resulted in water accumulating and standing in claimants’ front yard.
Claimant Robert Leffew alleges that the standing water eventually caused the
foundation to sink resulting in a leak in the ceiling of the mobile home. Water
leaked from the ceiling, down through the walls, and came into the floor under
the carpet. Eventually, the other end of the mobile home started leaking. As
the foundation of the mobile home continued to sink, the cement steps located
in the front of the mobile home pulled away from the porch.
By instrument dated February 15, 1984, the claimants agreed to permit respondent to
place a culvert across the property. At that time, respondent placed a plastic
culvert. According to Mr. Leffew, respondent run a line off the ditch line, put
an obstacle there to turn the water down into the culvert and run down under
the bridge into an open ditch line into a community drain.” This action on
respondent’s part remedied the problem of the water standing in claimants’
front yard by diverting it to their back yard. Claimant asserts he was unable
to repair the mobile home and that he traded it in October of 1986.
The evidence shows that there were no down spouts on the mobile home to take
water away from the foundation, and that the mobile home was held up by 15
concrete block pillars three blocks high. There were no footers beneath the
block pillars.
Testifying on behalf of the respondent was Joseph Thomas Deneault, Assistant
District Engineer for Maintenance for District 1 for respondent. Mr. Deneault
is familiar with the area which is the subject of this claim as it falls within
District 1. He described the Chelyan
60 REPORTS STATE
COURT OF CLAIMS [W.Va.
Bridge as a truss bridge with long approach spans. It is a two-lane bridge,
built around 1930 and paved with asphalt. He estimates that Route 61 is
approximately eight or nine feet higher that the claimants’ property. He stated
that Eskins Avenue is not maintained by respondent. It is Mr. Deneault’s
professional opinion that claimants’ water problems are caused by the natural
surface water that fell onto the property, and also by the fact that property
was not sloped properly to drain surface water. He did admit that there had
been some increase in drainage as a result of bridge approach run-off. Mr.
Deneault stated that he has not visited the property after a heavy rainfall or
when there is standing water.
The record in this case fails to support the conclusion that the resurfacing of
the bridge was the sole proximate cause of the water damage to claimants’
property. While water from heavy rains followed their natural course from the
bridge to claimants’ property, the evidence revealed that the damaged mobile
home lacked a drainage system for water from its roof. To determine that the
improper resurfacing of the bridge was the proximate cause of water from the
roof leaking into the wall of the mobile home is unwarranted from the evidence.
Accordingly, the Court is of the opinion that the claimants have not shown by a
preponderance of the evidence that the damages claimed were the result of
actionable negligence on the part of the respondent and hereby disallows the
claim.
Claim disallowed.
OPiNION ISSUED DECEMBER 3, 1987
TIMMIE J. MCMILLAN
vs.
DEPARTMENT OF HIGHWAYS
(CC-86-322)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On July 20, 1986, the claimant wa operating his 1979 Honda Gold Wing motorcycle
on Route 250 south of Cameron when his motorcycle encountered gravel. As a
result, the motorcycle incurred damages. Claimant submitted invoices totalling
$410.83 which is the amount he seeks in damages.
W.Va.] REPORTS
STATE COURT OF CLAIMS 61
The claimant testified that on the day of the incident, he was travelling from
his home in Moundsville to Elkins, between 11:00 and 11:30 am. Weather
conditions were good as it was dry and sunny, The road is a blacktop, two-lane
roadway, and it is “crooked” all the way from Cameron. Claimant s speed was
approximately 40 miles per hour. There was new patching on the road. As his
vehicle approached a small rise i the road and a left-hand turn, the entire
turn was covered with very small gravel. Claimant’s motorcycle slid on the
gravel, whereupon it slid over an embankment and into the woods.
Claimant further stated that the day of this incident was a Sunday. Respondent
was not working in the area at that time. Claimant has no personal knowledge as
to how the gravel got on the roadway at that location. However, he alleges that
respondent’s road repair created the gravel, and, therefore, the hazard. He
noted that there were patched areas on the left side of the road, and the
gravel appeared to have come across the road from the patches.
The Court concludes that respondent had neither actual or constructive notice
of the hazard. Respondent cannot be held liable uniess notice is established by
the claimant. As there was no such evidence presented, the claim must be
denied.
Claim disallowed.
OPINION ISSUED DECEMBER 3, 1987
ROGER L. MICHAELSON, INDIVIDUALLY
AND ROGER L. MICHAELSON, AS NEXT FRIEND
OF LYNETTE MICHAELSON, A MINOR,
AND LOIS J. MICHAELSON
VS.
DEPARTMENT OF HIGHWAYS
(CC-85- 16)
Joseph C. Cometti, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
GRACEY, JUDGE:
On September 29, 1983, at about 10:00 o’clock p.m., claimant Lois J. Michaelson
was operating a 1982 Ford Escort station wagon, titled in the name of her
husband, claimant Roger L. Michaelson, in a southerly direction on Coal River
Road, also known as Secondary Route 3, sough of St. albans in Kanawha County.
She was accompanied by their young daughter, Lynette. They were on their way to
their home, near St. albans, from Marmet. About a mile after
62 REPORTS
STATE COURT OF CLAIMS [W.Va.
passing Indian Head subdivision, the vehicle crossed the center line and struck
a northbound old Ford three-quarter ton truck being operated by a Dayton Price. Mrs. Michaelson has no recollection
of what happened from the time she pasced the Indian Head subdivision until she
regained consciousness, pinned in the car, after the accident had occurred. The
claimants allege that a defect in the highway surface must have caused her to
lose control of the car, thus causing the collision. An award of damages in the
total amount of $59,097.61 was requested.
The Michaelson vehicle had passed a small, broken blacktop area, along the
westerly side of the pavement, just prior to the occurrence of the collision.
Claimants apparently believe that the right front wheel struck, or passed
through, this broken blacktop area and that this caused Mrs. Michaelson to lose
control.
Trooper N.K. Davis investigated the accident. He had noted the broken blacktop
and testified that it extended no more than a foot into the travel portion from
the edge of the highway. The vehicles had come to rest generally beside each
other, and both headed north. The Michaelson car was on the berm and embankment
on the easterly side of the highway. The truck was mostly in the northbound
lane The debris was on the right side of and also immediately behind the truck.
The collision had involved the front of the Michaelson car and the right front
of the pickup truck. He had measured the distance, diagonally across the
southbound lane, from the broken blacktop to the right front of the pickup
truck, as 110 feet. Skidmarks behind the pickup truck were 26 feet long. He
estimated the pavement width as 24 feet.
Mrs. Michaelson testified that, prior to the accident, she had travelled the
subject section of the highway frequently, at least every other day, and she
described the highway as being ‘a hoovy road, dippy.” She described the
injuries she and her daughter had suffered, their hospitalization and
treatment, and the medical expenses incurred.
Dayton Price, the operator of the pickup truck, testified that he was
travelling about 47 miles per hour. He was going up a slight grade and was
shifting down to a lower gear. He described the oncoming car as apparently
being out of control, combing into his lane, then apparently regaining control,
then apparently out of control again.
Leo Francis Bodie, an Associate Professor of mechanical engineering at West
Virginia Institute of Technology, was presented as a witness by the claimants.
His only visit to the accident scene had been o the day prior to his appearance
as a witness. He had measured the width of the pavement and said it was just
over 20 feet wide. In answer to a hypothetical question, including a number of
facts and a number of assumptions, he indicated that the Michaelson car might
have been thrown out of control if it had hit the broken pavement area. He conceded
that the car might have been out of control for a different reason.
There was no evidence that the Department of Highways knew or should have known
of the broken pavement edge. For the respondent to be held liable for damages
caused by such a highway defect, the claimant must prove that the respondent
has actual or constructive
W.Va.J REPORTS
STATE COURT OF CLAIMS 63
notice of the existence of the defect, had failed to correct it within a
reasonable time, and that the defect was the cause of the damages The State is
neither an insurer nor a guarantor of the safety of travellers on its highways.
Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947). The Court cannot
base an award on speculation or conjecture. The Court must, therefore, deny
this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 3, 1987
ROBERT M. MOORE AND JUANITA MOORE
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-38)
Kenneth E. Kincaid, Attorney at Law, for claimants.
Andrew Lopez, Attorney at Law, for respondent.
GRACEY, JUDGE:
On August 19, 1985, the claimants were travelling south on Route 20 at Lerona
when their motor home left the travel portion of the roadway and proceeded onto
the berm whereupon the vehicle struck a hole. Claimant Robert M. Moore was
driving the motor home. He lost control of the vehicle, and it struck a tree.
The claimants allege negligence on the part of respondent for failure to
maintain the berm, which constituted a hazardous condition, and seek
$31,031.40.
The claimants are husband and wife and were travelling in their 1978 Dodge
XPlorer, 24-foot motor home. Mr. Moore was operating the vehicle and his wife
was a passenger. They had visited Pipe Stem State Park and were proceeding
toward Princeton at approximately 11:00 a.m. at the time of the incident. Route
20 is a two-land, asphalt highway. The weather was clear and the road was dry.
The Moore vehicle was being approached by another vehicle in the opposite lane.
To compensate for the narrow width of the highway, Mr. Moore attempted to keep
his motor home to the far right. In so doing, the motor home slipped off the
paved surface of the road onto the berm and struck a hole located on the berm.
Testimony in the claim revealed that individuals who worked and lived in the
vicinity of this accident were award of the existence of the hole. The hold was
estimated to be 15 inches in circumference and 7 inches deep. Complaints had
been made to respondent concerning the presence of holes in the berm on Route
20. However, no complaints were made with specific reference to this hole.
64 REPORTS STATE
COURT OF CLAIMS [W.Va.
Corporal Dan Fulknier, a member of the Department of Public Safety,
investigated this accident. He testified that the width of Route 20 is
approximately 19 feet. There is a double yellow line in the center of the road.
The depth of the pavement, from the top of the pavement to the normal berm, was
7 inches. This differential extends the length of the entire berm in that area.
Corporal Fulknier stated that he was able to locate an accident report for an
incident occurring previous to August 19, 1985. The report documented an
accident which may have occurred on or about July 14, 1985, at the same
location as the present accident. However, the accident report did not mention
a hole in the berm.
The record also revealed that respondent had not received any complaints
concerning this area of the road or the berm prior to the accident.
The evidence as presented fails to reveal why claimant Robert M. Moore drove
his vehicle off the travel portion of the road and onto the term at the
accident site. The paved highway would facilitate the passing of two vehicles.
The Court has held that a traveler on the States highways travels at his own
risk and uses the berm at his own risk. See Cole vs. Dept. of Highways, CC-82-292,
(January 17, 1986).
The Court has been unable to determine negligence on the part of respondent in
the maintenance of the berm on Route 20. There was no apparent reason for the
Moore vehicle to veer onto the berm. In accordance with previous decisions of
the Court, the claim must be denied.
Claim disallowed.
Judge David G. Hanlon did not hear nor participate in the decision of this
claim.
OPINION ISSUED DECEMBER 3, 1987
MOTORISTS MUTUAL INSURANCE COMPANY,
AS SUBROGEE OF NOAH THOMAS
VS.
DEPARTMENT OF HIGHWAYS
(CC-87- 107)
Claimant Noah Thomas appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
W.Va.] REPORTS
STATE COURT OF CLAIMS 65
This action was filed to recover the cost of repair to a 1980 Chevrolet Fleetside
half-ton pickup truck, which occurred as the result of an accident on August
10, 1986. Claimant insurance company paid Noah Thomas and his wife, Dreama
Thomas, its insureds, $3,200.00, for which it presently makes this claim.
Claimant’s insured was travelling on Whiteman Ford Road in the vicinity of
Elkview, Kanawha County, at approximately 7:00 p.m. The road was wet at the
time of the accident, there had been a heavy rain earlier. The highway has a
gravel surface and is wide enough for two vehicles to pass each other in
opposite lanes of travel. The claimants insured stated that there were several
big holes in the middle of the road. As the vehicle which he was operating
passed through the area, the right side of the road collapsed, and the truck went
over the bank and flipped on its side. Claimant was travelling at about 7-10
miles per hour at the time of the accident. The bank is six to seven feet high.
Mr. Calvert Mitchell, Supervisor for the Elkview headquarters of respondent,
testified that there had been no complaints concerning the imminent collapse of
this road. He had been on this highway prior to the accident and had not
noticed anything wrong with the road.
Mr. Nelson Fowler, Maintenance Assistant to the District Maintenance Engineer
for respondent, testified that he is familiar with the road at the accident
site. He had received no complaints prior to the accident that the road wa sin
imminent danger of collapsing. He further stated that to his knowledge no one
employed by respondent had been contacted regarding the possibility that this
roadway might collapse.
The State is neither an insurer nor a guarantor of the safety of persons
travelling on its highways. Adkins vs. Sims, 130 W.Va. 645 (1947). For
negligence of the respondent to be shown, proof of notice of the defect in the
road is required. Davis Auto Parts vs. Dept. of Highways, 12 Ct.Cl. 31
(1977). In this case, there was no evidence that respondent knew or should have
known of the propensity of the road to collapse. The Court must, therefore,
disallow the claim.
Claim disallowed.
OPINION ISSUED DECEMBER 3, 1987
MARTHA THAXTON, ADMINISTRATRIX
OF THE ESTATE OF
JOSEPH PHILIP HANCOCK, DECEASED
VS.
DEPARTMENT OF HIGHWAYS
66 REPORTS STATE
COURT OF CLAIMS [W.Va.
(CC-78-263)
L. Alvin Hunt, Attorney at Law, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
PER CURIAM:
Claimant Martha Thaxton and Charles Hancock are the parents of six children. In
late 1975 and 1976, claimant Martha Thaxton, Charles Hancock, and the children
were residing with Dora Dunn, the children’s grandmother. In December 1975, Charles
Hancock left the home. The claimant also moved from the home, at that time, and
left the children temporarily in the custody of their grandmother. On February
18, 1976, temporary custody of the children was awarded by Order of the
Juvenile Court of Raleigh County to the Department of Welfare now known as the
Department of Human Services, the respondent herein. Subsequently, in October
1976, Joseph Hancock, then 13 years old, was returned to Dora Dunn’s home by
one of the houseparents at the Beckley Child Care Center where he had been
staying. On November 4, 1976, an uncle of the child, Philip Dunn, shot and
killed Joseph Hancock. Philip Dunn resided next door to Dora Dunn. Claimant
alleges that respondent breached its duty to safeguard her son from foreseeable
dangers and hazards to his health, safety, and well-being. She also alleges
that the respondent breached its duty to Joseph Hancock by placing him in the
home of his grandmother where he had been previously threatened and assaulted
by Philip Dunn. Claimant seeks $20,000.00.
Joseph Hancock was placed at the Beckley Child Care Center from February 18,
1976 to October 1976. He was unable to adjust to the center and had
disagreements with the houseparents. At one point, he had run away to the
grandmother’s home. It was at Joseph’s request that he was returned to the home
of Dora Dunn. Esther Motley, Social Service Worker II, attained assurance from
Dora Dunn that she was willing to have Joseph Hancock return to her household
before he was placed with her in October, 1976.
The claimant bases her allegation of negligence on a “Social Summary” by Nancy
Elkin, Social Service Worker II, West Virginia Department of Welfare. In the
“Addendum”,
Nancy Elkin noted that “On Sunday, February 1, an uncle ran the children off
from their home
in their barefeet Claimant alleges that this report indicates that respondent
had notice that
Philip Dunn had violent tendencies. although the claimant had knowledge of
threats made by
Philip Dunn to her children, she never informed the West Virginia Department of
Welfare.
To make an award in this case, the Court would obliged to conclude that it has
been shown by a preponderance of the evidence that the respondent was guilty of
negligence which proximately caused the death of Joseph Hancock. It is urged
that the Court should reach that conclusion solely upon the evidence of the
“Social Summary.” The Court cannot agree. There was no proof submitted to the
Court that respondent West Virginia Department of Welfare was aware, or that in
the exercise of ordinary care should have been aware, that by placing Joseph
W.Va.] REPORTS
STATE COURT OF CLAIMS 67
Hancock iii the home of Mrs. Dunn, it was placing him in a
dangerous situation. Therefore, there wa no breach of duty and no resulting
negligence on the part of the respondent.
Claim disallowed.
OPINiON ISSUED DECEMBER 3, 1987
EDWARD S. WELCH
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-82)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimants seeks $1,212.15 for damages arising out of an automobile accident
which occurred on February 11, 1987. The Court, with the approval of the claimant,
amended the style of the claim to reflect the Department of Highways as the
proper party respondent.
On that day, the claimant was driving his 1971 Chevrolet pickup in a southerly
direction on Route 119 on the north side of Mink Shoals. Two rocks fell in
front of his vehicle, and the vehicle struck the larger of the two rocks, The
automobile was totalled. It was dry and clear at the time of this incident, but
it was not yet daylight, since the incident occurred at 5:30 am. Route 119 is a
two-lane, blacktop highway. The claimant was travelling at between 45 and 50
miles per hour. The two rocks were in the process of falling from the hill when
the claimant first observed them. One rock came down in front of his
automobile, and the automobile struck
it. The claimant’s injuries required a trip to the emergency room. Claimant had
been travelling this route for four years but had not encountered rocks at this
location in the past.
Calvert L. Mitchell, Assistant Supervisor for Kanawha County, for respondent,
testified that he was aware of the rock fall in the vicinity of Mink Shoals
exit on Route 119 sough, on February 11, 1987. He did receive a telephone call
after 5:30 a.m. about this particular incident. He stated that they have had
falling rocks there from time to time. However, he was not aware of the rock at
the site of the accident before the telephone call of February 11, 1987.
Nelson L. Fowler, Maintenance Assistant for Kanawha County, for respondent,
testified that he was aware of the situation which is the subject of this
claim. He resides in the area where the accident occurred. Respondent was
notified shortly after the rock fall on February
68 REPORTS STATE
COURT OF CLAIMS [W.Va.
11, 1987, and a crew was dispatched to the scene shortly thereafter. The daily
inspector reports showed that no notice was given to respondent immediately
prior to February 11, 1987.
The evidence in this record indicates that the dangerous condition appeared
suddenly and that the respondent promptly moved to take safety precautions as
soon as it became aware of the problem. Barnhart vs. Dept. of Highways, 12
Ct.C1. 236 (1979). Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d
81(1947), holds that the State is neither an insurer nor a guarantor of the
safety of the motorists on its highways. The Court is of the opinion that
negligence on the part of the respondent has not been established, and,
therefore, the Court denies this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 3, 1987
ALBERT F. WILSON, SR.
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-43 1)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant seeks $157.88 for damage done to his 1980 Chevrolet truck as the
result of an incident which occurred on November 9, 1986.
The claimant testified that he was travelling south on Route 119 in Elkview in
the location of the Elk Shopping Plaza. It was approximately 7:15 am., and he
was proceeding at a speed of 20-25 miles per hour. His automobile encountered
standing water and rock. The rock damaged the running board of the automobile.
It had been raining heavily previously, but was not raining at the time of this
incident. He had not observed the water on prior occasions. He estimated the
water to be six inches deep. He did not observe the rock before his vehicle
struck it, but his vision was obstructed by the light from the shopping plaza.
The accident location is a straight stretch of roadway. He did not report the
defect to respondent.
The State is neither an insure nor a guarantor of the safety of travellers on
its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947). For
the respondent to be held liable for damages caused by road defects of this
type, the claimant must prove that respondent had actual or constructive notice
of the existence of the defect and a reasonable amount of time to
W.Va.] REPORTS
STATE COURT OF CLAIMS 69
correct it. Davis vs. Dept. of Highways, 11 Ct.Cl. 150 (1976). The
evidence indicated that there as no warning of any problems with the water and
rock. The Court must, therefore, deny the claim.
Claim disallowed.
OPINION ISSUED DECEMBER 7, 1988
STEPHANIE R. SHORT
VS.
DEPARTMENT OF EDUCATION
(CC-88-253)
No appearance by claimant.
Janet F. Steele, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondents Answer.
Claimant seeks $210.00 for reimbursement of tuition for courses taken by
claimant for the renewal of her teaching certificate. The grades for the two
courses were necessary for claimant to complete the reimbursement request for
tuition grants for certificate renewal. The deadline for reimbursement on
classes ending June 30, 1988, was July 15, 1988, but claimant did not receive
her grades by the deadline and did not submit the reimbursement request to
respondent within the proper fiscal year. Therefore, claimant has not been
reimbursed for the tuition expenses. The respondent admits the validity and
amount of the claim and states that there were sufficient funds expired in the
appropriate fiscal year from which the claim could have been paid.
In view of the foregoing, the Court makes an award in the amount sought.
Award of $210.00.
OPINION ISSUED DECEMBER 7, 1988
XEROX CORPORATION
VS.
70 REPORTS STATE
COURT OF CLAIMS [W.Va.
DEPARTMENT OF CORRECTIONS
(CC-88- 14 1)
No appearance by claimant.
Janet F. Steele, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant seeks $699.35 for supplies for copy machines provided respondent State
agency. The respondent admits the validity and amount of the claim and states
that there were sufficient funds in respondent’s budget for the appropriate
fiscal year with which the claim could have been paid; however, the respondent
was not able to make payment as the State Auditor returned the transmittal to
the respondent with the explanation that the Treasury of the State of West
Virginia lacked sufficient funds to process the transmittal.
The Court has reviewed the petition and the answer and finds that the State
agency had sufficient funds within its appropriated budget to pay the claim,
and, for this reason, the claimant is entitled to an award from the respondent.
In view of the foregoing, the Court makes an award in the amount of $699.35.
Award of $699.35.
OPINION ISSUED DECEMBER 8, 1987
JERRY R. COOPER
VS.
DEPARTMENT OF HIGHWAYS
(CC-84-263)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
W.Va.] REPORTS
STATE COURT OF CLAIMS 71
Claimants son, Gary R. Cooper, was operating claimants 1978 Ford Fiesta
automobile in a westerly direction on Route 60 in front of the East Hills Mall,
on September 17, 1984, at approximately 9:00 p.m. when the automobile struck
the concrete median at that location. The impact with the median resulted in
the car being totalled. Gary R. Cooper originally filed the claim with both
himself and his father, Jerry R. Cooper, as claimants. The claimant, Jerry R.
Cooper, is the sole owner of the automobile; therefore, the Court, on its own
motion, amended the style of the claim designating Jerry R. Cooper as claimant.
Claimant seeks $1,176.00, which amount represents the replacement value of the
automobile.
Gary R. Cooper testified that, at the time of the incident, it was dark, clear,
and dry. He was accompanied by Mike Gwinn, a friend. He was proceeding at
between 35 and 40 mph to Huntington. He stated that there is a left turn
lane into the east Hills, Mall. The yellow line which is indicative of the left
turn lane had not been removed when a new concrete median was erected. The
former yellow markings followed into the median. Therefore, the left side of
the automobile which Gary R. Cooper was operating struck the median. He
described the concrete median as being an island. He indicated that the median
is approximately six inches tall and two to three feet wide.
He further testified that he had driver this route three weeks to a month
before this incident. At the time of this incident, there were no warning
signs. He stated that his vehicle was 25 to 30 feet away from the median
when he first noticed the division of the lane. The automobile veered away from
the median, but failed to avoid it. He stated that he assumed that respondent
erected the new median, although he has no independent knowledge of that fact.
Mr. Barry Warhoftig, a civil engineer with the Traffic Engineering Division of
respondent, testified that the change in the traffic median was being
constructed by the Red Roof Inn, or Crown American Corporation, under permit
with respondent. He stated that he was not familiar with the specific permit,
but there is a bond associated with it. He did not prepare the permit.
This Court has held in the past that if the record establishes that n
independent contractor was engaged in the construction work, the respondent
cannot be held liable for the negligence, if any, of such independent
contractor [Paul vs. Dept. of Highways, 14 Ct.Cl. 479 (1983); Harper
vs. Dept. of Highways, 13 Ct.Cl. 274 (1980); Safeco Ins. Co. vs. Dept.
of Highways, 9 Ct.Cl. 28(1971)].
Claim disallowed.
ADVISORY OPINION ISSUED DECEMBER 8, 1987
SECRETARY OF STATE
72 REPORTS STATE
COURT OF CLAIMS [W.Va.
VS.
DEPARTMENT OF EDUCATION
(CC-87-432)
No appearance by claimant.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegation.s in the Notice
of Claim and respondent’s Answer.
Claimant seeks $43.10 for copies of Level IV decisions from the West Virginia
Education Employees Grievance Board which were furnished by the Administrative
Law Division of the Secretary of State. The invoice for the copies has not been
paid. The respondent admits the validity and amount of the claim and states
that there were sufficient funds in respondent’s budget for the appropriate
fiscal year with which the claim could have been paid; however, the respondent
was unable to make payment as the State Auditor returned the intra-governmental
transmittal to the respondent with the explanation that the Treasury of the
State of West Virginia lacks sufficient funds to process the transmittal.
The Court has review the petition and Answer and finds the State agency had
sufficient funds within its appropriated budget to pay the claim and, for this
reason, the claimant is entitled to an award from the respondent.
As this is a claim between two State agencies, the Court makes an advisory
award in the amount of $43.10.
OPINION ISSUED DECEMBER 8, 1987
LARRY C. SPENCE
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-284)
Claimant appeared in person.
Nancy I. Aliff, Attorney at Law, for respondent.
PER CURIAM:
W.Va.] REPORTS
STATE COURT OF CLAIMS 73
Claimant seeks $159.44 for damage to his 1984 Ford Ranger pickup truck. His
vehicle struck a hole on 1-64 between the Winfield and St. Albans interchanges,
at a bridge that goes over Rocky Step Road. The accident occurred on July 15,
1986 at approximately 6:20 a.m.
Claimant testified that at the time of the accident it was dark. He was
proceeding at a speed of 50-55 mph. He drives this route five days a
week. The hole was not present on the day previous to this accident. He
reported the accident at 8:30 a.m. He was informed by respondent’ s
representative that the hole had been reported between the time claimant had
the accident and the time that claimant called. The hole was repaired the next
day.
The evidence in this record indicates that the dangerous condition appeared
suddenly and that the respondent moved promptly to take safety precautions as
soon as it became aware of the problem. Moore vs. Dept. of Highways, CC-85-153
(February 19, 1986). Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947),
holds that the State is neither an insurer nor a guarantor of the safety of the
motorists on its highways. The Court is of the opinion that negligence on the
part of the respondent has not been established and, therefore, the Court
denies the claim.
Claim disallowed.
OPINION ISSUED JANUARY15, 1988
THE LANE CONSTRUCTION CORPORATION
VS.
DEPARTMENT OF HIGHWAYS
(CC-82- 164)
Thomas E. Potter and Thad S. Huffman, Attorneys at Law, for claimant.
Anthony G. Halkias, Attorney at Law, for respondent.
GRACEY, JUDGE:
Claimant, The Lane Construction Corporation, herein presented a claim against
the respondent, the West Virginia Department of Highways, for damages in
connection with construction of 6.963 miles of the Highland Scenic Highway,
also known as West Virginia Route 150, in Pocahontas County. The alleged
damages are generally itemized as follows:
1977 Fill Bench Delay $814,580.19
1979 Slide Delay 102,577.22
1980 Costs 1,062,187.70
74 REPORTS STATE
COURT OF CLAIMS [W.Va.
1980 Escalation for Paving 10,116.30
$2,079,461.41
The contract was advertised for bids as a “Federal Aid Project HSH-1(1).”
Claimant submitted the lowest bid, in the amount of $11,467,571.20 and was
awarded the contract on May 14, 1977. The project was through the Monongahela
National Forest, heavily wooded, rugged terrain, all high in the mountains. It
ran from its westerly end, about two miles east of the Williams River, at
Station 822, to its easterly end at Station 1189 + 59 at Route 219. To the south was the Edray Fish Hatchery. To the north
was the headwaters of the Elk River. The climate conditions were variable and
severe, much rain and cold, limiting the length of a construction season. The
environmental considerations posed limitations. Timber cut in clearing the
right of way was required to be hauled out of the project area, not wasted.
Under Section 642.3.2 of the contract Supplemental Specifications, limitations
as to the area of clearing and grubbing and excavations were clearly spelled
out.
To provide a positive guide in this are no more than 750,000 square feet each
of erodible soil will be exposed as a result of (1) clearing and grubbing and
(2) excavation, embankment, borrow or waste for a maximum cumulative total of
1,500,000 square feet without the approval of the Engineer. Approval to proceed
beyond this point will be contingent upon (1) the Engineer’s satisfaction,
based on performance, as to the Contractor’s ability to proceed with his
operation and yet maintain pollution control at the level contemplated by this
special provision, and (2) Seeding and Mulching of disturbed areas at the
Contractor’s expense.”
The Claimant’s Contractor’s Proposal, and the resulting contract, called for
completion of the project by June 30, 1980. At the pre-construction conference,
held on May 3, 1977, the claimant presented its intended schedule for
construction. The claimant anticipated completing the project in 1979. Upon
cross examination, Byron F. Wetmore, claimant’s Executive Vice President,
conceded that “...
we thought we would have to have relief on
that 1,500,000 square feet.” The contemplated schedule called for commencement
of this work on the project, nearly seven miles, by the end of July, 1977. “We
realized there was a restriction in the specification and hoped we could
overcome it.” What made him think he could overcome such a restriction? “We’ve
had it before and have overcome it.” He also admitted that he had learned
that some of the people that had constructed some of the earlier work had gone
broke trying to finish work that took them two or three years longer than they
anticipated to do it.”
The claimant’s intended construction schedule also showed project excavation
work to begin June 1, 1977, and the construction work continuing through a 1977
construction season ending November 15. By Stipulation, the parties agreed that
project excavation work began June 27, and Wetmore conceded that claimant
closed down the job, for the winter, on about October
16th or 17th. “The weather was of such magnitude at that time that we could not
work after
W.Va.] REPORTS
STATE COURT OF CLAIMS 75
October 15.” Thus, the 1977 construction season was somewhat shorter than the
claimant had planned.
Generally, this project was a cut and fill type operation. The respondent had
provided the plans showing the levels at which rock might be found. Claimant
was required to excavate to the rock level, then fill, over the rock, with
select rock material for drainage, and with earth and rock back to the desired
grade. Most of these fill benches were in the easterly half of the project.
Also, the respondent had indicated the rock quarry location as being just
easterly from a forest road which could provide contractor access to the
project at about Station 982, early the mid-point of the project. For several
reasons, the claimant elected to begin construction at that mid-point. Weight
limitations denied use of Route 39 as access to the westerly end of the
project. Claimant would need rock, in the fill bench operations, and the rock
quarry was shown as being at Stations 980-988, not conveniently accessible had
the excavation work been started at Route 219, the easterly end of the project.
As it turned out, that rock quarry was not satisfactory, and rock had to be
hauled from another quarry further east. The claimant’s plan was to do the more
difficult easterly half of the project first. Then, as paving was progressing
westerly from Route 219, the excavation and grading work would be progressing
from that mid-point westerly, to the westerly end of the project, readied for
paving when the paving reached that mid-point.
Not long after the excavation work began, the claimant began to find that the
rock was not at the elevations shown on the plans, and in some cases, the rock
was not a hard, firm rock base, but soft shale. The first such experience was
one where the rock was at a higher elevation than shown. Subsequent excavation
areas proved rock at lower elevations than shown. There were about six such
areas. In each case, when the indicated elevation was reached, and rock was not
found, a few more feet were excavated at respondent’s direction. Mr. Wetmore
conceded that it is not uncommon to run into such circumstances in the field.
However, he added, “The normal reaction is that usually it is done on a
continuing basis as differences are found. Normally, decisions are made quickly
as to where the elevations are to be established and the redesigns are done, if
you will, on a piecemeal basis sometimes, which allows the work to be
progressed.”
Respondent’s alleged delay in making decisions and giving the claimant
redesigns is the basis for claimant’s 1977 Fill Bench Delay claim in the total
amount of $814,580.19. Of this total, $709,473.65 appears to be for idled
equipment. $72,800.00 is for stockpiling fill bench materials, for having to
move such materials twice instead of once. $9,219.00 is for salaried idle
supervisory personnel. $32,306.54 is for higher labor cost for work done in the
1978 and 1979 seasons instead of, as planned, in the 1977 season. The evidence
was conflicting as to the length of the delays with reference to the problem
areas. Mike O’Neil respondent’s geologist, was notified on August 4 and came to
the sight on August 8. On August 19, respondent began bore drilling under his
direction. There was conflicting evidence as to whether the several sites were
bore in a progressive order of priority requested by claimant, but it was
apparent that the presence of the drilling rig caused problems for the
claimant. According to O’Neil, as a solution and redesign was accomplished, in
a few days in most instances, the claimant was furnished with
76 REPORTS STATE
COURT OF CLAIMS [W.Va.
a temporary redesign and, within a day or so thereafter, was formally furnished
with the redesign plan. Claimant contends that the respondent was not that
prompt; that the delays varied from 3.4 weeks to 9.3 weeks; that the redesign
on the Station 1090 area, representing 120,000 cubic yards of material, was not
presented until April 13, 1978, 35.5 weeks after the respondent was
notified of the problem on August 6, 1977, but one must remember that weather
closed down the project for the winter on about October 15, 1977, until
claimant resumed work in April of 1978. Of course, the respondent had no
control over the kinds and numbers of items of equipment the claimant brought
to the job, or kept there from time to time. It seems a fair conclusion that
more equipment was on the job site, in the claimant’s desire and intention to
complete the contract by the end of the 1979 season, that if the claimant had
planned for use of the full time allowed for completion, to June 30, 1980.
Claimant contended that, at the end of the 1978 construction season, claimant
was near to being back on its own schedule for the project and intended to
finish the project by the end of the 1979 construction season.
As the 1979 construction season began, slips and slides over the previous
winter months were apparent in the westerly half of the project area. Claimant
presented evidence that respondent was dilatory in providing redesigns for
these slide areas. One potential slide area, at Station 965, just west
from the center of the project, was noted by claimant about May 19 and brought
to the respondent’s attention. By September 5, when Hurricane David rains
caused a “catastrophic slide” there, the respondent had still given no
direction. Of course, this slide limited claimant’s access westerly. Claimant’s
listing of its 1979 damages begins as of September 6 and continues through
September 29, and is wholly for idled equipment in the amount of $102,577.22.
Except for the occurrence of that slide, claimant contends it would have
finished the project in six or seven weeks, before the end of the 1979
construction season. A slide design correction was supplied on September 26.
Clearing the slide took about five or six weeks, and claimant was paid under
force account for that work. The project was closed down for the winter on
November 30. Claimant’s contention is that the September 5 slide, and the
resulting delay, would not have occurred had the respondent taken timely action
with reference to how the area at Station 965 was to be stabilized after it was
brought to the respondent’s attention about May 19.
Thus, the claimant claims the excess of its 1980 costs. At the contract price,
claimant was paid $233,396.00 for the contract work done in 1980, this being
$1,062,187.70 less than its listing of actual costs.
Also, claimant’s paving subcontractor, Pocahontas Construction Company, was
only committed to its bid or subcontract prices to June 30, 1980, the date the
contract was required to be completed. For paving work after that date, higher
prices had to be paid by the claimant in the excess amount of $100,116.30.
Throughout the presentation of this case, it was emphasized that the claimant
was fully paid for the expected contract work at the contract prices and was
fully paid through change
W.Va.] REPORTS
STATE COURT OF CLAIMS 77
orders and force account, for extra excavation, obtaining rock from an
alternate quarry area and for slide correction. No liquidated damages were
assessed for the delay in completion, for the period from July 1 to October 9,
1980.
From all of the evidence, it appears to the Court that the claimant did suffer
some delay and idling of some equipment while fill benches were being
redesigned. With reference to the slide at Station 965, it was under
observation and study from May 5, 1979, with a temporary correction for
by-pass, until the slide occurred on September 5. The Court refuses to
find the respondent responsible for the occurrence or consequences of that
slide. The claimant was awarded the additional force account work of correcting
the slide and no liquidated damages were assessed for the extra time used to
complete the contract.
The Order entered by this Court on February 28, 1983, is hereby set aside.
Upon due consideration of all the evidence presented, and in equity and good
conscience, the Court makes an award to the claimant in the amount of
$322,241.52
In accordance with the provisions of West Virginia Code § 14-3-1, interest at 6% per annum is calculated on this
award based on the final acceptance date of the project of October 9, 1980.
Interest is allowed from the one hundred and fifty-first day after the date of
final acceptance, March 8, 1981, until the issuance date of this opinion,
January 15, 1988.
Award of $322,241.52 with interest in the amount
of $132,690.00, for a total award of $454,931.52.
Judge Hanlon did not participate in the hearing or decision of this case.
*The West Virginia Legislature did not include the payment of this claim in the
1988 Claims Bill as the project was a ‘Federal Aid Project”.
OPINION ISSUED JANUARY18, 1988
LINDA RODEHEAVER AND
VON RODEHEAVER
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-340)
Richard K. Wehner, Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
78 REPORTS STATE
COURT OF CLAIMS [W.Va.
PER CURIAM:
On July 10, 1986, claimant Linda Rodeheaver. accompanied by her husband, Von
Rodeheaver, was driving their recently purchased 1986 Mercury Cougar on Route 1
19/3,Monongalia County, when the vehicle struck a pothole Two wheels, two tires
and two beauty rings were damaged in the amount of $601.83.
Claimant Linda Rodeheaver testified that she was travelling at approximately 35
mph at the time of the accident. The road is a two-lane roadway, but it is
narrower than normal. She had not observed the hole prior to this accident. The
record indicates that the hole extended from the white edge line into the
highway. It was located at the end of a driveway of a private residence. She
drove this route infrequently. She reported the incident the next day to
respondent’s office in Kingwood. Respondent’s representative at Kingwood
admitted that respondent was aware of the existence of this particular hole.
The respondent had actual notice of the defect in the roadway. The respondent
failed to adequately maintain the roadway and, the Court, accordingly, finds
that respondent was negligent. In view of the foregoing, the Court makes an
award in the amount of $601.83.
Award of $601.83.
OPINION ISSUED JANUARY18, 1988
S. J. GROVES & SONS COMPANY
VS.
DEPARTMENT OF HIGHWAYS
(CC-82-295)
AND
S. I. GROVES & SONS COMPANY, FOR THE BENEFIT
OF ATLAS MACHINE AND IRON WORKS, INC.
VS.
DEPARTMENT OF HIGHWAYS
(CC-83-233)
Stanley E. Deutsch and William W. Lanigan, Attorneys at Law, for claimants.
Robert F. Bible, Attorney at Law, for respondent.
HANLON, JUDGE:
W.Va.1 REPORTS
STATE COURT OF CLAIMS 79
Claimant S. J. Groves and Sons Company (hereinafter referred to as Groves), a
Minnesota based general contractor, entered into a contract with respondent on
January 10, 1979, for the construction of two bridges, designated Project
Numbers APD-323 (69) and APD-323 (59). Groves also entered into a
contract with respondent on March 29, 1979 for the construction of a third
bridge, designated Project Number ID-77-2 (49/64). These projects, known as the
Mingo County Bridge, the Kanawha County Bridge, and the Fayette County Bridge,
respectively, are the subject of these claims. On June 13, 1983, Dallas A.
Wolferd, Vice President of Groves, executed an assignment of its rights to
pursue the claims before this Court to Atlas Machine and Iron Works, Inc.
(hereinafter referred to as Atlas), the structural steel fabricator for these
projects. The work on the projects was done in Gainesville, Virginia. The
original amount of the claim was amended to $2,440,013.00 at the hearing.
The following documents were placed in evidence by written stipulation of the
parties:
Part 2 of the general Plans of Construction.
Standard West Virginia Department of Highways Standard
Specifications Roads and Bridges (1978).
Supplemental Specifications (January 1, 1979).
1973 publication of Steel Structures Painting Manual.
Atlas alleges that due to factors within the control of respondent, it
experienced severe cost overruns, substantial increase in the main hours
expended on these projects, and that it incurred expenses in excess of the
increased costs.
Werner H. Quasebarth, President of Atlas, testified that Atlas is a structural
steel fabricator which was founded by his father in 1930. In addition to
approximately 30 bridges in West Virginia, it fabricated the steel for projects
in Georgia, South Carolina, North Carolina, Virginia, District of Columbia,
Maryland, Delaware, New Jersey, Pennsylvania, New York, Connecticut,
Massachusetts and Ohio.
There were approximately 300 steel girders to be fabricated by Atlas in the three
projects which are the subject of these claims. The typical girder to be
fabricated for these projects averaged 100 feet in length, 5 feet deep and
weighed approximately 10 tons. One of the major elements in fabricating steel
girders involves surface preparation.
During the process of surface preparation, the fabricator removes mill scale
that has oxidized on the girder when the steel was rolled into the girder form.
To remove the mill scale, the girder is placed in a Wheel-a-brator which
propels shot at the girder to remove the mill scale uniformly. The respondent’s
Standard Specfications Road and Bridges, Adopted 1978 provides
80 REPORTS STATE
COURT OF CLAIMS [W.Va.
a near white surface specification. Atlas was required to achieve a near white
surface on each girder. Atlas considered the interpretation of “near white by
the respondent to be too stringent. Atlas attempted to achieve the results
desired by the respondent by preblasting and reblasting girders. Quasebarth
explained that the reblasting required caused production problems of the Atlas
fabrication plant. There was a continual stoppage of steel members in an
attempt to satisfy the requirements of respondent’s inspectors assigned to
these projects.
He stated further that it is normal practice to break the corners on the
flanges of the steel girders, but Atlas was required by the inspectors on the
project to radius the edges on the flanges. Hackles, which are small spurs of
steel that penetrate the coating of the paint, also created a problem,
according to Quasebarth. Other problems arose from interpretation by the
inspectors of overspray or dry spray. There were difficulties in getting
orderly inspection done. All of these problems backed up not only the project
that was being completed, but it also created a backlog of steel being stored
at the Atlas foundry. The work at Atlas from January 1980 through August 1980
was related to fabricating steel for these projects and comprised 50 percent of
Atlas work during this period of time.
Once the girder has completed the surface preparation process, the girder is
then spray painted with an inorganic zinc paint. The girder is inspected at
this point for proper thickness of the paint. On this project, a 4 mil
thickness of paint was required. Where the inspectors determined that overspray
or dry spray occurred on the girder. Atlas was required to either reblast or
hand sand the areas of overspray. This became a major problem for Atlas.
Atlas also alleged problems occurred during the process of breaking the edges
on the flanges of the steel girders. Normal practice in the industry is to
brake the edges. Atlas contends that it was required to grind the edges so that
the edges were radiused. This hand work required many man hours of time. The
respondent contends that the inspectors on the problems never required Atlas to
radius the edges. The respondent did expect the edges to be broken and the burr
or sharp edge removed.
Another area which caused considerable concern on the part of Atlas was the
requirement to remove mill scale in the snipes. Snipes are areas on the inside
corners of the flanges. Atlas contends that it was required to hand blast each
snipe area in a girder in order to remove the mill scale. The inspectors were
using flashlights, dental mirrors, and magnification glasses to determine if
the snipes contained mill scale. It was then necessary to hand blast every
snipe area in a girder to achieve the surface preparation being required by the
respondent’s inspectors. As a result of this problem, there was a meeting held
on March 19, 1980.
At that meeting, Bill Shuler, a chemist with respondent, agreed that the snipe
mill scale was not detrimental and did not have to be removed. However,
personnel at Atlas were not notified until May 1, 1980, that a decision had
been made regarding this problem. During the interim period, however, claimant
was required to expend extra labor for the removal of the mill scale in all of
the snipe areas on the girders.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 81
In order to attempt to maintain a work schedule to meet the respondent’s
requirements for steel fabrication, Atlas started working weekends, and then a
third shift. Atlas paid for the extra work. Men were idle waiting for decisions
to be made on inspected items. This resulted in extra costs to Atlas.
Dr. Felix Konstandt, President and Technical Director of Konstandt
Laboratories, Inc., testified that his firm is engaged in the testing,
evaluation and development of coatings and paints. He stated that he uses the
Swedish standard in terms of evaluation and painting and that the Steel
Structure Painting Counsel is the American equivalent of the Swedish Academy.
Dr. Konstandt explained that there are three separate standards of cleanliness
imposed by the Swedish standards. Sa 3 is a white metal blast. Sa 2 1/2 is a
near-white blast and Sa 2 is a commercial blast. He stated that a near-white
blast permits five percent of impurities to be present on the overall surface
of the steel.
He further explained that it is necessary to clean the steel as the paint has
to be applied to clean surfaces. Paint is applied to the steel to prevent
corrosion of the steel. His definition of “a near white blast” permits 5
percent of impurities to be present on the over all surface. He described
hackles or slivers as impurities that are formed on the steel or have been
formed on the steel during fabrication and stated that it is practically
impossible to achieve 100 percent removal of all mill scale on standard job
sites. 1-le testified that he read the West Virginia Specifications. In his
opinion the provisions in these Specifications are more stringent than the
specifications normally required in the industry.
Common problems which occur during the painting operations include pinholes,
sags and overspray or dry spray. Dr. Konstandt indicated that there is no
mention made of dry overspray in any painting specification on structural
steel. In his opinion the reblasting which results from the removal of the
overspray does some injury to the surface of the steel. He also testified that
the industry did not consider overspray to be a defect or a flaw in the
fabrication of steel girders.
Charles F. Jarrard, Jr., consultant to the fabrication industry, testified as
an expert for Atlas. He has been involved with the fabrication of approximately
50,000 tons of steel for the State of West Virginia. He stated that surface
preparation of the steel is generally outlined in the State Specifications and
that the majority of states today reference the Steel Structures Painting
Council. This Council references the Swedish Standard. He testified that if
there was a disagreement over what was being produced, hopefully, there would
be a meeting of the minds within the plant and the problem would be resolved.
He mentioned that generally, the fabricator gives up because he needs the cash
flow.
His experience with West Virginia goes back to 1959 or 1960. He stated, “In
plain words, cleaning and painting was a bigger problem in West Virginia, than
probably any other state that I have worked in,”. Jarrard testified that he
does not know of any requirement imposed by the specification to remove
overspray. “I believe that removal of all overspray is unrealistic and
impractical.” He also said that regarding hackles, West Virginia took the
position that you had
82 REPORTS STATE
COURT OF CLAIMS [W.Va.
to get the profile back. This did not occur in any other state. A girder is
placed back in the blasting unit to create the profile. Then, it is reblasted.
A girder could be blasted as many as seven times. In the industry, it is normal
and customary to break edges, certainly on flanges.
In discussing the Standard Specifications of West Virginia in comparison with
other states, he stated, “I guess because I’ve done so much West Virginia work,
I don’t really feel they’re that much more stringent than anybody else.”
The position of Atlas in this claim is that the inspectors for the respondent,
who were assigned to inspect the steel being fabricated for these three projects,
imposed standards upon Atlas which were not a part of the Standard
Specifications. The standards imposed upon Atlas were alleged to be beyond what
custom and usage would normally dictate and were outside the scope of the
specifications in the contract.
The consensus of the opinion of respondent’s employees was that all mill scale
had to be removed from the surface of the steel. This was the standard applied
on these projects.
The respondent’s Stan&ird
Specfications provides for surface
preparation as follows:
§615.6.4 - Surface Preparation: All structural steel surfaces
shall receive a very thorough blast (near white) cleaning prior to painting.
Mill scale, rust, weld spatter and foreign matter shall be removed to the
extent that the only traces remaining are slight stains in the form of spots or
stripes. The appearance of the steel surface after very thorough blast cleaning
shall correspond with the following pictorial standards: A Sa 1 1/2, B Sa 2
1/2, C Sa 2 1/2, or D Sa 2 1/2 of SSPC-Vis 1
Blast cleaning operations shall be done in such a matter that no damage is done
to partially or entirely completed portions of the work. After blast cleaning,
any areas which are repaired by welding shall be blast cleaned. Areas repaired
by grinding or other means shall have the anchor pattern restored by blast
cleaning, or as directed by the Engineer...
The interpretation of this specification created the problems as to surface
preparation of the steel girders. The respondent employed Pennsylvania Testing
Laboratories to provide inspectors on the project. The inspectors followed the
directions of respondent’s employees in requiring the removal of all mill scale
on the girders.
The respondent contends that its inspectors applied the Specifications in the
same manner as they would have applied them in any fabrication of steel
project. The Standard Specifications required a “near white blast.” According
to the position of Atlas a “near white blast” does not
W.Va.] REPORTS
STATE COURT OF CLAIMS 83
mean the removal of all “mill scale”. The respondent’s position is that the
interpretation of “near white” means the removal of “all mill scale”. The
specification provides that “Mill scale.. .shall be removed to the extent that
the only traces remaining are slight stains in the form of spots or stripes.’
It is the opinion of the Court that the inspectors were following the dictates
of the respondent’s Specifications in requiring Atlas to remove all mill scale
from the surface of the fabricated steel. Therefore, Atlas is not entitled to
the extra costs for work which resulted from this requirement by the
respondent’s inspectors.
As to the second problem which caused considerable concern on the part of Atlas
involving the application of inorganic zinc paint to the fabricated steel, the
Court has determined that there is merit to Atlas’ contention that the
inspectors were unreasonable in interpretation of the project specifications
for dry spray or overspray of the paint. The paint was furnished by Mobile in
accordance with the respondent’s specifications. The specifications required a
4 mu coat. It was necessary for Atlas to reblast steel girders in an attempt to
satisfy the inspectors. Atlas also resorted to using manual labor in removing
the overspray which resulted in many hours of extra labor costs. The respondent
contends that excessive paint overspray must be removed in order to avoid
problems with the application of field paint.
While bridge inspectors from West Virginia appear to be more strict in their
inspections on projects, the Court considers this adherence to quality
standards to be reasonable in light of the failure of the Silver Bridge at
Point Pleasant, West Virginia, which occurred in December 1967, and, in finding
some liability in this claim, we are in no way inferring criticism of the
respondent or its inspection in this regard.
It is the opinion of the Court that respondent s inspectors were conscientious
in their interpretation of the Specifications applying to overspray or dry
spray of the paint. Accordingly, Atlas was required to perform some extra work
for this item. It is the opinion of the Court, however, that Atlas is not
entitled compensation for this work.
As to the problem of the radius on the edges versus broken edges on the flanges
of the steel girders, the Court is of the opinion to disallow this item. The
evidence is clear that Atlas performed this extra work on the edges of the
flanges on its own accord rather than at the insistence of respondent’s
inspectors.
The problem with the removal of mill sale in the snipes of the steel girders
did cause Atlas to incur costs for extra work performed in an attempt to
satisfy the standards being applied by the respondent’s inspectors. The Court
is of the opinion that the respondent’s employees failed to adequately and
timely advise Atlas of its decision regarding the removal of mill scale in the
snipes on the steel girders. This failure caused extra labor costs for
claimant. Therefore, the Court makes an award in the amount of $217,259.56 for
labor costs for the extra work performed during
84 REPORTS STATE COURT OF CLAIMS [W.Va.
the specific time
period as indicated heretofore in the opinion to S. J. Groves and Sons Company,
for the benefit of Atlas Machine and Iron Works, Inc.
Award of $217,259.56.
OPINION ISSUED JANUARY18, 1988
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, AS SUBROGEE OF VERNON MARCUM, JR.,
AND VERNON MARCUM, JR., INDIVIDUALLY
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-201)
Robert 3. Louderback, Attorney at Law, for claimants.
Nancy I. Aliff, Attorney at Law, for respondent.
HANLON, JUDGE:
On March 24, 1986, at approximately 6:45 am., claimant s insured was travelling
easterly on Interstate 64 in the vicinity of Kenova, Wayne County, when his
vehicle, a 1985 Ford Ranger truck, struck an expansion joint which was sticking
up perpendicular to the surface of the highway. Claimant State Farm Mutual
Automobile Insurance Company seeks $1,611.25 for the damage to the vehicle.
Claimant Vernon Marcum, Jr. seeks $100.00 as his deductible. The claim was
initially filed incorrectly, and upon claimant’s motion, the Court amended the
style of the claim to reflect its status as a subrogation action in part.
Claimant Vernon Marcum, Jr. testified that he had travelled this particular
route for approximately eight years on a daily basis. The weather on the day in
question was dry and clear, and he was travelling at approximately 55 miles
per hour. His vehicle approached the bridge on Interstate 64 and encountered
the expansion joint, whereupon the damage occurred to the vehicle. He stated
that the joint would “pop up,” and that at least two other vehicles had
difficulty with the expansion joint at the scene of his accident, in the time
span of approximately 30 minutes. He did not report the presence of the broken
expansion joint, although he had observed it for approximately three weeks
prior to this incident. He stated that his automobile had been making a louder
than usual noise when he drove over the expansion joint for that period of
time.
Mr. Terry Hazelett, Welding Crew Foreman for respondent at the time of this
incident, testified that he was notified of a problem with an expansion joint
on March 24, 1986, at approximately 7:30 a.m. He and a crew then went to repair
the expansion joint.
W.Va.j REPORTS
STATE COURT OF CLAIMS 85
Mr. Wilson Braley, District 2 Bridge Engineer for respondent, testified
that he is familiar with the particular expansion joint on this bridge. Prior
to March 24, 1986, he had not received any complaints with regards to this
particular expansionjoint. He had no reason, prior to the date of this
incident, to believe that this joint would fail.
Interstate 64 is a heavily travelled, major highway. The evidence in this claim
established that the hazardous condition had existed for some time before this
accident. See Davis Auto Parts vs. Dept. of Highways, 12 Ct. Cl.
31(1977). The Court finds that there was actual notice on the part of the
respondent, and hereby makes the following awards to the claimants.
Award of $1,611.25 to State Farm Mutual Automobile Insurance Company.
Award of $100.00 to Vernon Marcum, Jr.
OPINION ISSUED JANUARY 18, 1988
CLIFFORD B. STOVER, ET AL.
VS.
DEPARTMENT OF LABOR
(CC-86-354)
No appearance by the claimants.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
This is a claim by the former employees of Chafe Mining, Inc., to recover
certain wages to which they would be entitled under the purview of W.Va. Code
Chapter 21, Article 5, Section 14, the ‘Wage Bond Statute.”
The Wage Bond Statute requires certain employers engaged in the production of
coal to post a bond equal to the total of the employer’s gross payroll for four
weeks, plus fifteen percent of said total, with the Commissioner of Labor. In
the event that an employee does not receive his or her wages and benefits when
due, then that employee may recover amounts owed through an attachment against
the wage bond.
On December 1, 1981, Telesystems Management and Technical Service Corporation
recorded a Uniform Commercial Code Financing Statement with the Raleigh County
Clerk. This document granted Telesystems a security interest in certain mining
equipment which it had sold
86 REPORTS STATE
COURT OF CLAIMS [W.Va.
to Chafe. An identical U.C.C. form was filed with the West Virginia Secretary
of State on December 2, 1981.
On September 20, 1982, the West Virginia Commissioner of Labor was advised by
the Attorney General of West Virginia that W.Va. Code Chapter 21, Article 5,
Section 14 prohibits the acceptance of collateral for a wage bond.
On September 23, 1982, the Department of Labor accepted the Chafe Mining
equipment as collateral for the wage bond in the amount of $115,000.00.
On March21, 1985, Chafe Mining filed a Chapter 11 bankruptcy and in November 1985,
closed its mining operation in Raleigh County.
The evidence establishes that at the time the Department of Labor accepted the
equipment for the wage bond, Telesystem had a perfected security interest in
the equipment.
As a result of a settlement agreement dated June 10, 1986, the West Virginia
Department of labor received $2,000.00 for its claim on the equipment that was
the subject matter of the wage bond. This left $113,000.00 outstanding, which
should have been available to the Chafe Mining employees.
It is obvious that the purpose of the wage bond statute has failed in this
instance as a direct result of the actions of the State agency charged with
enforcing it.
The Department of Labor accepted an equipment bond after being advised that
they were improper. More importantly, the Department accepted equipment subject
to a superior lien, a lien which had been duly recorded.
The Legislature, in passing W.Va. Code Chapter 21, ArticleS, Section 14 was
attempting to protect employees from fly-by-night companies who cease business
owing employees unpaid wages. It would be unconscionable for the State to allow
the neglect and oversight of its employees to thwart the intent of the Act.
It is, accordingly, the opinion of the Court that the negligence of the
Department of Labor caused the claimants to lose the benefit of the provisions
of W.Va. Code Chapter 21, Article 5, Section 14, and an award in the amount of
$113,000.00 is hereby made.
Award of $113,000.00 to be made to the following named persons in amounts
indicated:
James Boggs $1,184.00
Floyd Bowyer $3,336.00
Richard Bryant $2,285.00
Timothy Cook $41,418.00
W.Va.] REPORTS
STATE COURT OF CLAIMS 87
Charles Cox $1,684.00
Raymond Deip $165.00
Dennis Divers $4,250.00
Ronnie Evans $1,142.00
Charles Fisher $2,662.00
Walter Fletcher $1,275.00
James Gray $7,925.00
Lowery Jennings $1,634.00
Barry Lilly $1,618.00
James Martin $7,414.00
Kenneth Meador $4,545.00
Archie Milam $3,690.00
Jackie Milam $554.00
Albert McMillion $2,689.00
Albert Murdock $1,268.00
Robert Nichols $1,463.00
Gary Prather $892.00
Leslie Sadler $1,676.00
Ronnie Snuffer $864.00
Clifford Stover $1,790.00
Lonnie Stover $605.00
Ernest Taylor $731.00
Ronnie Thompso $4,302.00
Joey Toler $1,251.00
Mark Tucker $1,947.00
C. J. Walker $1,608.00
David Watson $406.00
Aubrey Whitt $1,495.00
Fred Williams $1,403.00
Timothy Williams $1,829.00
OPINION ISSUED JANUARY18, 1988
LINDA THOMAS, ET AL.
VS.
DEPARTMENT OF HEALTH
CC-87-521 to CC-87-671
CC-87-679 to CC-87-687
CC-87-727 to CC-87-743
CC-88-6 to CC-88-16
88 REPORTS STATE
COURT OF CLAIMS [W.Va.
CC-88-22, CC-88-25
CC-88-30 to CC-88-32
No appearance by claimants.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
These claims were submitted for decision based upon the allegations in the
Notices of Claims and respondent’s Answer.
Claimants seek compensation for overtime compensation from Welch Emergency
Hospital, a facility of respondent, pursuant to the U.S. Department of Labor
Regulations for the time period of April 16, 1986 through April, 1987. The
claimants have not been paid for their services. The respondents admits the
validity and amount of the claims and states that there were sufficient funds
in the appropriate fiscal year upon which the claims could have been paid.
In view of the foregoing, the Court makes awards as follows:
Court of Claims Name of Amount of
Number Claimant
CC-87-530 Elsie Adams $267.24
CC-87-658 Karen Addair $346.39
CC-87-548 Luther Addair $691.01
CC-87-547 Merry Addair $610.00
CC-87-549 Nathan Adkins $705.59
CC-88-31 Mary Akers $306.44
CC-87-686 Anna Bailey $591.45
CC-87-550 Ardeen Bailey $346.44
CC-87-551 Clarissa Bailey $955.65
CC-87-682 Sylvia Bailey $3,037.14
CC-88-l3 William Bailey $493.40
CC-87-552 Wilma Bailey $484.95
CC-87-742 Sylvia Barrett $220.37
CC-87-536 Barbara Baylor $284.16
CC-87-655 Virginia Beaman $626.54
CC-87-553 Cheryl Beavers $6.16
CC-87-555 Helen Beheler $927.42
CC-87-532 Cynthia Bell $742.50
CC-87-554 Ronald Billings $3,050.51
CC-87-540 Sherri Birchfield $212.23
CC-87-633 Barbara Bishop $490.68
CC-87-545 Donald Bishop $660.99
W.Va.j REPORTS
STATE COURT OF CLAIMS 89
CC-87-541 Linda Bishop $456.56
CC-87-556 Jeannie Blankenship $641.63
CC-87-557 James Blizzard $292.26
CC-87-735 Martha Boggs $217.83
CC-87-731 Debra Bolen $786.51
CC-87-562 Naomi Box $628.95
CC-88-32 Howard Boyd $216.80
CC-87-669 SandraD.Brickey $114.53
CC-87-542 Mary Browning $774.98
CC-87-560 Edna Burks $419.88
CC-87-561 Nathaniel Burroughs $448.21
CC-87-544 Ethel Bush $436.71
CC-87-741 Lori Carter $349.29
CC-87-563 Lucille Carter $454.36
CC-87-565 Richard Carter $113.87
CC-87-564 Norma Cartwright $797.21
CC-87-558 Brenda Chatman $350.85
CC-87-559 Cheryl Chatman $572.14
CC-87-566 Alice Church $364.24
CC-87-569 Bennett Church $765.59
CC-87-533 Juanita Church $1,938.66
CC-87-652 Jerlene Coleman $777.24
CC-87-539 Myrtle Compton $928.78
CC-87-567 Leah Cook $568.90
CC-87-522 Patricia Cooper $911.76
CC-87-650 Helena Cox $443.83
CC-87-659 Paula Cox $686.79
CC-87-666 Izallier Dalton $328.57
CC-87-651 Shirley Dalton $54.99
CC-87-600 Evelyn Davis $292.77
CC-87-740 Judy Davis $185.87
CC-87-568 Helena Dawson $520.35
CC-87-570 Carol Day $1,579.75
CC-087-601 Drema Day $505.89
CC-87-571 Albert Deskins $175.64
CC-88-12 Andrea Donithan $389.11
CC-87-572 Charlie Edwards $320.79
CC-87-573 Robert Edwards $237.39
CC-87-589 Elizabeth England $335.25
CC-87-574 Virginia Evans $458.53
CC-87-526 Albert Falvo $397.54
CC-87-734 Diane Farmer $749.74
CC-87-543 Esther Farmer $465.60
90 REPORTS STATE
COURT OF CLAIMS [W.Va.
CC-87-534 Beverly Finney $850.73
CC-87-588 Rita Frasher $2,626.00
CC-87-575 David Gillenwater $44.80
CC-87-586 Earline Gillenwater $574.23
CC-87-587 Carolyn Gillespie $677.55
CC-87-576 Sylvia Goforth $507.99
CC-87-585 Sheryl Grant $160.91
CC-87-577 Loretta Green $657.20
CC-87-584 Patsy Green $517.04
CC-87-578 Francoise Guidi $181.06
CC-87-580 Karen Hale $126.13
CC-87-581 Henry Hall $344.38
CC-87-537 Ogie Handshoe $236.95
CC-87-579 Fred Hardee $1,199.52
CC-87-656 Janice Haynes $334.00
CC-87-685 William Heath $231.66
CC-87-582 Helen Hicks $289.82
CC-87-583 Barbara Hill $370.79
CC-87-599 Patricia Holland $414.96
CC-87-538 Rosetta Hopkins $422.98
CC-87-592 John Horton $233.08
CC-87-590 Rita Horton $1,182.76
CC-87-591 Regina Hudson $143.64
CC-88-10 Ellen Hurley $794.60
CC-87-593 Diana Jeffries $543.80
CC-87-684 Charles Jenks $387.18
CC-87-598 Nancy Johnson $342.01
CC-87-730 Thomas Johnson $262.16
CC-87-683 Vanessa Johnson $575.42
CC-87-687 John Jones $573.37
CC-87-733 Sandra Jones $63.42
CC-87-681 Nanci Jordan $331.32
CC-87-743 Denise Joyce $787.42
CC-87-668 Elizabeth Keen $948.43
CC-87-594 Frank Krajc $274.40
CC-87-595 Edward Lane $82.42
CC-87-596 Pamela Lane $675.48
CC-87-597 Phalanders Law $110.26
CC-87-529 Patricia Lawson $209.94
CC-87-612 Paul Ledford $61.86
CC-87-602 Beatrice Lester $278.98
CC-87-531 Carol Lester $670.60
CC-87-606 Carolyn Lester $603.94
W.Va.j REPORTS
STATE COURT OF CLAIMS 91
CC-87-603 Darcus Lester $904.44
CC-87-662 Dennis Lilly $550.80
CC-87-653 Ruthie Lipscomb $531.27
CC-87-604 Patricia Lockhart $229.74
CC-87-729 Virginia Lockhart $301.53
CC-87-680 Wanda Marcum $98.26
CC-87-607 Marvin Marsh $287.92
CC-87-605 Linda Martin $3.93
CC-87-609 John Mathews $406.15
CC-88-8 William Mathews $515.17
CC-87-608 Donald Matney $219.10
CC-87-610 Jeff Matthews $882.94
CC-87-61 1 Margaret May $402.46
CC-87-613 Martha McBride $1,280.74
CC-87-727 Rebecca McBride $538.80
CC-87-6 14 Bernadette McCoy $553.74
CC-87-670 Patricia McGrew $306.98
CC-87-671 William McGrew $318.79
CC-87-738 Jane McKinney $1,004.72
CC-87-624 Betty Mikels $954.38
CC-87-648 April Miller $15.04
CC-87-665 Peggy Miller $1,034.71
CC-87-649 Monica Mills $1,476.06
CC-87-6 15 Darrell Morgan $1,100.18
CC-87-623 Ruth Mullens $449.04
CC-87-546 Barbara Mullins $655.50
CC-87-617 Charolate Mullins $372.77
CC-87-663 Ola Mullins $380.56
CC-87-667 Patricia Mullins $305.53
CC-87-657 Ellissa Munsey $358.39
CC-87-616 William Neal $1,081.55
CC-87-732 Rebecca Sue Neeley $1,287.94
CC-88-16 Charles Neirman $1,093.42
CC-87-527 Judy Nystrom $762.90
CC-87-622 Eugene Paramore $680.89
CC-87-619 Mary Parker $262.73
CC-87-620 Sandra Parker $324.34
CC-87-618 Gail Parks $439.12
CC-87-621 Ruth Payne $725.68
CC-88-6 Tina Pittman $113.55
CC-87-728 Mary Premo $524.76
CC-87-625 Robin Pruitt $337.36
CC-88-15 Christina Rakes $305.51
92 REPORTS STATE
COURT OF CLAIMS [W.Va.
CC-88-30 Ronald E. Randolph $957.48
CC-87-739 Mary Redd $351.74
CC-87-646 Betty Reedy $534.22
CC-87-524 Alva Reilley $402.05
CC-87-647 Kathy Rhodes $1,195.27
CC-88-14 Claude R. Richards $293.07
CC-88-7 Kim Riffe $210.18
CC-88-25 Billy Riggs $1,807.36
CC-87-654 Jo Nell Rose $581.10
CC-87-626 Deborah Rotenberry $302.71
CC-87-525 Jerry Rotenberry $878.18
CC-87-627 Cora Marie Scales $427.37
CC-87-664 Jessie Shirley $388.17
CC-87-629 Charles Short $1,688.53
CC-87-628 Teresa Shrader $807.94
CC-88-11 Violet Shrewsberry $291.69
CC-87-630 Connie Sigmon $511.13
CC-87-631 Wanda Simons $1,018.18
CC-87-528 Carolyn Slaughter $5.67
CC-88-9 Dietrich Spencer $259.95
CC-87-632 Milton Steele $920.68
CC-87-679 Nellie R. Steele $376.00
CC-87-523 Martha Stevenson $1,904.72
CC-87-634 Evelyn Swiney $477.37
CC-88-22 Helen Terry $441.50
CC-87-521 Linda Thomas $194.45
CC-87-645 Garland Tilley $398.29
CC-87-635 Yvonne Townsend $476.62
CC-87-636 Casperetta Vance $412.38
CC-87-644 Laura Vaughn $376.13
CC-87-642 Charlene Walker $54.64
CC-87-643 Larry Walker $196.96
CC-87-635 Marvin Walker $233.86
CC-87-641 Kathy White $417.28
CC-87-660 Debra Whited $576.00
CC-87-640 Alice Whitehead $497.35
CC-87-661 Carolyn Wolfe $1,079.85
CC-87-637 Claudia Woody $481.16
CC-87-639 Deborah Yates $990.16
CC-87-638 James Young $674.40
191 claims $107,889.77
W.Va.1 REPORTS
STATE COURT OF CLAIMS 93
OPINION ISSUED JANUARY 18, 1988
SCOTI’ A. BROWN, ET AL.
VS.
DEPARTMENT OF EDUCATION
(CC-87-136 -
CC-87-144)
William B. McGinley, Attorney at Law, for claimants.
Robert D. Pollitt, Special Assistant Attorney General, for respondent.
PER CURIAM:
These claims were submitted for decision based upon the pleadings, and upon a
written stipulation.
The claimants, by their counsel, William B. McGinley, and respondent, by its counsel,
Brentz Thompson, entered into a stipulation. The parties, in the stipulation,
agreed to the following facts:
The claimants are employed by the West Virginia Department of Education
(hereinafter for the Department) as teacher aides assigned to the Special
Education Unit of the Cohn Anderson Center.
All claimants were employed as teacher aides between March and September 1984
as a result of the respondent assuming educational responsibility for Medley
class members in facilities of the Department of Health. Claimants had formerly
been employed by the Department of Health as therapy aides, psychiatric aides
or houseparents.
When hired by respondent the grievants were allowed prior experience credit for
pay purposes only for years worked in the education program of the Department
of Health.
Subsequently, five additional aides were hired by the respondent who were
granted prior experience pay credit for years worked at the Cohn Anderson
Center but not in the educational program of the Department of Health.
The State Superintendent of Schools approved the salaries including the
additional experience credit granted to the five new aides, and the State Board
of Education paid those salaries.
94 REPORTS STATE
COURT OF CLAIMS [W.Va.
The claimants, as employees of the West Virginia Department of Education, have
a grievance procedure available to them that was established by the legislature
and set out in WV Code §
18-29-1 et seq. The procedure contains
four levels, with the last level consisting of a full hearing before a hearing
examiner of the Education Employees Grievance Board.
Claimants sought relief through the statutory grievance procedure and received
a favorable decision at Level Four written by Hearing Examiner Sue Keller on
June 13, 1986. In that decision, Examiner Keller held that:
The grievants are entitled to salary adjustment granting credit for years of
employment earned at the Center, effective as of the date of the policy change.
The respondent adjusted the salaries accordingly following the date of the
Hearing Examiner’s decision, but has not adjusted the salaries from the date of
the change in the “experience credit policy” (i.e. the date of hire for the
first additional aide) to the date of the decision.
The Court, having reviewed the pleadings and stipulation filed in this action,
is of the opinion that, in equity and good conscience, the following awards
should be made:
Scott A. Brown $
556.00
Betty Craven $1641.60
Cindy S. Jeffers $2736.00
David Lancaster $820.80
Anthony A. MacFarlane $556.00
Carol J. McCutcheon $2736.00
Tamara Sanford $1504.00
Elizabeth J. Stuart $3830.40
Elizabeth Anne Wolfe $2508.00
However, there has been no appropriation of funds from which these claims may
be paid. In that respect, these claims bear some similarity to the factual
situation in Airkem Sales and Service, et al. vs. Dept. of Mental Health, 8
Ct.Cl. 180 (1971) in which an appropriation had been exceeded by expenditures.
Claims Disallowed.
OPINION ISSUED JANUARY18, 1988
CSX TRANSPORTATION COMPANY
W.Va.1 REPORTS
STATE COURT OF CLAIMS 95
VS.
DEPARTMENT OF HIGHWAYS
(CC-84-1 80)
B. Jane Myers and Randell Baisden, Attorneys at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
HANLON, JUDGE:
This claim was originally filed in a style that did not reflect the proper
party claimant. The Court, upon the claimant s motion, amended the style of the
claim to reflect CSX Transportation Company as the claimant.
CSX Transportation Company owns and operates a railroad line in Mineral County.
Adjacent to this land is West Virginia State Route 42 which is higher in
elevation than the railroad.
There is a rock high wall immediately above the railroad tracts. In 1979 and
early 1980, there
were subsidence problems with the hillside. Slides then occurred in this area
identified as “Site
B.” The respondent took standard corrective measures to minimize the problem.
During March
9 - 12, 1982, a major failure of the embankment occurred at
another area designated as “Site A.”
Although both slides are on State Route 42 above the railroad right of way,
“Site B” is approximately 300 feet downgrade from “Site A.”
A large portion of Route 42 collapsed and started sliding down toward the
railroad’s property at the time of the “Site A” failure. Respondent excavated
into the hillside to permit the road to remain open. On March 13, 1982,
respondent used a 977 Cat track loader to remove some of the material from the
hillside to establish a safe, one-lane detour around the “Site A” slip area. When
the detour was constructed, respondent maintained the ditch near the hillside
so the water that was flowing in the ditch line would not cross the detour and
flow into the slip area. Material was placed on the outside edge of the
shoulder on either side of “Site A.”
The claimants’ right-of-way on the Route 421 side is 40 feet; 230 feet on each
side of the center line. The “Site A” slide area was inclusive of respondent’s
right-of-way, but it did not occur totally on respondent’s right-of-way.
“Site B” was regularly monitored by respondent and respondent observed no
indication of problems with Site A” during a February 22, 1982 inspection. On
March 9, 1982, some movement had appeared and “Site A” was reviewed by
respondent. On March 9, 1982, when the area was investigated by Terry R.
Kesner, there was no obstruction in either the ditch line or the culvert.
96 REPORTS STATE
COURT OF CLAIMS [W.Va.
The complaint alleges it was respondent’s improper conduct or negligence at
“Site B” which caused the slide at “Site A.” The evidence fails to establish
that respondent was negligent in its maintemnce of State Route 42. The slides
at “Site B” and “Site A” were two distinct slides. The slide at “Site B” was
not relevant to the slide at “Site A.” The respondent was unaware of the
proclivity of “Site A” to slip. The claim is accordingly denied.
Claim disallowed.
OPINION ISSUED JANUARY18, 1988
CAPON BRIDGE COMMUNITY AND SENIOR CENTER
VS.
GOVERNOR’S OFFICE OF COMMUNITY
AND INDUSTRIAL DEVELOPMENT
(CC-87-400)
No appearance by claimant.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondents Answer.
Claimant seeks $40,500.00 for payment of invoices which were incurred by
claimant pursuant to a contract with the respondent under the Governor’s
Community Partnership Grant Program. In accordance with the contract, the
claimant began a furnace and roof project for the which claimant incurred
invoices for services. The respondent admits the validity and amount of the
claim and states that there were sufficient funds in respondent’s budget for
the appropriate fiscal year with which the claim could have been paid; however,
the respondent was unable to make payment as the State Auditor returned the
transmittal to the respondent with the explanation that the Treasury of the
State of West Virginia lacked sufficient funds to process the transmittal.
The Court has reviewed the petition, Answer, and contract and finds the State
agency had sufficient funds within its appropriated budget to pay the claim and
finds that the claimant is entitled to an award from the respondent. However,
respondent indicated in its Answer that claimant is entitled to $8,849.00 as
the Governor has awarded claimant a grant to help pay for renovations to the
Senior Center.
In view of the foregoing, the Court makes an award in the amount of $8,849.00.
W.Va.] REPORTS
STATE COURT OF CLAIMS 97
Award of $8,849.00.
OPINION ISSUED JANUARY18, 1988
CITY OF GLENVILLE
VS.
GOVERNORS OFFICE OF COMMUNITY
AND INDUSTRIAL DEVELOPMENT
(CC-87-5 13)
No appearance by claimant.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant seeks $33,872.22 for payment of invoices which were incurred by
claimant pursuant to a contract with the respondent under the Governor’s
Community Partnership Grant Program. In accordance with the contract, the
claimant began an improvement project to its water system for which claimant
incurred invoices for services. The respondent admits the validity and amount
of the claim and states that there were sufficient funds in respondent’s budget
for the appropriate fiscal year with which the claim could have been paid;
however, the respondent was unable to make payment as the State Auditor
returned the transmittal to the respondent with the explanation that the Treasury
of the State of West Virginia lacked sufficient funds to process the
transmittal.
The Court has reviewed the petition, Answer, and contract and finds the State
agency had sufficient funds within its appropriated budget to pay the claim and
finds that the claimant is entitled to an award from the respondent.
In view of the foregoing, the Court makes an award in the amount of $33,872.22.
Award of $33,872.22.
98 REPORTS STATh
COURT OF CLAIMS [W.Va.
OPINION ISSUED JANUARY18, 1988
CONSOLIDATED GAS
TRANSMISSION CORPORATION
VS.
DEPARTMENT OF CORRECTIONS
(CC-86-262)
Frederick R. Brooking, Attorney at Law, for claimant.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
GRACEY, JUDGE:
Claimant seeks $11,467.99 for damage to its 1985 Dodge truck and for tools in
the truck at the time of the incident which were never recovered. Claimant’s
truck was stolen on April 29, 1987, by three juveniles housed at the Salem
Industrial School, a facility of the respondent.
Claimant alleges negligence on the part of respondent for failing to properly
secure the juveniles at the Salem Industrial School. Claimant contends that
unusual circumstances during that evening should negate the fact that the key
was in the ignition of claimant’s truck at the time of the theft.
At some time after midnight, one of the three juveniles involved in this
incident requested a glass of water from correctional officer, Frank DeMicco,
who was in charge of the juveniles housed in Jones Hall, a dormitory at Salem
Industrial School. When the officer returned with the water, one of the
juveniles struck Mr. DeMicco and took his keys. The juveniles then escaped from
Jones Hall and the complex. They proceeded to claimant’s parking lot where they
stole the truck. The parking lot is located behind claimant’s office buildings
;and is surrounded by a fence which is approximately eight to ten feet in
height and is topped with barbed wire. The stolen truck was parked
approximately 30-40 feet from the main gate which was unlocked at the time of
the theft.
Michael Conley, District Superintendent of Salem District for claimant,
testified that
April 28 and April 29, 1986, were unusual as a brush fire had occurred in the
Coal Water area.
Several of claimant’s employees were dispatched to protect claimant’s gas pipe
lines in that area.
There were several employees going to and from the scene of the fire on the
night of the incident.
He stated that it is company policy for employees to park a vehicle, leave the
key in the ignition
or ashtray of the vehicle, and lock the gate to the parking lot.
W.Va.] REPORTS
STATE COURT OF CLAIMS 99
It is clear from the record that negligence, if any, on the part of the
respondent was not the proximate cause of the damages suffered by the claimant.
Claimant was negligent in leaving the keys in the parked truck and in leaving
the gate to the parking lot unlocked. This negligence was the proximate cause
of the theft and any subsequent damage to the vehicle and the loss of the
tools. Edens vs. Dept. of Health, 15 Ct.Cl. 166 (1984); Lepara vs.
Dept. of Corrections, 13 Ct.Cl. 49 (1979). Accordingly, the Court is of the
opinion to and does deny the claim.
Claim disallowed
OPINION ISSUED JANUARY18, 1988
ROBERT L. WRIGHT AND
ROBIN L. WRIGHT
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-1 18)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimants are the owners of a 1980 Chevrolet Monza which was damaged when it
struck a pothole on U.S. Route 19 in Fairmont, Marion County, on April 12,
1981. The claimants seek $261.87 for damage to the vehicle.
Claimant Robert L. Wright testified that he was traveling northbound at
approximately 2:00 am. It was raining heavily at the time of this accident. He
stated that the pothole was located six to eight inches from the edge of the
road, and that he was travelling at a speed of 30-35 mph. He drove the road on
a daily basis and had contact respondent concerning the holes on this route a
week to three days before the accident. The damage to the vehicle consisted of
a damaged shock, a cracked A frame, a bent rim and a damaged tire.
Harold E. Beerbower, Marion County Supervisor for respondent, testified that
repairs were made to this section of road on March 10, 1987 and on March 17 and
18, 1987. Cold mix was utilized on the former date and hot mix was utilized on
the latter dates. He does not recall any complaints immediately prior to April
12, 1987 regarding this particular area.
U.S. Route 19 serves major city-to-city travel and respondent must be held to a
high standard of maintenance. The record reveals that this particular section
of highway was patched
100 REPORTS STATE
COURT OF CLAIMS [W.Va.
within a month of the date of this incident. A properly patched highway should
last longer than one month. There is evidence that the respondent had more than
sufficient notice that the hazard had reoccurred. Respondent s failure to
adequately maintain the highway constitutes negligence on its part. The Court,
therefore, makes an award in the amount sought.
Award of $261.87.
OPINION ISSUED FEBRUARY 19, 1988
JOHN F. BARILE
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-361)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURL&M:
On September 19, 1986, the claimant was driving his 1985 Buick on U.S. Route 50
in an easterly direction. Concrete had fallen from the 13th Street Bridge
above U.S. Route 50 and claimant’s vehicle struck this concrete. The
claimant seeks $64.99 for damage done to the tire to his vehicle.
Claimant testified that at the time of the accident, the weather was nice. It
was just beginning to get dark. He was travelling at approximately 10-15 miles
per hour. The accident occurred at about 7:25 p.m. He travels this route every
day, and had travelled it earlier the date of the incident. On his previous
trip, the claimant had not observed the concrete debris on the highway. He had
no knowledge of when respondent was notified concerning the dangerous condition
of U.S. Route 50.
Stephen Randall Harris, a district bridge engineer with respondent in District
4, testified that he was familiar with the bridge in question. He checked
respondent’s records to ascertain that there was damage to the bridge on the
date of this accident and that respondent was notified of this fact at 7:19
p.m. The area was cleared of debris at 7:52 p.m. He found no evidence in the
records of any notification to respondent prior to 7:19 p.m. on September 19,
1986.
Francis E. Knight, former supervisor of APD 50, Tunnel Hill for respondent,
testified that he arrived at the accident scene at approximately 7:30 p.m. He
had been notified by
W.Va.] REPORTS
STATE COURT OF CLAIMS 101
the district of the problem on U.S. Route 50 at 7:19 p.m. He had no knowledge
of any damage to the bridge itself or concrete on the roadway below prior to
the notification at 7:19 p.m.
The State is neither an insurer nor a guarantor of the safety of motorists on
its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947). In order for the
respondent to be found liable for the damages incurred, proof of notice, either
actual or constructive, of the defect in question must be shown. The evidence
in this record indicates that the dangerous condition appeared suddenly, and
that the respondent acted promptly to take safety precautions as soon as it
became award of the problem. Barnhart
vs. Department of Highways, 12 Ct.Cl.
236 (1979), Moore vs. Department of
Highways, and Taylor vs. Department of Highways, CC-85-167 (Opinion issued February 19, 1986). The Court
is of the opinion that negligence on the part of the respondent has not been
established and, therefore, the Court denies this claim.
Claim disallowed.
OPINION ISSUED FEBRUARY 19, 1988
FORK RIDGE VOLUNTEER FIRE DEPARTMENT,
INC.
VS.
STATE FIRE MARSHAL
(CC-86-384)
James W. Baker, Jr. appeared for claimant.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
Claimant, Fork Ridge Volunteer Fire Department, Inc., alleges that the
respondent, State Fire Marshal, wrongfully denied it a share of funds
distributable from municipal pension and protection funds for the Fiscal Year
1985-1986. Certified similar fire departments had each received $4,575.93. The
funds are provided by a State tax on fire and casualty insurance premiums.
In W.Va. Code §33-3-14d (b), The State Fire Marshal, ‘... Before the first day of August ... of each calendar year ... is required to report to the State Treasurer names nad addresses of all
volunteer and part volunteer fire companies and departments within the State
which meet the eligibility requirements established in W.Va. Code §8-15-8a.” One
of the requirements therein is that:
102 REPORTS STATE
COURT OF CLAIMS [W.Va.
“Each volunteer or part volunteer fire company or department must:
(a) Submit and maintain current submission of fire loss data to the state fire
marshal, including verification via notary public, if no fire loss has
occurred;”
The State Fire Marshal provides forms for the filing of monthly reports for satisfying
this requirement and forms for applying for certification. Claimant had timely
filed its application for certification.
Walter Smittle, III, the State Fire Marshal, testified that he had not
certified the claimant to the Treasurer because he had not received reports
from the claimant for the months of September 1985, and February and
March of 1986, when he submitted his certification to the State Treasurer on
July 30, 1986, for the fiscal year 19854986. He stated that the provisions of
the West Virginia Code do not make any provisions for his department to
recertify departments after August 1, 1986. He indicated that the September
report was received August 11, 1986, and the February and March reports were
received August 15, 1986.
No witness on behalf of the claimant was able to establish that the reports
from the missing months had been timely filed or mailed by the claimant.
Claimants witness stated that the reports had been mailed, but he could not
establish a date for the mailing of the reports.
Although the Court is aware of the fine service provided by volunteer fire
departments such as this claimant, the Court must, upon the testimony and
exhibits and upon the applicaole statutes, deny this claim.
Claim disallowed.
OPINiON ISSUED FEBRUARY 19, 1988
WILLIAM I. GLASER
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-373)
Claimant appeared in person.
Nancy J Miff, Attorney at Law, for respondent.
PER CURIAM:
W.Va.J REPORTS
STATE COURT OF CLAIMS 103
On October 9, 1984, the claimant was operating his vehicle on Interstate 70 at
the Mt. de Chantal Ramp in Wheeling, West Virginia, when his vehicle struck the
vehicle preceding him. He seeks to recover $600.00 for damages to his vehicle.
The claimant testified that he was travelling at a very low speed of
approximately five miles per hour at the time of the accident. Formerly at the
Washington Avenue on ramp and the Oglebay off ramp, there were signs that
directed the through traffic in the westbound lane. The signs had been removed
prior to claimant’s accident. He alleges that the design of the interstate
caused his accident. As of September 24 of that year, there had been seven
accidents at this particular intersection. He contacted the Governor, who in
turn contacted Fred VanKirk, the Acting Conunissioner for respondent, who
corresponded with the claimant. However, the situation has not been rectified.
Proximate cause is an essential element of a claimant’s case, and claimant has
the burden of establishing the proximate cause of an incident to justify
recovery in any action based on negligence. Wolverton vs. Dept. of Highways,
9 Ct.Cl. 223 (1973). The Court has determined that the claimant’s actions
were the proximate cause of the accident. Accordingly, the Court is of the
opinion to and does disallow the claim.
Claim disallowed.
OPINION ISSUED FEBRUARY 19, 1988
DENNIS L. GOODWIN
VS.
DEPARTMENT OF HIGHWAYS
(CC-87- 18)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant seeks $877.13 for his tools and other personal property which were in
respondent’s vehicle when the vehicle was stolen on July 23 or July 24, 1986
from respondent’s garage.
Claimant alleges negligence on the part of respondent for failing to properly
secure its garage. The garage is located in Mudlick, Lewis County.
104
REPORTS STATE COURT OF CLAIMS [W.Va.
The claimant testified that he is an Equipment Operator 3 for respondent.
Respondents 1986 Chevrolet half-ton pickup truck was parked in an area enclosed
by a six-foot, chain link fence with a lock gate. At the time of the theft,
some individual cut the fence, entered the yard, and stole claimant’s property
with respondent’s truck. Claimant stated that it is standard procedure to leave
the keys inside the trucks. This was the case during this incident. Claimant
stated that he was not required to keep his tools in the pickup truck.
Respondent contends that the gate was locked and that the area was bordered by
a chain link fence and that claimant made his own decision as to leaving the
keys in the truck. Claimant testified that some employees placed the keys to
the trucks in the office. There apparently was no standard policy as to where
the keys belonged once the truck was parked inside the gate.
The Court believes that the claimant, by failing to lock the pickup truck and
leaving the keys therein, was negligent The record fails to reveal negligence
on the part of the respondent. For that reason the Court denies this claim.
Claim disallowed.
OPINION ISSUED FEBRUARY 19, 1988
JANEY N. QUICK
VS.
DEPARTMENT OF HIGHWAYS
(CC-87- 157)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
The claimant was operating her 1982 Subaru on Route 7/19, Monongalia Boulevard,
Monongalia County, when her vehicle struck two rocks. Cost of repair to the
vehicle amounted to $257.46. The rocks had rolled from a hill over a retaining
wail onto the highway. The incident occurred on May 19, 1987, at approximately
5:00 a.m. The claimant was driving to her place of employment at Internal
Medicine Associates in Morgantown. She testified that she was travelling at
between 40 and 45 mph. She stated that she had observed rocks on the shoulder
of the road on previous occasions, but not on the highway itself. She travelled
this route on a daily basis.
W.Va.j REPORTS
STATE COURT OF CLAIMS 105
William L. Fieldhouse, County Maintenance Superintendent for Monongalia County,
testified that he was familiar with the hillside in the area of the roadway in
question. He described the roadway as being a four-lane highway with very wide
berms. He stated that the hillside is a very steep slope along the edge of the
road; it is not a benched cliff. The witness mentioned that the back side of
this particular retaining wall is checked regularly. Prior to the claimant’s
accident, he had not been advised of any complaints of rocks in the roadway
itself.
The State is neither an insurer nor a guarantor of the safety of motorists
travelling on its roadways. The unexplained falling of a rock or boulder onto a
highway, without a positive showing that respondent knew or should have
anticipated damage to property is insufficient to justify an award. Hammond
vs. Dept. of Highways, 11 Ct.C1. 234 (1977). William L. Fieldhouse, County
Maintenance Superintendent for Monongalia County, with respondent, testified
that there had been no complaints of rock in the roadway immediately prior to
claimant’s action. The Court concludes that claimant has not shown any
negligence on the part of respondent to justify an award in this claim.
Claim disallowed.
OPINION ISSUED MARCH 24, 1988
HARRY J. CAPLAN
VS.
DEPARTMENT OF HIGHWAYS
(CC-86- 155)
Claimant appeared in person.
Nancy I. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On March 22, 1986, the claimant was travelling in a northerly direction on
Route 2 in Weirton, West Virginia. Claimant’s 1980 Oldsmobile struck a
deteriorated area in the roadway. Claimant seeks an award of $97.93 for damages
to his vehicle. He alleges that respondent was negligent in its maintenance of
the catch basin.
Claimant testified that he was accompanied by a witness, Julius Lurie. He was
travelling at a speed of 10-15 mph, and his vehicle had passed the Kroger Store
which is located on Route 2. He stated that a catch basin had deteriorated, and
the drain was not flush with the curb. The basin is located right at the edge
of the curb between the sidewalk and the curb. The plate covering the catch
basin was stocking out, but claimant failed to notice the plate. He
106 REPORTS STATE
COURT OF CLAIMS [W.Va.
estimated the width of the hole to be between 10 and 12 inches. He travels this
route frequently, but had not observed the deteriorated drain basin previously.
Julius Lurie confirmed the testimony of the claimant.
Tony Orecchio, maintenance supervisor for Hancock County for respondent,
testified that he was familiar with this particular catch basin. He stated that
in March 1986, the catch basin was in good shape, but that the road surface was
eroded two to three inches from the opening of the catch basin. He also stated
that the City of Weirton had installed new curbs and sidewalks in 1986. The
catch basis was located adjacent to the sidewalk. The complaint made by the
claimant after his accident was the first complaint which Mr. Orecchio had
received concerning this catch basin since he had become maintenance supervisor
in the fall of 1985.
After careful review of the evidence presented, the Court can find no basis
upon which to find respondent negligent. See Lynn vs. Dept. of Highways, 9
Ct.Cl. 127 (1972). The catch basin was maintained in the customary manner and
no breach of duty by respondent has been shown. Under the circumstances, the
Court is of the opinion to, and does, disallow the claim.
Claim disallowed.
OPiNION ISSUED MARCH 24, 1988
VIRGINIA ELLIS
VS.
DEPARTMENT OF HIGHWAYS
(CC-87- 180)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
During June 1987, the claimant was travelling in her 1978 Grand Prix on Whitman
Road. The automobile is titled in claimant’s name and in that of her deceased
husband. She was directly behind respondent’s truck which was lining the road
with paint. She seeks compensation for the damage to her car when paint was
sprayed by respondent’s truck.
The claimant testified that she was five or ten feet behind respondent’s truck.
The paint being sprayed splashed on both the hood and windshield of her
vehicle. The paint on the windshield came off after being washed three or four
times. She identified the vehicle in front of her as being respondent’s
vehicle. The paint was orange and the claimant owns a black vehicle.
W.Va.j REPORTS
STATE COURT OF CLAIMS 107
She did not supply the Court with an estimate of her damages nor did she make a
claim for a set amount. She stated that it is difficult to pass on the road,
but it is a two-lane road. Claimant’s friend, Kimberly M. Browning, was present
in the vehicle when the accident occurred. She confirmed the fact that there is
paint all over the hood of claimant’s automobile.
The Court finds that there is negligence on the part of the respondent.
However, the claimant, at the time of the hearing on November 13, 1987, nearly
five months after the accident, had not had an estimate prepared for the damages.
Claimant has failed to submit an estimate. The Court is unable to make an award
based on speculation. For that reason, the Court is of the opinion to, and
does, deny this claim.
Claim disallowed.
OPINION iSSUED MARCH 24, 1988
NORA HARTWELL
VS.
DEPARTMENT OF HIGHWAYS
(CC-87- 145)
James E. Williams, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On April 15, 1987, at approximately 9:00 p.m., claimant’s 1982 Mercury Colony
Park station wagon operated by claimant’s daughter, Carmel Pauley, struck a
piece of damaged road on State Route 7/4. Claimant seeks $1,543.22 for the
damage to her vehicle.
The claimant’s daughter, Carmel Pauley, testified that at the time of the
accident she was travelling between Craddocks Fork and Lick Creek, Boone
County. Her vehicle was coming off Craddocks Fork hill when it struck and
broken up area in the road. The vehicle then went down over the hill. She
stated that the road is approximately 20 feet wide at the point of the accident.
She alleged that this damaged portion of the road had been in existence for two
months prior to this accident. She drove this area every day and was aware of
the defective condition of the roadway. She had never personally reported the
condition of the road to the respondent.
Claimant testified that she had reported the condition of the road to the
respondent. Notice was given by her previous to this accident. She stated that
to her knowledge no
108 REPORTS STATE
COURT OF CLAIMS [W.Va.
representative of respondent had checked the area before this accident. She did
not have the vehicle repaired and it was repossessed.
The State is neither an insurer nor guarantor of motorists travelling on its
highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947). For negligence of the respondent to
be shown, proof of notice of the defect in the road is required. Davis Auto Parts vs. Dept. of Highways, 12 Ct.Cl. 31(1977). In this case the claimant testified
that she had reported the road condition and no action had been taken. This was
not denied by the respondent. However, the Court believes that the driver of
the vehicle, with her prior knowledge of the road condition, was likewise
negligent. She travelled the road daily and knew of the existence and the location
of the damaged section of the roadway. Under the doctrine of comparative
negligence, the Court is of the opinion that the negligence of the driver of
the vehicle was equal to or greater than that of the respondent and disallows
the claim. Bradley vs. Appalachian
Power Co., 256 S.E.2d 879 (1979).
Claim disallowed.
OPINION ISSUED MARCH 24, 1988
WALTER M. SOUTH
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-160)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On May 19, 1987, at approximately 12:00, noon, claimant was driving on Route 61/5 when his
vehicle struck a railroad spike located in the road. His vehicle, a 1984 GMC
truck, sustained damages in the amount of $54.60. Claimant seeks an award
for the damage done to the tire of his vehicle.
Claimant testified that he was travelling south on 61/5 enroute
to his home. He was travelling at approximately 25 mph and stated that the road
was wet, due to rain, previous to the accident. He explained that the highway
is a one-land road, and he had to exit the travel portion of the road to permit
oncoming vehicles to pass. As he left the road for an oncoming vehicle, his
vehicle made contact with the railroad spike. Claimant alleges that the
respondent had pulled ditches or graded the road approximately a week prior to
this accident and ...
“threw up these gravel.” Claimant’s wife,
Kathryn F. Sough, confirmed the testimony of claimant. In
W.Va.] REPORTS
STATE COURT OF CLAIMS 109
addition, she stated that she, her husband, and her daughter picked up 25
spikes in the afternoon of the accident or perhaps the next day. She described
the spikes as about six, maybe seven, inches in length. The State is neither an
insurer or guarantor of the safety of motorists on its roads. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for the
respondent to be found liable for the damage sustained, proof of actual or
constructive notice of the defect must be shown. Since there was no proof in
this case that respondent had notice of the defect, the claim must be denied.
Claim disallowed.
OPINION ISSUED MARCH 24, 1988
MAXINE SHREWSBURY
VS.
DEPAR1 MENT OF HIGHWAYS
(CC-87- 179)
Claimant appeared in person
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On June 11, 1987, claimant s velicie, a 1983 Chrysler Fifth Avenue was damaged
when struck a part of the guardrail on Brick Yard Road in the vicinity of
Princeton, West Virginia. Claimant seeks $132.96 which is the cost of repair.
Claimant testified that she was travelling north at approximately ten miles per
hour and that the weather was good. The accident occurred at approximately 1 30
p.m. She was driving from Princeton on Brick Yard Road and was attempting to
cross a very narrow bridge. The guardrail and the post were bent and were
extending into the road about two and one-half feet. The vehicle was caught and
damaged. The bridge measures nine fee, six inches. Claimant stated that she was
approximately eight feet from the guardrail before she saw it. She admitted
that she saw the guardrail sticking out into the paved portion of the roadway,
but she attempted to pass it.
There was evidence presented that this condition had been reported to
respondent before this incident. This was not denied by the respondent.
However, the Court believes the claimant was likewise negligent. She observed
the deteriorated guardrail before her vehicle struck
it. Under the doctrine of comparative negligence, the Court is of the opinion
that the claimant’s negligence was equal to or greater than the respondents and
disallows the claim.
110 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claim disallowed.
OPINION ISSUED MARCH 28, 1988
CLAUDE BARKER, JR., EUGENE BARKER
RHODEN BARKER, LAURA TAYLOR,
GRACE CLAYMON, AND HELEN NEFF
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-i 15)
Claimant Claude Barker, Jr. appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant Claude Barker, Jr., in addition to his five brothers and sisters, own a house and cellar house on County Route
26, Ritchie County, West Virginia, which they inherited from their mother.
Claimant is residing in the house at this time. The Court, on its own motion,
amended the style of the claim to include the five other heirs in whose names
the property is titled. The claimants seek $1,500.00 for damage to the house
roof and cellar house as a result of a fallen tree.
The claimants allege that the respondent graded the road approximately one year
before the date of this incident and damaged the roots of the tree causing it
to fall, and this resulted in the loss. Claimant Claude Barker, Jr. testified
that on or about March 14, 1984, a free fell on the house. He stated that it
was a living red oak tree. He stated that the house is approximately 10 feet
from the highway and the width of the highway is 20 feet. The tree is located
on the respondent’s right-of-way.
William 3. Frederick, a neighbor, confirmed the testimony of the
claimant that when the road was graded a tree root was cut and the tree later
fell. He was unable to state the date when the tree fell. He testified that the
claimants’ cellar house was gone, and the corner of his house was gone.
Gene Tanzey, County Highway Department Superintendent for Ritchie County,
testified that he supervises the machinery used by the respondent. Oil drilling
was being done in the area by individuals not authorized by respondent. Those
individuals moved numerous large bulldozers out over the road by claimants’
house. The testimony indicated that the respondent did not grade the road or
have any equipment on the road that could have damaged the tree root.
W.Va.] REPORTS
STATE COURT OF CLAIMS 111
The claimants’ assertion of liability is based on the theory that respondent
was negligent in its grading of the road near claimants’ house, which
resulted in damage to a tree at that location and subsequent damage to
claimants’ house. The Court is unable to fmd negligence on the part of
respondent as the record lacks proof that respondent performed any grading.
Accordingly, the claim must be denied.
Claim disallowed.
OPINION iSSUED MARCH 28, 1988
ALFRED D. FRIEND, JR.,
AS ADMINISTRATOR OF THE
ESTATE OF KAREN M. FRIEND, DECEASED
VS.
DEPARTMENT OF HIGHWAYS
(CC-85-327)
Paul K. Reese, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
WALLACE, JUDGE:
Claimant brought this action as administrator of his wife’s estate. His wife,
Karen M. Friend, died in an accident which occurred on Labor Day
weekend in 1983. She was operating her vehicle, a Ford Pinto, on Local Service
Route 2 in Pendleton County, when the vehicle slid off the road and rolled down
a bank. Both Karen Friend and a passenger, Deborah Reall, were thrown from the
vehicle. Mrs. Friend died from the injuries which she received.
Claimant alleges that the proximate cause of the accident was the condition of
Route 2, basically a one-way dirt road, proceeding through a camping and
fishing area along the South Branch of the Potomac River. More specifically,
claimant contends that the road wa snot sufficiently wide; that the road was
not marked or delineated; and that the respondent was aware of the dangerous
condition of the road.
Respondent contends that Route 2 at the location of the accident is basically a
dirt road which was taken into the State road system in 1933. It is an
unimproved, dirt road leading to a park known as the Big Bend Campground.
Respondent alleges that the proximate cause of the accident was not the
negligence of the respondent, but was the negligence of the driver of the
vehicle.
112 REPORTS STATE
COURT OF CLAIMS [W.Va.
The facts of the claim are as follows: On September 2, 1983, during Labor Day
weekend, claimant’s wife, their son, and two friends agreed to go on a fishing trip
to Big Bend Campground in West Virginia. They took two vehicles, one of which
was a camper truck, and one of which was Karen Friend’s Ford Pinto. They left
from their homes in Garrett County, Maryland at approximately 5:00 p.m. Mrs. Friend and her passenger, Deborah Reafi,
proceeded in the Ford Pinto ahead of claimant, who was riding with Stanley
McCrobie and the Friends’ son, Joe, to Route 2, to look for an areas where the
camper truck could be parked along the river bank. It was approximately 9:00 p.m.
and dark. As Mrs. Friend drove along the dirt road, the right, front tire of
the automobile went off the surface of the road. She attempted to drive back
onto the road when the rear, right tire also went off the road. The driver was
still attempting to drive the vehicle back onto the orad when the vehicle
struck something. According to the testimony of Deborah Reall, “the car was
sliding but she (Mrs. Friend) was attempting to negotiate it and bring it back
up onto the roadway. The car kind of hung and just sent along ‘til the weight
pulled it and it started to turn and it rolled down over the hill.” The vehicle
travelled approximately 57 feet on the edge of the road before it actually went
over the hill. Mrs. Friend had not travelled this road prior to the date of the
accident herein. She was unfamiliar with the road. Her passenger, Deborah
Reall, had been on the road previously. She testified that she told Karen
Friend that “this road is very narrow and twisting, and she (Mrs. Friend) said,
‘We’ll just go very slow then,’ and that’s what we did.”
Deborah Reall further testified that the vehicle was travelling at about 15
miles per hour. They were driving up a slight incline so the vehicle’s
headlights were pointing up and not on the road surface. The road narrowed at
the accident site.
Measurements taken by the investigating officer, Trooper Richard D. Gillespie,
a member of the Department of Public Safety, revealed that the road was 12
feet, 10 inches at the point the vehicle went off the road. The vehicle
travelled 57 feet, 5
inches according to tire tracks along
the edge of the road before it rolled over the hill.
William Woodrow Hartman, Maintenance Supervisor for District 8, which
encompasses Pendleton County, testified that routine maintenance of Route 2 on
the dirt section consisted of “taking a grader, pull the ditches, clean out
culverts so that you have proper drainage on them, putting a shape back into
the orad, filling up the potholes and also stabilizing the road, tailgating
material on it so you’ll have something to grade so you can fill the potholes.”
This maintenance was performed twice a year.
Testimony and photographic evidence revealed signs at approximately 2/10 of a
mile from the site of the accident. One sign was metal and indicated “Unimproved
One Lane Road Next 4 Miles,” and the other sign was wooden and indicated
“CAUTION Road Narrow, Steep, Hazardous and Subject to Flooding, Drive with Care
The signs were in place on the date of this accident according to Mr. Hartman.
W.Va.] REPORTS
STATE COURT OF CLAIMS 113
There was also testimony concerning a hazard paddle placed to the edge of the
road where the decedent’s vehicle went off the road. The testimony did not
provide a specific point in time when the paddle was placed there by respondent,
but it was after the accident herein. The road varied in width from as wide as
14 feet, 7 inches to as narrow as 11 feet, 5 inches. There is no dispute
that the road was a narrow, dirt road. In fact, respondents witness, Claude
Blake, testified, ‘It is a very hazardous treacherous, one lane road No one at
the hearing disputed this fact.
The Court has reviewed the testimony and evidence in this claim. The scene of
the accident was a narrow, dirt road similar to many local service roads in
West Virginia. The average daily traffic count was 80 during 1983. This road
leads to a camping and fishing area used more in the warmer months of the year
and more frequently on weekends. The respondent had placed a warning sign for
the travelling public as to the character of the road. i.e., ‘Unimproved One
Lane Road Next 4 Miles.” Another sign erected by an agency other than
respondent also warned the travelling public as to the character of the road.
It is the opinion of the Court that the respondent acted in a responsible
manner in posting the metal sign. The respondent maintained Route 2 as it would
any other local service road. The maintenance performed was adequate in light
of the nature of the road, i.e., an access road to fishing and camping areas.
For these reasons, the Court finds that respondent was not negligent in its
maintenance of Local Service Route 2.
The Court is not unmindful of the tragedy of this accident; however, the Court
is of the opinion to the does disallow the claim.
Claim disallowed.
OPINION ISSUED MARCH 28, 1988
CARL RAY SNODGRASS and CHRISTINE SNODGRASS,
his wife; JAMES H. TAYLOR and GLADYS TAYLOR,
his wife; OWEN FACEMIRE, JR., and
DELORES FACEMIRE, his wife;
HELEN KING, ADMINISTRATRIX OF THE ESTATE OF
GERALD L. KING, DECEASED; and
JOANN SNODGRASS, ADMINSTRATRIX OF THE
ESTATE OF DANIEL C. SNODGRASS, DECEASED
VS.
DEPARTMENT OF HIGHWAYS
(CC-76-55)
114 REPORTS STATE
COURT OF CLAIMS [W.Va.
John R. Mitchell, Attorney at Law, for claimants.
Nancy J. Aliff and Andrew Lopez, Attorneys at Law, for respondent.
HANLON, JUDGE:
This claim was filed to recover damages for personal injury and a wrongftil
death which occurred when claimants were employed in the construction of the
New River Gorge Bridge in Fayette County. One of the original claimants has
died since the filing of the complaint, and the Court, on its own motion,
amended the style of the claim to include Helen King, Adminstratrix of the
Estate of Gerald King, deceased, as the proper party claimant.
The claimants allege that respondent failed to comply with regulations of the
Department of Labor Occupational Safety and Health Administration. These
regulations refer to the use of scaffolds, flooring, overhead lines,
excavations and safety nets, among others. In addition, claimants allege that
standards mandated by An Informational Guide on Occupational Safety on Highway
Construction Projects were not followed.
The prime contractor on this job was American Bridge, a Division of the U.S.
Steel, Inc. The contract for this project was let on June 26, 1973. Work began
in the latter part of August, 1973.
At about 1:00 p.m., on May 17, 1974, an accident occurred in which the husband
of one of the claimants was killed and the other claimants were injured.
Claimants allege that the respondent project engineer did not fulfill his
responsibility of overseeing the safety of employees on this project. It is
alleged that the project engineer was advised of certain hazardous conditions
which were in violation of safety specifications. It is further alleged that
the project engineer was negligent in failing to rectify these conditions, and
as a result, the accident occurred.
Arnold Bradshaw, Ironworker Steward from Ironworker s Local 301, described the
site of the accident. The accident occurred on the north approach abutment.
There was na excavation between this abutment and the north rim of the gorge.
The witness explained that there was a working pad or mat in place from the top
of the north abutment to the actual north rim. The mat was placed on the ground
level extending from the north rim out to the north abutment. The cap portion
of the pier was not completed, thereby exposing metal rods which were
protruding from the cap to maintain the mat s elevation even with the ground
level. The mat was on top of the rods. According to Mr. Bradshaw, the
excavation below the mat was at least 25 feet deep.
Mr. Bradshaw testified that the mats were not attached or tied down in any way
on the rim side of the gorge. He testified that he complained to the
superintendent of U.S. Steel, the project manager of U.S. Steel, and to
respondent’s engineer about the excavation. He felt that the excavation below
the mat should have been filled in to ensure the safety of the men working on
the mat. There were no handrails on the mat nor was there a safety net under
the mat.
W.Va.] REPORTS
STATE COURT OF CLAIMS 115
Claimant Owen Facemire, Jr. testified that at the time of this incident the men
were in the process of attaching a cable system between towers that were
located on each side of the gorge. One cable was in place. The sheaves where
the cable was riding had to be jacked apart to place the pins in. The sheaves
were laying on the ground as they were being jacked apart. “The cable that was
holding the sheaves on the platform was draped out over.’ The sheave was cabled
to the platform, and the cable was not attached to anything. The men were
attaching another cable to the trolley system when the platform fell into the
excavation below. Mr. Facemire was standing on the platform and scaffold at the
edge of the rim side. He stated that the work platform that he was working on
‘was going in the hole as he was getting off the end of it.” The platform had
been placed there the week of the accident. It was not attached to anything on
the earth side, nor was it attached to anything on the concrete or gorge side.
The mat consisted of two platforms on top of each other. He estimated the
excavation below the mat as 26 or 27 feet deep. There were no handrails erected
on this work platform nor were there any toe boards on
it. There were no provisions for safety lines nor was there a safety net
provided below the mat.
Earl R. Scyoc, Director of Construction for respondent at the time of this
incident, testified that the contract for the construction of this bridge was a
contract of design with Michael Baker Company and a contract for construction
with American Bridge Company. He stated that
it’s American Bridge’s responsibility as the contractor to provide safety for
the workmen that’s performing their work in the contract.” However, he
testified that his department does have the ability to enforce safety
regulations on construction projects. He also stated that prior to the time of
this accident, he was not made aware of any serious safety violations on this
project.
Jesse H. Gravely, Construction Engineer for respondent, testified that his
duties concerning the New River Gorge Bridge project were principally those of
administrator for the contract. He stated that it has always been his
understanding that the contractor is responsible for safety on the projects.
After reviewing the pertinent OSHA regulations, it appears that a number of
safety violations were present at the time of the incident. The most obvious
appear to be the safety net and guardrail requirements for scaffolds.
While these violations may not have caused the accident, it is reasonable to
assume that had the net and guardrails been present, the injuries and death
might will have been avoided.
Nevertheless, the Court cannot, in good conscience, find respondent’s conduct
to be the proximate cause of the accident. Testimony disclosed that a number of
supervisory individuals participated in this project. The Court has been unable
to discern any omissions or acts on the part of the project engineer, which
could be construed to have been the proximate cause of this accident.
The OSHA regulations cited by the claimants provide specific requirements
regarding various aspects of construction. The evidence revealed that the prime
contractor,
116 REPORTS STATE
COURT OF CLAIMS [W.Va.
American Bridge, had the duty to maintain safety standards and was responsible
for complying with the OSHA regulations, not the respondent.
Although the Court sympathizes with the tragedy which occurred on this project,
the Court is unable to find that there was negligence on the part of
respondent. Construction sites are inherently dangerous. The evidence does not
support the contention that there was negligence on the part of the respondent
which was the proximate cause of the injuries to the claimants. For these
reasons, the Court is of the opinion to, and does, deny this claim.
Claim disallowed.
OPINION ISSUED MAY 3, 1988
STEVEN D. CLOWER
Vs.
DEPARTMENT OF HIGHWAYS
(CC-86- 146)
Gordon T. Ikner, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
GRACEY, JUDGE:
Claimant seeks an award in the amount of $50,000.00 for personal injuries
incurred when his 1981 0mm Miser was involved in an accident on West Virginia
Route 60/6, Greenbrier County, West Virginia. The accident occurred on February
27, 1986. Claimant alleges that respondents negligent
maintenance of the road was the proximate cause of the accident.
Route 60/6 is also known as Otter Creek Road. It is a dirt and gravel road off
of Route 60 and ending at 1-64. During wintertime periods of freezing and
thawing, ruts develop in the road from use by a school bus and personal
vehicles of some 16 families living along the road. Claimant’s home, where he
had lived for about 11 years, is about 7/10 of a mile from Route 60. Early in
the morning, he had taken five school children out to Route 60 to a Christian
school bus stop. He was returning to his home, at about 8:30 a.m., when his
accident occurred. He described the road as being about 14 feet wide. He said
he had rounded a sharp curve and was going up a gentle hill, at a speed of
about 15 to 17 miles per hour, staying out of the ruts, when his wheels slipped
into the ruts and the front of his car hit a tree which protruded into the side
of the roadway. His car was damaged beyond economical repair. His head hit the
rearview mirror, and he suffered a severe scalp laceration. On cross
examination, he admitted that he might have been going 20 miles per hour.
Respondent’s investigator, Claude Blake, testified that the claimant
W.Va.1 REPORTS
STATE COURT OF CLAIMS 117
had told him, on July 11, 1986, that he had been travelling 25 miles per hour
at the time of his accident.
Claimant and his wife testified of making complaints to respondent concerning
the condition of the road during the weeks before the accident.
It is obvious to the Court that Route 60/6 is a secondary road; that primary,
more heavily travelled roads, must be given priority in maintenance by
respondent; that there is hardly anything which the respondent could have done,
in view of time, weather and budget limitations, to alleviate the winter
condition of Route 60/6. The Court, therefore, cannot find the respondent
negligent. The Court is of the opinion that the claimant was negligent in
operating his vehicle at a speed greater than was reasonable under the
circumstances then and there existing and that this was the circumstances then
and there existing and that this was the proximate cause of his accident and
injury.
Claim disallowed.
OPINION ISSUED MAY 3, 1988
JOHN KELLISON, ADMINISTRATOR OF THE ESTATE OF
RICHARD ALLEN KELLISON, DECEASED
VS.
DEPARTMENT OF HIGHWAYS
(CC-85-396)
Thomas R, Michael, Attorney at Law, for claimant.
Nancy J. Aliff and Andrew Lopez, Attorneys at Law,
for respondent.
GRACEY. JUDGE:
This claim was filed by John Kellison, as Administrator of the Estate of his
son, Richard Allen Kellison, whose death occurred as the result of a single car
accident at about 1:00 a. m. on January 3, 1984, on West Virginia Route 7/11, a
single-lane roadway, in Harrison County. Richard Allen Kellison was driving his
father s automobile, a 1965 Buick. West Virginia Route 7/11 is a dead end road.
It proceeds up a hillside to two residences and an elementary school. The
decedent had visited Nina Adkins, whose home was at the top of the hill close
to the dead end. As decedent left the Adkins’ residence, he proceeded on Route
7/11. When he reached a curve near the bottom of a hill, and just before a
small bridge, the vehicle did not make the turn onto the bridge, and left the
travel portion of the road. The vehicle went off the road at the near
118 REPORTS STATE
COURT OF CLAIMS [W.Va.
end of the bridge, landed on its roof and caught fire. The decedent s body was
found in the vehicle.
The claimant contends that the failure of respondent to repair or replace a
missing guardrail on the bridge constituted negligence which was the proximate
cause of the accident and resulted in the death of the decedent.
Respondent contends that notice of the condition of the guardrail on the bridge
was not given until December 28, 1983, which did not provide respondent
sufficient time in which to effect repairs to the guardrail. The road has a
very low traffic count. The postmortem examination record revealed that the
decedent had a blood alcohol level of .21. Respondent contends that the
proximate cause of the accident was the fact that claimant left the travel portion
of the roadway, probably due to his blood alcohol level.
Trooper Greg W. Lemasters, of the Department of Public Safety, testified about
his investigation of the accident. He arrived at the scene at approximately
1:30 a.m. He stated that there was no evidence that the accident vehicle had
been moved prior to his arrival. He noted that he had placed tire tracks on his
diagram in the investigation of the accident. The tires on the left or drivers
side were on the right side of the entrance to the bridge. The tracks of the
tires on the right or passenger side of the vehicle did not come close to the
actual entrance to the bridge.
Several affidavits were submitted by claimant to establish notice to respondent
of the condition of the bridge. The affidavits were by residents ft the area
who had informed the respondent concerning the missing guardrail in the months
of November or December prior to the accident.
Worthy Devericks, Jr., was employed at Cheers, a local bar in the area. He
testified that he had observed the decedent, who was employed at Cheers but was
a customer at the time, sitting at the bar on the evening prior to the
accident. He stated that the decedent appeared to have been drinking. As a
member of the Harrison County Rescue Squad, Mr. Devericks was also involved
with the accident scene. He stated that, from the tracks, it appeared as though
the decedent’s car drove right into the creek.
John V. Onestinghel, Jr., assistant district engineer in charge of maintenance,
testified that the respondent had received two telephone calls on December 28,
1983, concerning the guardrails on the bridge. This was the first notice that
he had received about the bridge.
A careful review of all the evidence indicates that there is no adequate
explanation
for why the decedent drove or for other reasons went off the road and into the
creek instead of
proceeding onto the bridge. For the Court to grant an award, it would necessary
for the Court to
resort to speculation which this Court will not do. See: Cassidy vs. Dept.
of Highways, 15 Ct.CI
177 (1984); Charles & Allison vs. Dept. of Highways, CC-83-356
(Opinion issued December 12,
1986) and Eller vs. Dept. of Highways, 13 Ct.Cl. 402 (1981).
W.Va.J REPORTS
STATE COURT OF CLAIMS 119
For the reasons stated hereinabove, the Court is of the opinion to and does
deny this claim.
Claim disallowed.
OPINION ISSUED MAY 3, 1988
LEONARD W. SPANGLER, JR.
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-29)
Claimant appeared in his own behalf.
Nancy J. Aliff, Attorney at Law, for respondent.
GRACEY, JUDGE:
Claimant brought this action to recover for personal injuries and for property
damage to his truck. On November 19, 1986, at approximately 6:00 a.m., claimant
was operating his truck on U.S. Route 35 near Shawnee Estates when he
came upon an area of the highway covered with water. He was travelling at
approximately 55 miles per hour when the truck went into the water. The
truck spun out of control, slipped on its side, and struck a utility pole.
Claimant alleges that respondent was negligent in failing to place warning
signs that high water was present on the highway.
Keith Arnold Midkiff testified that he watched claimant’s accident when it
occurred. He stated that he had observed high water at this location on
previous occasions. He also testified that he spoke with employees of the
respondent concerning the water problem on several occasions during the ten
years he lived at his location adjacent to the highway. He further stated that
it had been raining all night previous to the accident. He described the
highway as “relatively level” at the location of the incident. He also
described the drainage in the area. He stated that he had discussed drainage
problems in the area with employees of the respondent and was told that the
method to correct any problem was too expensive. These conversations took place
about two years or more prior to the occurrence of this claim.
Claimant explained that the damages to the truck were paid by his insurance as
were his medical bills. He paid $250.00 as his deductible and also lost a
topped for the truck valued at $600.00. Claimant’s insurance company, American
National, requested that claimant reimburse it for amounts which it has paid on
his behalf. This the Court cannot do. The insurance company is not a party to
this claim. Claimant may receive only those personal losses which he sustained.
120 REPORTS STATE
COURT OF CLAIMS [W.Va.
A review of the evidence reveals that another individual, Monica Jividen, also
experienced problems with the high water at the location of claimant’s accident
at approximately 5:00 a.m. See: Jividen vs. Dept. of Highways, issued by
this Court on August 10, 1987. The Court held that the respondent did not have
notice of the hazardous water condition on U.S. Route 35 and denied an award to
the claimant. Similarly, the claimant before the Court herein has not
established that respondent had adequate notice of the high water to place
warning signs. Claimant stated that he had, in fact, traversed this same place
in the highway at 1:00 p.m. on the day of the accident and did not experience
any problems with high water. Claimant failed to establish that respondent had
actual or constructive notice of the high water on the highway on this occasion.
For this reason, the Court is of the opinion to and does deny this claim.
Claim disallowed.
OPINION ISSUED MAY13, 1988
JAMES GERL
VS.
HUMAN RIGHTS COMMISSION
(CC-88- 103)
No appearance by claimant.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
GRACEY, JUDGE:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant seeks $522.78 for travel expenses incurred when he served as a hearing
examiner for respondent State agency. The respondent admits the validity and
amount of the claim and states that there were sufficient funds in respondent’s
budget for the appropriate fiscal year with which the claim could have been
paid; however, the respondent was unable to make payment as the State Auditor
returned the transmittal to the respondent with the explanation that the
Treasury of the State of West Virginia lacked sufficient funds to process the
transmittal.
The Court has reviewed the petition and the Answer and finds the State agency
had sufficient funds within its appropriated budget to pay the claim and for
this reason, the claimant is entitled to an award from the respondent.
In view of the foregoing, the Court makes an award in the amount of $522.78.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 121
Award of $522.78.
OPINION ISSUED MAY 20, 1988
LAWRENCE TERRELL
AND SARAH TERRELL
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-27 1)
Travers R. Harrington, Jr., Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
HANLON, JUDGE:
The claimants are the owners of real estate in Kimberly, Fayette County, West
Virginia. Two cuiverts adjacent to claimants property are State-maintained
culverts. The claimants allege that the culverts were improperly and negligently
placed by respondent. In addition, claimants allege that these culverts were
not properly maintained by respondent. Claimants property sustained flood
damage on two occasions in 1986 and 1987. Claimants seek $12,000.00, which
amount represents damages to both real and personal property.
Claimant Lawrence Terrell testified that he purchased the property between the
years 1975 and 1976. At that time it was unimproved property. Claimants
constructed a house on the property in 1982 or 1983. Railroad tracks are
located between 40 to 50 feet from the house at the rear of the property. The
tracks are at a higher elevation than that of the foundation of the house.
Claimants house fronts on a State-maintained road. The back of their house is
located in the lowest portion of the property.
Mr. Terrell also testified that one of the culverts is 75 to 100 yards from his
residence. This culvert is thirty-six inches in diameter but it was blocked and
the opinion was reduced to nine inches in diameter. During the weekend of July
4, 1986, there were 18 hours of rain in Kimberly. As the aforementioned culvert
was unable to handle the water, the water ran across the road and surrounded
claimants’ house. This resulted in 15 to 18 inches of water in claimants’ home.
Furniture and other personal property was damaged. Subsequently, in April of
1987, there was another heavy rain, and flooding again occurred. As a result of
the first experience in 1986, claimants acted quickly at the onset of this
second storm and did not sustain much damage during the second flooding which
occurred. Claimant Lawrence Terrell stated that the property had not
experienced any flooding during the first 15 years in which he resided in
Kimberly.
122 REPORTS STATE
COURT OF CLAIMS [W.Va.
He described his house. The lower block was waterproofed and caulked. The
waterproofing is at ground level and extends three feet above ground level.
There are no down spouts located on the back of the house. The only down spouts
are those which are located on the front corners of the house. There are footer
drains at the base of the walls of the house.
Robert E. Kelly, a contractor, described the culvert as a circular culvert.
Water passes through only the upper one-eighth of the culvert. He observed the
property a week prior to this hearing. At that time, there was no evidence that
this culvert had been cleaned. He testified that the whole lower level of the
Terrell house was i nined. There was extensive damage to the doors, walls,
floors and carpet. He estimated that the total repair would cost $11,947.00.
James Absher, county road supervisor for respondent, Fayette County, testified
that he did not recall any complaints concerning the area in the vicinity of
claimants property prior to 1986. Neither did he have knowledge of any
complaints between January 1, 1986 and July 2, 1986. He stated that the ditch
line and the external end of the thirty-six-inch culvert have been cleaned out,
but not the inlet end. He confirmed that his records do not show that his employees
ever cleaned this culvert.
Bobby Wardrep, maintenance assistant for District 9 for respondent, testified
that he was familiar with this area. He stated that the benefit of opening up
the exit end of the pipe, but not the inlet end, is that often the force of the
water and the hydraulics on a pipe that size and the water coming off the
mountain will grab clean the pipe out. He admitted that during heavy rain if
the culvert had been cleaned out and 36 inches of it were free, the water would
have run off more freely.
After careful review of the evidence presented, the Court is of the opinion
that the damage to claimants’ property resulted from several factors. The
unusual amount of rain at the time of the floodings contributed to the drainage
problem. The fact that claimants’ house lacks down spouts may have contributed
to the amount of water which flooded the property. In addition, the house is
located in a low-lying, natural drainage area. However, it is the opinion of
the Court that respondent was negligent in its maintenance of the
thirty-six-inch culvert. The respondent had not cleaned out the inlet end of
the thirty-six-inch culvert. The lack of proper maintenance resulted in a
blocked culvert which was the proximate cause of the damage to claimants’ home
and property. However, this block culvert was not the only factor which caused
the flooding and resultant damage; therefore, the Court is disposed to grant an
award to claimants in the amount of $9,000.00.
Award of $9,000.00.
OPINION ISSUED JUNE 27, 1988
W.Va.j REPORTS
STATE COURT OF CLAIMS 123
BARBOURSVILLE BRIDGE CO.
VS.
DEPARTMENT OF HIGHWAYS
(CC-84-201)
C. Robert Schaub, Attorney at Law, for claimant.
Robert F. Bible, Attorney at Law, for respondent.
HANLON, JUDGE:
This claim arises out of a construction project in Cabell County designated as
Project X306-106-O.OO, C-S/BRF-106(OO1)3 and commonly referred to as the East
Huntington Bridge project. The parties are Barboursville Bridge Co., a West
Virginia-based company and the West Virginia Department of Highways, the
respondent. As part of the contract, claimant contractor, hereinafter referred
to as Barboursville Bridge, was required to submit design computations and
working drawings for the construction of cofferdams. On July 17, 1981, one of
the cofferdams constructed by Barboursville Bridge collapsed, resulting in
extra labor and costs. Claimant contends that he design approved by respondent
was faulty and seeks an award f
$272,852.88
Respondent alleges that claimant did not comply with the design specifications.
More specifically, at the time of the cofferdam failure, the cofferdam wa snot
in its final design configuration. The piling was not adequately keyed into the
rock, and the rings were not at the proper elevations.
The East Huntington Bridge has four approach ramps that cross the Guyandotte
River. To construct the approach ramps, it was necessary to erect four piers
and subpiers. To erect the aforementioned bridge structures, Barboursville
Bridge was required to construct four steel sheet piling cofferdams.
David Roberts, project superintendent for claimant as well as the designer of
the failed cofferdam, described the method of constructing cofferdams. The
outside sheet piling must be driven into the ground to a depth sufficient to
provide support and prevent lateral movement. The water is pumped Out, the
overburden of dirt is excavated, and steel rings are placed inside the outer
perimeter of the cofferdams interior. After the rings are placed and the
excavation is completed, the subfooter for the bridge pier is poured. After the
subfooter is poured, the cofferdam wall is braced off against the bottom of the
subfooter. At the time of the collapse, the riverside wall of the cofferdam
gave way when digging operations for the pouring of the subfooter were in
progress.
Barboursville Bridge submitted the originally designed cofferdam structure to
respondent for approval by letter dated January 10, 1981. Respondent found this
design to be
124 REPORTS STATE
COURT OF CLAIMS [W.Va.
unacceptable. Two subsequent designs were submitted March 14, 1981 and April
10, 1981, respectively. The last design, which raised the bottom ring six feet
above the original proposal, to comply with respondents objections, was
accepted, subject to a minor change.
Mr. Roberts stated that in designing these cofferdams the following were
considered: “...
the area which we had to encase to do our
work, the material which we had to go down through, and the height of the
materials and so forth to get our design pressures.” although the four
cofferdams had differing conditions, Mr. Roberts stated that the initial design
was for the worst conditions to be encountered. The sheet piling was to be
driven through all riverbed materials to a depth required to prevent any
lateral displacement of the sheeting. However, the riverbed material was red
shale, which is very unstable when exposed to air or water, rather than
undisturbed rock. Barboursville drove the piling to a depth sufficient to
prevent water from coming into the cofferdam. This is necessary to “key the
rock”, i.e., to provide sufficient lateral support for the piling. Roberts
admitted that it is possible to drive into the piling to the point where the
water is sealed off, yet insufficient to prevent lateral movement. Roberts also
admitted he had no personal knowledge as to the exact elevation of the bottom
ring at the time the cofferdam collapsed, nor could he confirm that the piling
was adequately keyed into the rock at the time of the collapse.
Louis Koshar, an engineer with E. Lionel Pavlo Engineering Company, the
consultant company, testified concerning Special Provision 212.5 which was
written by Pavlo. He stated that this provision requires the claimant to build
an internally braced cofferdam and to drive the sheet piling through all
riverbed materials to a depth sufficient to prevent any lateral displacement of
the sheeting. He explained that attachment A, the original design, was returned
to claimant because the design as submitted was not representative of Piers,
A3, A4, and B4. It was only representative of Pier B3. By returning it. Pavlo
was permitting the contractor to submit separate designs for the other piers.
Comment 7 required the claimant to submit its procedure for excavating,
installing, dewatering the cofferdam, and pouring the concrete in the dry.
Koshar stated that “...
if you went to the support at elevation
495, which was the original design elevation, you might have gotten a
displacement that might have been in the range of three-eighths of an inch He
testified that the provision calls for no lateral displacement. He admitted
that if one keyed into the rock and got three-eighths of an inch displacement,
that would be acceptable. Mr. Koshar has no experience working on cofferdams in
the dry nor had he every been inside a cofferdam. He also stated that the
contractor must assume that the materials into which the cofferdam is to be
keyed will support it.
James Sothen, Supervisor in charge of the Consultant Review Section of the
Structures Division of respondent, testified concerning keying into the rock.
He stated that shale material ‘... is a very
unpredictable material.” It is a fair assumption to say that nobody can really
predict what the material might do. “Well, this particular rock, generally the
top surface once it’s exposed to water and air, generally decomposes quite
rapidly.’ He stated that to reach to a much harder type of shale, it would have
been necessary to drive the sheet piling eleven additional feet. “At 11 feet,
the farther you go, the more resistance on the rock you get,” the witness
stated.
W.Va.] REPORTS
STATE COURT OF CLAIMS 125
The respondent contends that Barboursville Bridges actions in the week
preceding the collapse of the cofferdam caused the collapse. Barboursville
Bridge performed blasting operations inside of the cofferdam to prepare a
surface for the subfooter. Employees also were utilizing an 80-ton crane to
construct cofferdam A4 (the cofferdam which collapsed) within 25-30 feet of the
land side of the nearest wall of the cofferdam. It was assumed that all
construction would be done from equipment on the river side of the cofferdams.
The aforementioned crane was on the land side of the nearest wall of the
cofferdam. In addition, the day before the failure, respondents records
revealed that a “blow in” had occurred on cofferdam A4 requiring water to be
pumped out. This should have provided Barboursville Bridge with notice that the
walls were not sufficiently supported and that precautionary measures should have
been taken to strengthen the support.
The Court, having reviewed all of the evidence, has determined that the major
factor in the collapse of the cofferdam was the design requirement that the
sheet piling be driven into material on the river bottom sufficiently to “key”
into the rock, and that this was to be considered another ring for the support
of the structure, rather than providing the support within the cofferdam
structure itself. This appears to have been an impractical requirement
considering the depth of hard shale material necessary for the sheet piling to
reach in order to attain the desired support. However, the Court is also of the
opinion that actions on the part of Barboursville Bridge contributed to the
failure of the cofferdam and that Barboursville Bridge should have been more
vocal in its objection to the design changes. Therefore, the Court is of the
opinion to grant an award to Barboursville Bridge in the amount of $136,426.00.
Award of $136,426.00.
OPINION ISSUED JUNE 27, 1988
BRADFORD R. CUNNINGHAM
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-229)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
This claim was originally styled incorrectly, and the Court, on its own motion,
amended the style of the claim to reflect the Department of Highways as the
proper party respondent.
126
REPORTS STATE COURT OF CLAIMS [W.Va.
On July 27, 1987, at approximately 1:00 p.m., claimant was travelling north on
I- 79 at Exit 79 when his 1984 Chrysler Fifth Avenue struck a piece of angle
iron in the road. The claimant was travelling 55-60 miles per hour. As a
result of the mishap, a tire on the vehicle was replaced in the amount of $65.57.
Claimant testified that he was travelling in the left land passing another
vehicle at the time of this accident. He attempted to straddle the piece of
angle iron, but it punctured the vehicle’s left, rear tire. He stated that it
had been six months since he had driven this route prior to the accident.
Claimant’s son, David Cunningham, was in the vehicie following claimant’s
vehicle. He testified that he observed his father’s vehicle strike an object in
the road. He stated that the object appeared to be a piece of iron measuring
approximately eight feet in length. He could not say how long the object had
been in the road.
Elmer Wine, Interstate Supervisor of 1-79 for respondent, testified that on
July 27, 1987, his crews would have travelled this portion of 1-79 about 8:00
am. He stated that he would have travelled the area between 9:00 and 10:00 am.
He received no phone calls concerning the presence of the angle iron on the
highway prior to this accident.
The State is neither an insurer nor a guarantor of the safety of motorists on
the highways. Adkins vs. Sims, 130 W.Va. 645, S.E.2d 81(1947). In
order for the respondent to be found liable for the damages incurred, proof of
notice, either actual or constructive, of the hazard in question must be shown.
As the claimant presented no such evidence, the claim must be denied.
Claim disallowed.
OPINION ISSUED JUNE 27, 1988
THOMAS E. HUZZEY
VS.
DEPARTMENT OF MINES
(CC-83-1 19)
Eugene R. Hoyer, Attorney at Law, for claimant.
Henry C. Bias, Jr., Deputy Attorney General, for respondent.
WALLACE, JUDGE:
Thomas E. Huzzey, present Commissioner of the West Virginia Oil and Gas
conservation Commission, brought this action to recover $38,789.99. He acted in
a dual capacity,
W.Va.1 REPORTS
STATE COURT OF CLAIMS 127
from July 1, 1980 through June 30, 1982, as Commissioner and also as Administrator
for the Office of Oil and Gas which is under the Department of Mines. He was
not paid for the latter position and, therefore, seeks $28,000.00. The
additional amount of the claim, $10,789.99, represents salary increase requests
which were denied him in his capacity as Commissioner. Claimant alleges that
W.Va. Code §22-4-1 la, the statute in effect at the time, supports his theory
for the basis of his claim.
James B. Gehr, Chairman of the West Virginia Oil and Gas Conservation
Commission, testified that he received a letter from Walter M. Miller, Director
of the ten Department of Mines, on June 1, 1981. It requested permission from
the Oil and Gas conservation Commission to permit the temporary appointment of
the Oil and Gas Conservation Commissioner, as Acting Administrator of the
Office of Oil and Gas. The only discussion he remembers was that the salary of
the former administrator was $28,000.00. A letter of June 5, 1981, delineated the salary to be paid to the claimant
in his new capacity. Within a month, he received a letter from the
administration indicating that the salary could not be paid. An opinion of the
Attorney General stated that if claimant was paid, the salary had to be paid
from funds of the Department of Mines.
Claimant testified that he assumed the position of Administrator of the Office
of Oil and Gas on a volunteer basis at the request of Walter Miller, Director
of the Department of Mines. He admitted that neither before he was appointed by
Mr. Miller nor after he was appointed by Mr. Miller was he ever told that he
would be paid by the Department of Mines for assuming the position of Acting
Administrator of the Office of Oil and Gas.
Walter Miller, Director of the Department of Mines, testified that the
administrator position is a full-time position. He stated that in July, 1980,
the Mine Inspectors Examining Board contacted him with reference to the
administrator or deputy
director position. As he knew of no one other than the claimant who had the
proper qualifications, he discussed the position with the claimant. He asked
the claimant to assist him in the position temporarily until a qualified person
was found to fill the position. He cannot remember any discussion concerning
compensation for the claimant. Mr. Miller stated that he had no intention of
compensating the claimant as the Acting Administrator.
Arnold Margolin, Conmiissioner of the Department of Finance and Administration
at the time of this incident, testified that he is familiar with the various
agencies and the budgetary procedures of the State of West Virginia. The Office
of Oil and Gas is a special revenue, nonappropriated agency. It is necessary
when this agency hires an administrator or an acting administrator to submit
the payment schedule for that persons salary through channels as required. The
department (then Finance and Administration) would then approve the payment of
the salary to that individual. This is also the procedure for hiring an
employee of the Oil and Gas Conservation Commission. The request for paying a
salary to claimant in his temporary capacity
128
REPORTS STATE COURT OF CLAIMS [W.Va.
as Acting Administrator of the Office of Oil and Gas was denied. Margolin
explained the reasoning of this decision. The two positions inherently had overlapping
areas of responsibility, and it was his opinion that payment for the second job
was permissive, not mandatory. Secondly, the Governor had imposed expenditure
reductions which prohibited th approval of a second salary for claimant.
Additionally, it is not unique for other department heads to assume additional
responsibilities in administering other programs and other offices without
being compensated. He stated too, that he never wrote a letter to the Oil and
Gas Conservation Commission, the claimant, or Mr. Miller denying the salary
request as the salary was never requested.
After carefully reviewing all of the evidence presented, the Court finds that
the claimant has not substantiated his position. W.Va. Code §22-4-1 la with the
language The director of the department of mines ... may employ the oil and gas conservation commissioner as acting
administrator of the office of oil and gas ... and
pay him an additional amount provides a discretionary, rather than a mandatory,
duty. For this reason, the Court is unable to find any evidence or statutory
authority for awarding this claim. Therefore, the Court is of the opinion to,
and does, deny the claim.
Claim disallowed.
OPINION ISSUED JUNE 27, 1988
JO ELLEN LAGOWSKI
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-240)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On August 22, 1987, claimant’s son was operating her car in a westerly
direction at approximately 1:00 p.m. on Route 307 in Beaver, Raleigh County,
when the 1981 Ford Escort struck a tree on the road. The claimant seeks $275.00, which
represents the cost of the damages to the vehicle.
Claimant’s son, Randall Lagowski, testified that he was travelling from his
house in Grandview to Beaver at about 30 miles per hour. It was a clear day,
but the wind was blowing very hard. The tree was located on the right-hand side
of the road about five feet from the edge of the road. The tree blew into the
road at the same time the vehicle which he was operating
W.Va.1 REPORTS
STATE COURT OF CLAIMS 129
arrived at the same spot. The tree had been partially cut. Two days previous to
this, respondent had been cutting down trees in this area. He stated that the
whole tree, rather than a limb, damaged the vehicle.
Emerson Stover, County Supervisor, Raleigh County, for respondent, testified
that he was award of the aforementioned accident. He was notified on the 20th
and 21st days of August. Respondents crews had been cutting and grinding up the
trees in this area prior to this incident.
After a careful review of the record presented in this claim, the Court is of
the opinion that this particular tree was close enough to the road to present a
hazard to the travelling public. Respondent s witness admitted that respondent
s crew was aware of this hazard two days prior to this incident. Therefore, the
Court makes an award in the amount of $275.00 for the damages to
claimants vehicle.
Award of $275.00.
OPINION iSSUED JUNE 27, 1988
KIM P. SHAFFER
VS.
DEPARTMENT OF HIGHWAYS
(CC-87- 186)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On December 17. 1986, at approximately 10:0 a.m., claimant was operating her
1981 Plymouth reliant in a southerly direction on 1-77 when her automobile
struck an expansion joint. Claimant originally filed the claim in both her name
and that of her husband, Daniel J. Shaffer. The car is titled solely in the
name of Kim P. Shaffer. The Court, upon its own motion, amended the style of
the claim to dismiss Daniel 3. Shaffer as a claimant.
Claimant was travelling from her home in Elkview to Charleston. It was cloudy,
and the road was dry. She observed a police automobile on the side of the road
with its flashing blue lights in operation. She also observed an expansion
joint extended perpendicular to the highway surface approximately 12-18 inches
above the highway. She was proceeding in the center lane of the three-lane
highway, and the joint was blocking most of two lanes. She swerved her
130 REPORTS STATE
COURT OF CLAIMS [W.Va.
vehicle to the right, and the automobile struck the joint. She testified that
she was travelling at a speed of 35-40 miles per hour. Damage to the Reliant
included bent rims on two tires, among other damages. She seeks $1,091.06.
Mrs. Shaffer is unaware how long this condition existed. She does not know if
it was reported to respondent previous to her accident.
Herbert C. Boggs, Interstate Maintenance Assistant for respondent, testified
that he was involved with the accident sites location at the time of the
accident, He had not received notice prior to the date of the accident. He was
notified approximately 30 minutes before the accident. He stated that it is
impossible to anticipate problems with expansion joints present on the highway.
For the respondent to be liable for damages caused by road defects of this
type, the claimant must prove that the respondent had actual or constructive
notice of the defect and a reasonable amount of time to take corrective action.
Davis vs. Department of Highways, 12 Ct.Cl. 31(1977); Hoskins vs.
Department of Highways, 12 Ct. Cl. 60 (1977); and Hicks vs. Department
of Highways, 13 Ct.Cl. 310 (1980). It is the opinion of the Court that,
although respondent did have actual notice in this case, the respondent lacked
the time to effect repairs. This claim must be denied.
Claim disallowed.
OPINION ISSUED A UGUST 8, 1988
CHERYL A. BOGGAN
VS.
BOARD OF REGENTS
(CC-87-474)
Claimant appeared in person.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
On October 21, 1987, claimant was walking on Fayette Pike behind the General
Classrooms Building of West Virginia Institute of Technology. She is employed
by the school. She was forced to go around an illegally parked vehicle and as
she did, she tripped. She made contact with a rusty, sharp pipe. The pipe
damaged claimant’s boots, and she seeks $83.99.
W.Va.J REPORTS
STATE COURT OF CLAIMS 131
Claimant testified that the pipe was located on school property in a grassy
area. She contacted the school authorities, and the pipe was removed. She was
accompanied by Clay McGara and admitted that she may have been in a
conversation with him at the time of the incident. She indicated that the
sidewalk in this area is approximately 4-4 1/2 feet
wide. She walks this route approximately once a day and had not observed the
pipe prior to this incident.
The record does not support a finding of negligence on the part of the
respondent. The hazard was not located on the sidewalk. There is no indication
that respondent had either actual or constructive notice of the defect. For
that reason, the Court must deny the claim.
Claim disallowed.
OPINION ISSUED A UGUST 8, 1988
KENNETH DALE BROWNING
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-506)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
This claim was originally styled with respondent party as the State of West
Virginia. The Court, upon its own motion, amended the style of the claim to
reflect the Department of Highways as the proper party respondent.
On November 11, 1987, the claimant was operating his 1980 Ford Thunderbird on
Route 10 in Harts, West Virginia. He was travelling north from Chapmanville to
Harts. A tree limb struck his vehicle. He seeks $2,400.00 for damage to his
vehicle.
Claimant testified that on the day of the incident it was about 4:00 p.m. It
was raining, and there was a slight wind. He was travelling at approximately 50
miles per hour. The tree was located adjacent to the road. The tree limb hit
the windshield of his automobile and impaired his vision, whereupon he lost
control of the car and drove into the hillside. He had seen the tree on prior
occasions and it was his opinion that it was a dead tree. He travels the route every
day, but had not submitted a complaint to respondent concerning the tree.
132 REPORTS STATE
COURT OF CLAIMS [W.Va.
Larry P. Pauley, the county supervisor of Lincoln County for respondent,
testified that he is familiar with the tree in question. The reason the tree
was not cut by respondent was that there was uncertainly about its location on
respondent’s right of way. He had not received any complaints prior to November
11, 1987.
Billy Dale Topping, respondent’s maintenance crew head for the Harts Creek
area, stated that the top of the tree was handing over the highway. He stated
that the neighbor on the adjacent property had requested that respondent’s crew
cut the tree. When the request was made, he did not consider the tree to be a
hazard. It is the policy of respondent to cut trees only if they are hazards
and there is permission from the landowner.
There has been no concrete evidence that the tree is on respondent’s right of
way. In addition, there are contradictory views about whether the tree was
alive or dead. After careful review of the evidence, the Court is unable to
find negligence on the part of the respondent. For that reason, the Court if of
the opinion to, and does, deny the claim.
Claim disallowed.
OPINION ISSUED A UGUST 8, 1988
SHEILA HUNT
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-429)
Claimant appeared in person.
Nancy I. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant has property and a home on State Route 1 in Raleigh County. From
October of 1986 through May of 1987, there was heavy rain in the area.
Claimant’s yard was damaged, and she alleges that this resulted from
respondent’s failure to maintain a ditch line. She seeks $1,000.00.
Claimant testified that she purchased the aforementioned property in October
1984. Her house faces Route 1 south. There is a culvert which goes under Route
1, and a branch of a creek on the lower side of the house. The water flows from
south to north in a natural drain. She stated that she talked with employees of
respondent concerning the problem. She expended $1,000.00 to have a ditch dug
and topsoil replaced.
W.Va.] REPORTS
STATE COURT OF CLAIMS 133
Bill Wilcox, with the Department of Highways, testified that he is familiar
with the claimant’s property. A utility company placed a water line in
respondent’s ditch. After the heavy rain, respondents ditch was “completely
away.” Prior to the heavy rain, there was a ditch line on West Virginia Route 1
in the vicinity of claimant s property. It is sough of claimant’s property, up
the hill. The ditch which claimant had dug is not located on respondent’s right
of way. The ditch line which washed out is approximately 400 feet in length. He
explained that the respondent’s policy is that water, which is in a natural
drain, “...
goes where it goes.” He is unable to say
whether in the 30 or 40 years of the ditch line’s existence it has been
maintained by respondent.
After examining all the evidence submitted in this claim, the Court has
determined that claimants property is in a natural drainage area. With the
exception of October of 1986 through May of 1987, the claimant had no problems
with her property. The unusual amount of rainfall in that time period was
instrumental in the damage to claimant’s property. There is no evidence of any
negligence on the part of respondent, and for that reason, the Court is of the
opinion to, and does, deny the claim.
Claim disallowed.
OPINION ISSUED A UGUST 8, 1988
EDWARD R. ISON AND SHARON G. ISON
VS.
DEPARTMENT OF HIGHWAYS
(CC-88-61)
Claimant Edward R. Ison appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On December 25, 1987, claimant Edward R. Ison was operating his 1983
Chevette on Ferndale Road, near Kenova, Cabell County. At approximately 300
yards from Route 52, the vehicle struck a tree blocking the roadway. The
vehicle was totalled, and the claimants seek
$1,500.00.
Claimant Edward R. Ison testified that
it was about 9:00 p.m. at the time of the accident, and it was raining. He was
travelling at approximately 20-30 miles per hour. He had travelled this route
15 minutes to a half hour before this accident, and he had not observed the
tree then. He described the tree as a “... Locust
tree at least 12 inches in diameter all the way across the road.” It was up an
embankment.
134 REPORTS STATE
COURT OF CLAIMS [W.Va.
Earnest Tracy Ison, a passenger in the vehicle, confirmed the testimony of
claimant Edward R. Ison. Samuel C. Workman, who resides near the accident
scene, testified that he had contacted respondent in reference to problem trees
in this vicinity before this incident.
Donald H. Akers, Wayne County Maintenance Superintendent on December 25, 1987,
testified that he is familiar with this particular section of highway. He was
called on the night in question, and his crew removed the tree. He had not had
any complaints concerning this tree prior to claimant’s accident.
Proof of actual or constructive notice is required for a showing of negligence.
The evidence in this record indicates that the dangerous condition appeared
suddenly and that the respondent promptly moved to take safety precautions as
soon as it became aware of the problem. Moore vs. Dept. of Highways, (Opinion
issued February 19, 1986), and Taylor vs. Dept. of Highways, (Opinion
issued February 19, 1986). The State is neither an insurer nor a guarantor of
the safety of the motorists on its highways. The Court is of the opinion that
negligence on the part of the respondent has not been established and,
therefore, the Court denies this claim.
Claim disallowed.
OPINION ISSUED A UGUST 8, 1988
ROLANDO UGALDE LAYOS
VS.
DEPARTMENT OF HUMAN SERVICES
(CC-85-4 13)
Jennifer F. Bailey, Attorney at Law, for claimant.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision after a hearing on June 22, 1988 and upon a written stipulation.
The claimant and respondent entered into a stipulation. The parties, in the
stipulation, agreed to the following facts:
Prior to June 13, 1983, the claimant was enrolled as a provider of medical
services to eligible recipients of Medicaid services, as administered by the
respondent.
W.Va.j REPORTS
STATE COURT OF CLAIMS 135
On or about June 13, 1983, the respondent terminated the approved status of the
claimant as a qualified provider of such services and refused to continue his
enrollment in the program on the ground that the claimant possessed only a
temporary permit to practice medicine as opposed to an unrestricted license to
practice, and upon the belief, that by reason of such temporary permit,
claimant was not a qualified provider within the meaning of the applicable
federal and state laws, rules and regulations.
On or about March 13, 1984, the respondent reinstated the claimant as a
qualified provider of such services pursuant to a directive of the Health Care
Finance Administration of the United States Department of Health and Human
Services.
The claimant incurred damage to the extent of $33,700.00 as a minimum, by
reason of loss of income for the period June 13, 1983 through April 2, 1984.
All matters in controversy between the claimant and the respondent therein
having been agreed, compromised and settled for the sum of $32,000.00, and the
respondent, in open Court, having admitted its actions were wrong, the Court is
of the opinion that claimant is entitled to an award in the agreed amount.
In view of the foregoing, the Court makes an award in the amount of $32,000.00.
Award of $32,000.00.
OPINION ISSUED AUGUST 8, 1988
LEO LONG
VS.
STATE AUDITORS OFFICE
(CC-88-135)
Claimant appeared in person.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was filed incorrectly. The Court, upon its own motion, amended the
style of the claim to reflect the State Auditor’s Office as the proper party
respondent.
136 REPORTS STATE
COURT OF CLAIMS [W.Va.
On December 19, 1986, the claimant bought property from the Deputy Commissioner
of Forfeited Land for $165.00 in Raleigh County. Subsequent to the purchase of
the property, it was determined that H.G. Farmer owned the property and
claimant seeks $165.00.
The transfer of the property occurred on January 28, 1987. The deed is recorded in Raleigh County Deed Book
719 at page 23.
West Virginia Code §11A-4-25 states the following:
“Whenever, after sale and before confirmation thereof, it is discovered that
the land sold was nonexistent, or that it had been the subject of a duplicate
or improper assessment, or was transferred to others under the provisions of section
3, article XIII of the Constitution, the purchase shall be entitled to a return
of the purchase money. Upon request of a purchaser so entitled, it shall be the
duty of the deputy commissioner to apply to the circuit court for an order
directing the sheriff to return the purchase money. If satisfied that the
application is proper, the court shall enter the order applied for, but no
costs shall be taxed in connection with such an application. If the ground for
entering the order was that the land was nonexistent or the subject of a
duplicate assessment, the order shall also direct the assessor to drop the
erroneous entry of such lands from the land books.” (1947, c. 160.).
The aforementioned statute clearly provides a legal remedy to claimant. For
those reasons as mandated by West Virginia Code § 14-2-14(5), the Court
lacks jurisdiction of this claim. Therefore, the Court is of the opinion to,
and does, deny the claim.
Claim disallowed.
OPINION ISSUED A UGUST 8, 1988
ORVILLE GLEN LUSK
VS.
DEPARTMENT OF HIGHWAYS
(CC-88-58)
W.Va.j REPORTS
STATE COURT OF CLAIMS 137
Claimant appeared in person.
Nancy I. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On January 30, 1988, claimants daughter, Marsha Lusk, was operating her
father’s vehicle, a 1983 Ford EXP, on Route 99 in Bolt, West Virginia. The
vehicle struck loose cinders located on the roadway and extending into the
berm, and entered a pothole. The vehicle was totalled, and claimant seeks
$3,000.00.
Marsha Lusk testified that she was travelling between 40 and 45 miles per hour.
It was 8:30 p.m., and “hazy. She was proceeding from Oceana to Beckley, and was
accompanied by two of her friends. As she started around a curve, the
automobile struck loose cinders, and entered a pothole. She lost control of the
vehicle. The vehicle landed on its side between a tree and a fence post. She
had driven this route the week before this incident, but she had not noticed
the problem then.
Deputy Sheriff Eric Rogers testified he had investigated the accident. He
observed cinders and salt on the roadway. He stated that it was normal snow
removal material. It was foggy, the road surface was wet, and ice had formed
over the hole. The accident vehicle travelled, from the time it left the
roadway, between 120 and 125 feet.
Mr. Dale R. Wooten, foreman at the Bolt Outpost for respondent, testified that
he was familiar with the location of the accident. The records indicate that
this area was treated with normal ice removal treatment on January 28, 1988.
The claimant’s daughter was operating the vehicle at 40-45 miles per hour, an
excessive rate of speed for the conditions then and there existing. Negligence
on respondent’s part, therefore, has not been shown. Since the State is neither
an insurer nor a guarantor of the safety of motorists on its highways [Adkins
vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947)], this claim must be denied.
Claim disallowed.
OPINION ISSUED A UGUST 8, 1988
ALBERTA D. O’DONNELL AND
JOHN G. O’DONNELL
VS.
DEPARTMENT OF FINANCE
138 REPORTS STATE
COURT OF CLAIMS [W.Va.
AND ADMINISTRATION
(CC-82-248)
James T. Cooper, Attorney at Law, for claimants.
Robert D. Pollitt, Assistant Attorney General, for respondent.
WALLACE, JUDGE:
Claimant Alberta D. O’Donnell received injuries when she fell on a sidewalk on
the Kanawha Boulevard side of the State Capitol in Charleston, West Virginia.
The incident occurred on November 1, 1980. Mrs. O’Donnell was walking on the
inside of the sidewalk. Her husband, claimant John G. O’Donnell, was walking on
the outside of the sidewalk. Behind the claimants were Mrs. O’Donnell s mother,
Mary Gallagher Doyle, and her aunt. The group was proceeding from California
Avenue to the front steps of the Capitol to hear a band concert by the Marshall
University band. Mrs. O’Donnell tripped over a raised portion of the sidewalk.
She sustained a broken arm in the fall, for which she and her husband seek
damages in the amount of
$100,000.00.
Mrs. O’Donnell testified that the weather was cool, but it was a nice day. It
was approximately 20 minutes before noon. The sidewalk appeared to be in good
condition. She was wearing low-heeled, sandal-type shoes. She stated that she
caught her foot on the sidewalk and fell face down. After the fall, she and the
others proceeded to the concert, but left when her right arm began to swell and
became painful. It was necessary for her to have surgery on her arm several
days later. She was incapacitated for one month after the surgery. She has
experienced pain and suffering and problems with her left arm since the
accident, which she attributes to the injuries received in this fall.
Claimant John G. O’Donnell testified that there appeared to be a gap of
approximately one inch at the seam of the sidewalk where claimant Alberta
O’Donnell fell.
The Court, having examined the record in this claim, is constrained to find
that there was no evidence as to negligence on the part of the respondent which
would justify an award to the claimants. The sidewalk was not in a state of
disrepair. It was uneven at the place of claimant’s fall, but sidewalks are
more often than not uneven at the seams. Therefore, the Court is of the opinion
to, and does, deny the claim.
Claim disallowed.
OPINION ISSUED A UGUST 8, 1988
W.Va.j REPORTS
STATE COURT OF CLAIMS 139
GEORGE C. OFFUTF
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-427)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On June 10, 1987, the claimant was operating his 1986 Saab vehicle in a
northwesterly direction on Route 45/1, Jefferson County. The vehicle struck a
“rock formation” in the road. Claimant seeks $75.55. This amount
represents the cost of a replacement tire.
The claimant testified that at the time of the accident, he was travelling at
approximately 30 miles per hour at 7:45 a.m. He was proceeding to work. The
weather was good. These rocks were located on the berm, or “false shoulder” of
the road. The rock which claimant s vehicle struck was approximately two inches
from the blacktop surface of the road. It was protruding approximately six
inches above the surface of the road through the blacktop. Vegetation covered
the rock. Claimant travels this route daily. He had not made any complaints
concerning this hazard to respondent.
The State is neither an insurer nor a guarantor of the safety of motorists on
its highways. Adldns vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947). In
order for the respondent to be found liable for the damages incurred, proof of
notice, either actual or constructive, of the defect in question must be shown.
As there was no such evidence presented, the claim must be denied.
Claim disallowed.
OPINION ISSUED A UGUST 8, 1988
CONNIE J. McDOWELL
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-242)
140 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claimant appeared in person.
Nancy I. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On August 17, 1987, claimant was operating her 1987 Dodge Shadow on 1-77, near
Pocatalico in Kanawha County, in the southbound lanes, at approximately 7:30
a.m. The left lane was closed to the travelling public. Claimant’s vehicle
struck a hole located in the left lane and extending approximately one foot
into the right lane. Claimant seeks $226.47 for damages to the automobile’s
left front tire and strut.
Claimant testified that respondent had been working on this portion of 1-77
highway during the summer of 1987. There were barrels located at the areas
where respondent was working, but not at the particular location of the
accident. She had travelled this route several weeks prior to the incident. The
construction workers had been moving from section to section on the highway
while working during the summer months of 1987.
Herbert C. Boggs, Interstate Maintenance Assistant for respondent, testified
that he was aware of work being bone on August 17, 1987. West Virginia Paving
was the contractor for the work being performed. Respondent had inspectors at
the job site who were responsible for seeing that proper traffic control was
maintained and barriers were erected. If barrels are missing, it is the
inspector’s duty to see that the contractor replaces them.
It is the opinion of the Court that there was a breach of duty owed to the
travelling public by respondent to oversee proper safety controls on a project.
However, the claimant was travelling on the interstate highway during the
daylight hours. She also was in a position to observe the cut areas of the
highway. The Court is of the opinion that the claimant was also negligent, and
her negligence was equal to or greater than that of the respondent. The Court
therefore denies the claim based upon the comparative negligence of the
claimant.
Claim disallowed.
OPINiON ISSUED A UGUST 8, 1988
FRED MATTHEY
VS.
DEPARTMENT OF CORRECTIONS
(CC-87-9)
W.Va.] REPORTS
STATE COURT OF CLAIMS 141
Claimant appeared in person.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
The claimant seeks $2,494.11 for expenses and personal property which was
stolen by juveniles who had escaped from Salem Industrial Home, a facility of
the respondent. On November 6, 1986, claimant was hunting. For that reason, he
left his automobile keys under a cushion, on the back porch of his home. That
evening, as he was preparing to retire, he discovered that his automobile and
other items of property were missing. Two weeks following this incident, after
claimant had changed the locks on his home, it was broken into again. He
alleges that respondent was negligent for permitting the juveniles to escape
from the Home.
Claimant described his expenses which included the towing and the storage of
his automobile. The automobile was recovered in Huntington, West Virginia. It
had been damaged. He also described the missing items, among which were guns,
knives, and carpenter tools.
Trooper C.R. Hupp testified that he investigate this incident. Two juveniles
escaped from the Salem Industrial Home in Harrison County, entered claimant’s
home, and stole property. Claimant’s home is approximately two miles southwest
of Salem.
The Court cannot concur with the claimant’s contention. The damage to
claimant’s automobile and the theft would not have occurred had the claimant
not left the keys in an accessible location outside of his home.
Claim disallowed.
OPINION ISSUED A UGUST 8, 1988
OTIS MOLLOHAN
VS.
STATE AUDITOR’S OFFICE
(CC-87-392)
Claimant appeared in person.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
142 REPORTS STATE
COURT OF CLAIMS [W.Va.
On December 3, 1981, claimant bought a parcel of delinquent and forfeited land
in Clay, West Virginia, for $2,050.00. This property belongs to another party,
and claimant seeks $2,050.00.
Claimant testified that this was the first time he has made a purchase at a tax
sale or a sale of delinquent and forfeited land. He did not go to the sale for
the purpose of purchasing the particular plot. After he was supplied a map of
the property which he purchased, he discovered that this property belonged to
another party. The Order confirming the sale of the property was entered on
December 8, 1981. It is recorded in Clay County in Deed Book 131 at page 159.
West Virginia Code §1 1A-4-25 states the following:
“Whenever, after sale and before confirmation thereof, it is discovered that
the land sold was nonexistent, or that it had been the subject of a duplicate
or improper assessment, or was transferred to others under the provisions of
section 3, article XIII of the Constitution, the purchase shall be entitled to
a return of the purchase money. Upon request of a purchaser so entitled, it
shall be the duty of the deputy commissioner to apply to the circuit court for
an order directing the sheriff to return the purchase money. If satisfied that
the application is proper, the court shall enter the order applied for, but no
costs shall be taxed in connection with such an application. If the ground for
entering the order was that the land was nonexistent or the subject of a
duplicate assessment, the order shall also direct the assessor to drop the
erroneous entry of such lands from the land books.” (1947, c. 160.).
The aforementioned statute clearly provides a legal remedy. For those reasons
as mandated by West Virginia Code §14-2-14(5), the Court lacks jurisdiction of
this claim. Therefore, the Court is of the opinion to, and does, deny the
claim.
Claim disallowed.
OPINION ISSUED A UGUST 8, 1988
JOHN R. SHANK
VS.
DEPARTMENT OF HIGHWAYS
(CC-88-2 1)
Claimant appeared in person.
W.Va.j REPORTS
STATE COURT OF CLAIMS 143
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On November 5, 1987, claimant, accompanied by his wife, was walking on
the sidewalk in the vicinity of Kanawha Terrace and Washington Street in St.
Albans. Claimant struck his head on a street sign at the aforementioned location.
He alleges negligence on the part of the respondent, and seeks $124.99 for the
cost of his medical expense.
As testimony indicated that the claim had not been filed against the proper
respondent, the Court, on its own motion, amended the style of the claim to
reflect the Department of Highways as the proper party respondent.
Claimant testified that he had walked in this area the night before the
accident, but he had not observed a sign on that occasion. Claimant’s impact
with the sign resulted in a head injury which required stitches. He has not
paid his medical bills, and is unaware whether or not Medicare will cover them.
There was nothing to obscure claimant’s vision.
The Court finds that claimant was negligent in failing to maintain an adequate lookout
upon the sidewalk where he was walking. The record does not substantiate a
finding of negligence on respondents part. The Court, therefore, disallows the
claim.
Claim disallowed.
OPINION ISSUED OCTOBER 12, 1988
JOHN M. PRATT
VS.
DEPARTMENT OF HIGHWAYS
(CC-88-109)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On March 12, 1988, the claimant was operating his 1987 Nissan Maxima in a
southerly direction on U.S. Route 119 in Clarksburg. His vehicle struck a hole
in the highway, and he seeks $258.86 for damage to the vehicle.
144 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claimant testified that on the day of the accident it was dry and clear. There
was considerable traffic on the road, and he was travelling at approximately 25
miles per hour. The incident occurred at 8:00 in the evening. The hole was
located in the right side of the road. He estimated that the hole was between
10 and 14 inches deep. Claimant had travelled this route three weeks prior to the
incident and had not observed this hole. He is unaware how long it had been in
existence prior to his accident.
Ronald Cork, Harrison County Maintenance Superintendent for respondent,
testified concerning the hole. He stated that he received no complaints in the
two to three week period prior to March 12, 1988. This hole was patched on
March 7, 1988, according to respondents records. He admitted that a hole that
size could have been present on March 10, 1988. He explained that a truck could
have knocked a patch out of the hole.
This Court has repeatedly held that respondent is neither an insurer nor a
guarantor of the safety of travellers on its highways. However, the respondent
does have a duty of using reasonable care in the maintenance of its highways.
In the case of a heavily travelled major highway in this State, the Court has
held respondent liable for failure to repair a hole of this size, as it could
not have developed overnight. See: Lohan vs. Dept. of Highways, 11
Ct.CI. 39 (1975); Balcervs. Dept. of Highways, 11 Ct.Cl. 48(1975); Stone
vs. Dept. of Highways, 12 Ct.Cl. 259 (1979); Bailey vs. Dept of
Highways, 13 Ct.Cl. 144 (1980); Snodgrass vs. Dept. of Highways, 13
Ct.Cl. 246 (1980); and Poole vs. Dept. of Highways, 15 Ct.Cl. 65 (1983).
The Court, therefore, makes an award to the claimant in the amount of $258.86.
Award of $258.86.
OPINION ISSUED NOVEMBER 23, 1988
ALICE HOPE BOMBOY AND
DAVID LYNN BOMBOY
VS.
DEPARTMENT OF HIGHWAYS
(CC-85-298)
Clyde M. See, Jr., Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
The claimants, Alice Hope Bomboy and David Lynn Bomboy, filed this claim in the
amount of $3,500.00 for water damage to their personal property situate
at their residence in
W.Va.1 REPORTS
STATE COURT OF CLAIMS 145
the vicinity of Route 90 in Bayard, Grant County. Testimony, during the hearing
revealed that the amount of damage claimed is $4,301.00. This amount included
replacement costs of a three- year-old hot water tank, a ten-year-old washing
machine and a six-year-old freezer. The claimants purchased their residence on
September 3, 1969. They allege that the negligence of respondent for failure to
properly maintain a culvert on State Route 90 opposite their property resulted
in the basement being flooded and damage to their personal property.
Claimant David Bomboy testified that, until the time of a flood in May, 1985,
he experienced no water problems on his property. He does not know the
dimensions of the Department of Highways culvert which runs under State Route
90. He stated that a terra cotta drainpipe was present on the property when it
was purchased. While the claimant stated he is unaware whether the terra cotta
pipe ties into the respondent s drainage structure, the evidence tends to
establish that it does. The claimant installed an eight-inch plastic pipe at
this location sometime in the 1970’s, which replaced part of the terra cotta
pipe on 100 feet of the claimants property.
On May 31, 1985, there was approximately five inches of rain over a 12-hour
period. Claimant David Bomboy testified that a plastic mild jug and some large
rocks had gotten into the pipe leading from the culvert. He stated that the
culvert is the only opening in the pipe, and that the water backed up and
flooded the basement of his home with approximately 30 inches of water.
Claimant notified respondent of the problem and was able to unclog the pipe
with the assistance of the town council and the volunteer fire department.
In order to correct the problem, claimant David Bomboy dug ditches under the
foundation of his home, tore up the basement floor, and installed floor drains
and a new drain out of the house. Although claimant removed a plastic milk jug
at that time, he cannot say from which pipe it was removed. The drain from his
washer located in the basement did hook into the eight- inch plastic pipe. His
washing machine, kitchen sink, and the sink in the basement are also hooked
into this line.
Terry Kesner, Maintenance Engineer for respondent in Grant and Mineral
Counties, testified that he is familiar with the drainage on Route 90 at the
location in question. He, along with several other of respondents employees,
visited the property on July 12, 1985. He had not received any complaints prior
to July 12, but considerable damage had been done to the streets of Bayard from
the extensive rainfall of May, 1985. The storm was a “100 year storm,” and was
considered to be a “catastrophe.” He stated that none of the drainage
structures on the primary roads are designed to carry more than a 50-year
frequency storm. He reviewed a set of plans from 1929 and determined that 44
lineal feet of reinforced concrete pipe, 18 inches in diameter, was placed
underneath State Route 90 with a standard concrete head wall on the inlet.
Kesner explained that there was no grate located over respondent’s pipe as
there has not been a major construction program or project in Bayard since
1929. In his opinion, the water problem is a direct cause of the fact that
claimants’ basement floor level is lower than the
146 REPORTS STATE
COURT OF CLAIMS [W.Va.
inlet elevation of the 18-inch pipe on State Route 90, and with claimants’
drain entering into this eight-inch pipe and with the eight-inch pipe
obstructed, the water would be forced back up into claimants’ basement. He
could not say of his own knowledge that claimants’ eight-inch pipe is connected
to the State’s culvert.
From the record in this case, it is difficult for the Court to believe that the
diversion of surface water, caused by a stopped culvert, was the sole cause of
the damages claimed. The extensive rainfall was a significant factor in the
water problem. To hold that a diversion of water from a stopped culvert was the
sole, direct, and proximate cause of the damage, is unwarranted from the
evidence. However, it is clear that the absence of a grate on the culvert was
certainly a contributing factor in the flooding.
Claimants’ damages included 60 hours of labor for himself and his son at
$1200.00 as well as $997.00 for the freezer, washing machine and hot water
tank. After considering all of the evidence, the Court is of the opinion that
the most the claimants could recover, if all of the damages were the result of
the respondent’s negligence, would be $2084.00. The Court is further of the
opinion that the respondent was at most 33% negligent, and, accordingly, the
Court makes an award in the amount of $694.67.
Award of $694.67.
OPINION ISSUED NOVEMBER 23, 1988
WILLIAM C. EDENS, JR.
VS.
STATE OF WEST VIRGINIA
(CC-87-218)
John M. Hedges, Attorney at Law, for claimant.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
The claimant brought this action under West Virginia Code §14-2-13a, claims for
unjust arrest and imprisonment or conviction and imprisonment. This is a case
of first impression for the Court.
In accordance with the provisions of the aforementioned section of the West
Virginia Code, the following facts were established at a hearing of this claim.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 147
Claimant William C. Edens, Jr. was arrested, charged by warrant and imprisoned
in Kanawha County for the November 17, 1983 first degree murder of Vincent
Tyree on December 16, 1983. His confinement lasted from December 16, 1983
through December 22, 1983, when he was released on bond.
On January 2, 1984, Gregory C. Burdette was arrested for the November 17, 1983
first degree murder of Vincent Tyree. On April 11, 1986, term of Kanawha County
Court, Gregory C. Burdette was convicted of, among other charges, the first
degree murder of Vincent Tyree, he was subsequently sentenced, upon the murder
count of the indictment, to life imprisonment with mercy.
By Kanawha County Circuit Court Order of January 4, 1984, it was determined that
the State would not present the murder charge against Edens to the Kanawha
County Grand Jury. William Edens, Jr. was released and discharged from his
$50,000.00 bond.
Claimant was questioned by the police approximately one month prior to his
arrest. On December 16, 1983, when the deputy sheriffs took his son to jail,
William C. Edens, Sr. engaged the services of an attorney. In addition, Mr.
Edens paid $2,000.00 to an investigator. He borrowed $12,000.00 on an existing
bank loan and paid the attorney $10,000.00 by check dated December 19, 1983.
The $12,000.00 borrowed cost $6,101.41 in interest from December 1983 through
May 1988.
William C. Edens, Jr. testified that his earnings for the two to three months
prior to his arrest amounted to approximately $600.00 per month. He was then
self-employed and performing automobile repair work. It was difficult for him
to procure automobile body repair jobs after the murder charge against him was
dropped. He did some free-lance painting. At the time of his hearing, he was
employed by Baker Equipment Engineering Company. He stated that he considers
the money which his father expended on his behalf a debt that he owes to his
father and to his family.
It is within the Courts discretion to determine the amount of compensation to
be awarded to the claimant. Therefore, the Court makes an award of $20,000.00
to the claimant, it being the opinion of the Court that such amount will fairly
and reasonably compensate him, including his repayment to his father of moneys
expended by his father in his behalf.
Award of $20,000.00.
OPINION ISSUED DECEMBER 2, 1988
BARRY M. DOSS AND KATHY L. DOSS
VS.
148 REPORTS STATE
COURT OF CLAIMS [W.Va.
DEPARTMENT OF HIGHWAYS
(CC-88-98)
Claimants appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
In the third week of May of 1987, claimant Kathy L. Doss was operating her 1987
Colt Vista automobile on MeJunicin Road in Nitro. Gravel and a tar-like
substance was present on the road. This material splashed onto claimants
automobile. Claimants seek $915.00, which includes $315.00 as the cost
of cleaning the car and punitive damages.
Claimant Kathy L. Doss testified that she was returning home from work at
approximately 5:00 p.m on the day of the incident. She had observed crews in
respondent’s trucks placing material on the road earlier. At the date of
hearing, the claimants had not had the substance cleaned off the vehicle.
Claimant Barry Doss testified that he had observed respondent’s vehicles
placing the tar substance on the road and then returning to place gravel. At
the time of this incident, he remembered that the weather was very warm.
Andrew Morgan Allen, maintenance assistant with respondent, for an area
including Putnam and Boone Counties and Corridor G. testified that the location
of the accident is included in his area. Tar was applied at that location on
April 20, 1987. At that time, respondent patched holes in the road by spraying
asphalt and placing chips in the holes. Between April 20, 1987, and the third
week in May, 1987, he stated that he did not have any complaints concerning the
tar. He was notified of a problem on May 21, 1987. On that occasion, the
asphalt bled. Bleeding is not a problem which normally occurs after tar is
applied. From his experience with this procedure, it is his opinion that the
high temperature caused the problem. He and his crew only chipped” the holes in
the road.
It is the opinion of the Court that the tar was placed on the road by
respondent and the damage to claimants’ automobile occurred when the substance
bled through the road surface which did not have a sufficient amount of chips
to protect vehicles from the splashing of tar. For this reason, the Court was
disposed to make an award to claimants in the amount of $315.00. The Court
disallows that portion of the claim for punitive damages claim.
Subsequent to the hearing, the claimants advised the Clerk of the Court that
their automobile damage claim had been paid to them by their automobile
insurance company, except for the deductible amount of $100.00
W.Va.J REPORTS
STATE COURT OF CLAIMS 149
Award of $100.00.
OPINION ISSUED DECEMBER 2, 1988
JARVEY G. MARCUM
(CC-87-78a)
AND
ROY PAUL MESSER
(CC-87-78b)
Vs
DEPARTMENT OF HIGHWAYS
150 REPORTS STATE
COURT OF CLAIMS [W.Va.
Larry D. Taylor, Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
GRACEY, JUDGE:
On April 28, 1986, claimants Jarvy G. Marcum and Roy Paul Messer were
travelling on County Route 41 through Cabwaylingo State Park in Wayne County.
Claimant Marcum was operating his 1980 Ford Tempo and approached a bridge which
was a steel structure with a double planked wooden deck. As the automobile
proceeded onto the bridge, it suddenly stopped. Both claimants sustained injuries
and the automobile was damaged. Claimant Marcum seeks an award of $25,000.00
for his injuries, medical expenses, pain and suffering, and the amount of his
insurance deductible with reference to the damage to his automobile. Claimant
Messer seeks an award of $50,000.00 for his injuries, medical expenses, pain
and suffering, and for loss of earnings.
Claimants determined that the automobile was brought to a stop on the bridge
when a timber, which was a part of the bridge deck, split and came up through
the floorboard of the automobile, extending approximately 18 inches into the
automobile. The timbers were placed on the deck parallel with the bridge. Each
timber was approximately eight inches wide and two and one-half to three inches
thick. Claimants allege that respondent was negligent in its maintenance of the
bridge.
Respondent contends that the bridge in question is a small, one-lane bridge on
a secondary road which is considered a local service road. The average daily
traffic count at that time was 350 vehicles per day. The respondent also
contends that it did not have notice that there was any problem with the bridge
prior to the claimants’ accident. Respondent s last inspection of the bridge,
prior to the accident, was in September 1984, and several timbers were replaced
on November 30, 1984.
Claimant Marcum testified that he frequently travelled over County Route 41 as
he lived approximately one mile from this particular bridge. He had noticed
that the floor boards on the bridge decks of the bridges along this route would
split with the exception of the bridges which had been replaced with steel
mesh, cement and steel. Although he had seen the condition of the boards, he
state that it had not occurred to him that a board would split and come up through
the floorboard of his automobile. He also testified that about a year before
the incident herein he had made a complaint to employees of the respondent
concerning the condition of the bridges; however, the complaint was general in
nature and was not specifically about the bridge, which is the subject matter
of this claim.
The State is neither an insurer nor a guarantor of the safety of travellers on
its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947). In
order to charge respondent with negligence, actual or constructive notice of
the defect is required. This Court has held in prior claims that respondent’s
failure to discover the condition of a bridge may constitute negligence.
W.Va.] REPORTS
STATE COURT OF CLAIMS 151
White vs. Dept. of Highways, 15 Ct.Cl. 269 (1985); Eller vs. Dept. of
Highways, 13 Ct.Cl. 155 (1980); and Williams vs. Dept. of Highways, 11
Ct.Cl. 263 (1977).
It is reasonable to assume that a wooden bridge deck may deteriorate with the
result that timbers split and then pose a hazard to the travelling public.
Respondent is responsible for inspecting and maintaining bridges in the State
such that the bridges do not pose a problem for the travelling public.
The travelling public proceeding on the States bridges is not expected to
assume that the bridge is unsafe. Rather, the public assumes that the bridges
are safe unless barricades or other warning devices are present. Claimants
reasonably anticipated that they would cross the bridge safely even though the
bridge was not in the best state of repair. They could not anticipate that a
loose timber would suddenly pierce the floorboard of the automobile in which
they were crossing the bridge.
Claimant Marcum was transported to St. Mary s Hospital in Huntington where he
remained through April 30, 1986. He wore a soft collar for six days. He also
underwent dental work at the Huntington Veteran’s Hospital which was
necessitated by reason of the accident. His medical expenses were $1,960.62. He
had a deductible which he paid for the damages to his automobile which he
estimated to be $200.00 or $500.00.
Claimant Messer sustained injuries to the right side of his head and to his
shoulder. He was transported to the emergency room of St. Mary’s Hospital in
Huntington. He wore a neck collar for 25 to 30 days. He received follow-up
medical care from Dr. Hossein Sakhai. He was returned to work for approximately
two weeks but was unable to perform as needed due to pain. He attempted several
other jobs, but he has been unable to work due to the pain which he experiences
when he does physical labor. His medical expenses were $3,321.11.
The Court is of the opinion that the respondent was negligent in the
maintenance of the bridge. Therefore, the Court is disposed to make awards to
the claimants as follows: award of $7,200.00 to claimant Jarvy G. Marcum and
award of $10,000.00 to claimant Roy Paul Messer.
Award of $7,200.00 to Jarvy G. Marcum.
Award of $10,000.00 to Roy Paul Messer.
OPINION ISSUED DECEMBER 2, 1988
PEGGY STOVER
VS.
152 REPORTS STATE
COURT OF CLAIMS [W.Va.
DEPARTMENT OF HIGHWAYS
(CC-88-156)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On May 1, 1988, claimant’s husband was operating her vehicle, a 1979 AMC
Concord, in an easterly direction on the Fifth Avenue Bridge in Huntington. As
he proceeded across the bridge, the automobile struck an expansion joint, and
sustained damage in the amount of $270.60.
Richard Stover testified that the accident occurred at approximately 7:30 in
the evening. It was light and clear. He was accompanied in the automobile by
his daughter. The highways is a one-way street proceeding east. There was heavy
traffic at the time of this accident. Claimant described a “steel plate” which
protected the area where the bridge joins to the asphalt had become dislodged.
The “steel plate” stuck the manifold and the exhaust pipe of the automobile.
The “steel plate” was actually a loose expansion joint. The steel was three or
four inches above the ground. He had driven this route the day prior to this
incident, and, at that time, the expansion joint was not in a hazardous
condition.
Wilson Braley, District 2 Bridge Engineer for respondent, testified that he is
familiar with the Fifth Avenue Bridge. He explained that an expansion joint in
this type of bridge is to allow for thermal expansion of the bridge or movement
of the bridge due to changes in temperature. He did not become aware of the
problem with the joint until he received a cable from the City of Huntington on
May 4, 1988. The city had been notified of the complaint by claimant’s husband
after his accident. Mr. Braley had received no complaints prior to May 1, 1988
concerning the problem.
The bridge where the accident occurred is a well-travelled bridge. This Court
has previously granted awards to claimants for damages which were incurred as a
result of hazardous expansionjoints. State Farm Ins. Co., as Subrogee of
Vernon Marcum, Jr., Individually vs. Dept. of Highways, (Opinion issued
January 18, 1988); Gregory A Harrison vs. Dept. of Highways, 13 Ct.Cl.
229 (1980); and Bubar vs. Dept. of Highways, 12 Ct.Cl. 204 (1978). The
Court is of the opinion that respondent was negligent in the maintenance of the
expansion joint and grants an award to claimant for damages incurred by her
vehicle.
Award of $270.60.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 153
OPINION ISSUED DECEMBER 13, 1988
VECELLIO & GROGAN, INC.
VS.
DEPARTMENT OF HIGHWAYS
(CC-83-207 and CC-83-208)
Cordell M. Parvin and Jim H. Guynn, Jr., Attorneys at Law, for claimant.
Robert F. Bible, Attorney at Law, for respondent.
HANLON, JUDGE:
These claims arise out of two separate projects on Interstate 79 designated as
Project No. 1-79-1(16)29 and Project No. 1-79-1(15)25. The projects will
hereinafter be referred to as Projects (16)29 and (15)25, respectively. These
projects entailed the construction of three bridges, excavation and grading,
and providing drainage for Interstate 79. The two projects are adjacent to each
other with Project 15(25) as the southerly project. Claimant contends that
there were differing site conditions and that errors in the plans caused
claimant to incur extra costs in construction of the projects in the amount of
$5,994,353.74.
Claimant also alleges that it is entitled to recover $9,000.00 in
liquidated damages assessed by respondent on project (15)25 for 90 days at $300
per day as claimant did not complete the project in accordance with the
contract completion date. Claimant asserts that the Court previously determined
this issue in J. F. Allen Co. vs. Dept. of Highways, 12 Ct.Cl. 364
(1981). In that claim, the Court made an award for liquidated damages based
upon the application of the liquidated damage clause in the contract as being
unjustifiable. The Court indicated that “Irrespective of Governor Moore’s oral
proclamation.. .granting a ninety-day extension to the various contractors, the
Court.. is of the opinion that enforcement of the liquidated damage clause in
the contract was unjustifiable.” Claimant herein asserts that the proclamation
applies to it also and should substantiate an award for the liquidated damages
assessed. The Court will treat the issue of liquidated damages in this claim de
novo.
Claimant bid on the northern project designated (16)29 in March 1970 and
was awarded the project. In May 1970, claimant bid on the southern project
designated (15)25. Claimant desired to construct both projects as the
projects were adjacent to each other. Prior to bidding the projects,
representatives of the claimant walked the job sites to examine the terrain and
conditions then and there existing. Claimant reviewed the mass diagram and
grading summary prepared by respondent which accompanied the plans in order to
determine the excavation and fills which constituted the major portion of the
work. The plans indicated that these projects were waste projects meaning that
there would be sufficient material in the cuts to provide the embankment
154 REPORTS STATE
COURT OF CLAIMS [W.Va.
material for the fills. In particular, claimant noted that the mass diagrams
for the projects indicated that the projects were balanced i.e. waste equalled
fill. The plans also indicated the shrink/swell factors for the material to be
excavated. Claimant used these factors in calculating the amount of material
necessary for the fills to be constructed.
The northern project provided for the construction of two bridges with a major
cut of one million cubic yards between the bridges. There was also a major fill
north of the bridges and the remainder of the construction involved channel
changes to the northern end of the project.
The southern project provided for the construction of a major interchange known
as the Amma Interchange. There was a large cut which contained one million
cubic yards of material which appeared to be an amount which would be wasted.
North of this interchange, claimant was to relocate local service route 29 and
relocate a creek which involved several channel changes. The plans contained a
note that the topsoil was unsuitable material which meant it would be wasted.
Claimants representatives determined that the topsoil was suitable and could be
used as embankment material. When claimant bid the projects, the bids were base
upon the premise that claimant would not have a borrow item as there would not
be a necessity for borrow.
On the northern project, claimant proceeded with the construction of the two
bridges which were in close proximity to one another but separated by a large
cut. The material in the cut between Bridge 2681 and Bridge 2682 had to be
transported north to an area known as the ‘million yard fill.” Temporary access
areas were constructed to facilitate the moving from the excavation between the
bridges. North of the million yard fill was an area known as the cemetery fill.
It was impossible to haul material up into that fill due to the high elevation
of the rock. Therefore, the approximately 15,000 cubic years at that location
was wasted.
The projects progressed without major problems until spring of 1972. At that
time, claimant began to suspect that there would not be sufficient material to
complete the embankments on either project with the material that remained to
be removed in the cuts. Claimant instructed its employees to calculate the
amount of fill needed as compared with material in the cuts by taking cross
sections of the project. In June 1982, claimant informed respondent that it
would need to borrow material to complete the projects. Respondent allowed the
borrowing of material, but informed claimant that respondent would not pay for
this item.
The southern project was started at the Amnia Interchange as claimant
determined that the area was accessible and claimant could work through the
winter on excavation which could be wasted. At the pre-construction conference
for this job. respondent’s representative noted that claimant needed to submit
waste areas for approval in order to claimant to waste material. This was done
and claimant proceeded to waste both suitable and unsuitable material in a
large waste site north of the bridge being constructed at the Amma Interchange.
Claimant was able to use approximately 250,000 cubic yards of the cut for the
construction of the interchange.
W.Va.j REPORTS
STATE COURT OF CLAIMS 155
Claimant continued with the projects and did, in fact, borrow material to
complete the embankments. Claimant excavated approximately 300,000 cubic yards
of material at the common cut which claimant used on project (15)25 although
the material came from project (16)29. This action was permitted by respondent,
but claimant was not paid for the borrow on project (15)25. There
was also material borrowed at the site of the office. However, claimant had
wasted material at this site, and then found it necessary to remove the wasted
material to another location in order to excavate borrow material. The work
entailed additional blasting and excavation. The claimant also borrowed
material at the northern end of project (16)29 where there was a shortage of material.
Claimant contends that the shortage of materials was the direct result of an
error in the plans which indicated the shrink-swell factors. It is claimants
position there were errors in the shrink/swell factor of more than 10% on
project (15)25 and 5% or more on project (16)29. Although permission
was granted by respondent to use material excavated from the cut common with
the adjoining project at stations 1510 - 1517
as borrow material to complete this project, the fills were still short, and
claimant required additional borrow. Borrow material was drilled and blasted,
then excavated and hauled to the construction area to satisfy the embankment
shortage.
Claimant relied upon these factors in calculating the amount of material needed
for the embankments. Claimant also contends that the channel change material
which was indicated as suitable material on the plans could not be used as it
was too wet. This material was wasted. Claimant asserts that borrow would not
have been needed if the plans had been correct. As a result, claimant alleges
that respondent breached an implied warranty.
Respondent contends that claimant elected to waste material unnecessarily on
these projects. Respondent referred to Section 207.3.4.2 of the Contract
Specifications which provides:
“If the contractor elects to waste rather than dry suitable replacement
material, if needed to complete embanicments or otherwise fulfill the intent of
the plans, shall be furnished and placed by the contractor at his expense
Respondent alleges that sufficient material existed within the project limits
to fulfill the necessary embankment quantities without requiring borrowing
material from some other site. Respondent contends that claimant’s overwasting,
rather than an error in the shrink/swell factor, resulted in the need for
borrow.
The instant case falls squarely within the reasoning of Ideker, Inc. vs. Missouri State Highway Comm ‘n., 654 S.W.2d 617 (1963). In Ideker, the
Missouri State Highway Commission prepared plans and specifications which
indicated a particular project would be a balanced job and the contractor made
his bid in reliance on their representations. After the project began, the
plans shrinkage factor proved incorrect and the project became a waste job.
The Court, after reviewing the cased on the subject of claims against
governmental bodies involving contracts, concluded that a contractor should
recover against the government entity on a cause of action ex contractu in the
nature of a breach of warranty when these six elements are present:
156 REPORTS STATE
COURT OF CLAIMS [W.Va.
(1) A positive representation by a governmental entity,
(2) Of a material fact,
(3) Which is false or incorrect,
(4) Lack of knowledge by a contractor that the positive representation of the
material fact is false or incorrect,
(5) Reliance by a contractor on the positive representation of a material fact
made by the governmental entity, and
(6) Damages sustained by a contractor as a direct result of the positive
representation of a material fact made by the governmental entity.
The Court, on page 621, reasoned as follows:
Courts subscribing to the theory of a cause of action ex contractu in the
nature of a breach of warranty apparently were motivated by concepts of
fundamental fairness. To avoid an unjust result, they refused to be
circumscribed by the harshness of the doctrine of sovereign immunity and the
principle of contract law that if performance is possible one is not entitled
to extra compensation for unforeseen difficulties encountered. Syllogistically,
where a governmental entity makes a positive representation of a
material fact relied upon by a contractor in calculating its bid, which turns
out to be false or incorrect after work is commenced and occasions additional
expense, the contractor finds himself in the position of one who undertakes one
contract but is confronted with performance of another. The governmental entity
pragmatically speaking, gets the benefit of another contract. If performance
thereof by the contractor entails more expense than was calculated in
submitting its bid, the governmental entity should bear the added cost rather
than the contractor because the former is the beneficiary of necessary but
unbargained for work resulting from its positive representation of a material
fact which turned out to be false or incorrect.
The claimant herein relied upon the mass diagram and the grading summary
provided by the respondent as part of the bid documents. The time frame for
letting bids on these particular contracts was such that a contractor would
necessarily rely upon the information provided. This is certainly realistic.
More importantly, the claimant relief upon the shrink-swell factors stated in
the plans and these factors were inaccurate. The Court is of the opinion that
the claimant has established that it is entitled to recover damages for certain
of the borrow material which it placed in the construction of these projects.
W.Va.j REPORTS
STATE COURT OF CLAIMS 157
Claimant borrowed material originally wasted on project (16)29 for project
(15)25 in the areas of the channel changes. The material was needed as claimant
had wasted the material from the creek in the chai-mel changes. These projects
were to be completed in a two year time frame. Claimant used that portion of
the channel change material which was suitable. However, claimant would have
had to dry the material from the channel changes and then determine its
suitability for the embanicments. The Court is of the opinion that the claimant
chose the most expeditious method, both for itself and respondent of completing
the embankments. Therefore, claimant should be paid for this material as borrow
on project (15)25. Claimant is also entitled to recover for the borrow placed
on (16)29 at the north end where channel changes occurred from station 1645 to
the end of the project.
There was a slide on project (15)25 which claimant contends was caused by an
overload of material on an unstable area. The Court denies any recovery for
work performed on the slide as the claimant also had the same knowledge
concerning the instability of the area.
The Court has also determined that claimant is entitled to recover the
$9,000.00 in liquidated damages assessed on project (15)25. The
respondent did not establish that the failure to complete this project within
the contract period damaged respondent. The amount of $9,000.00 shall be
included by the parties in the documentation of damages.
This claim was bifurcated upon the issues of liability and damages. The Court
directs the parties to submit documentation and a stipulation for damages
incurred by the claimant in accordance with the provisions of this opinion.
OPINION ISSUED DECEMBER 15, 1988
HELEN HANSON AND HOWARD HANSON
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-703)
David K. Liberati, Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On September 4, 1987, claimant Helen Hanson was walking across the Aetnaville
Bridge in Wheeling, Ohio County. As she proceeded down the steps located at end
of the bridge, she lost her balance and fell. As a result of the mishap,
claimant Helen Hanson broke her foot. Claimant seeks $9,500.00 for medical
expenses, loss of work, and paid and suffering.
158 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claimants contend that the absence of a handrail and the disrepair of the steps
constitutes negligence on the part of respondent. Respondent contends that it
did not have notice of the hazardous condition.
Claimant Helen Hanson testified that she had not descended these steps in forty
years. Although she drove over the bridge frequently, she had not observed the
disrepair of the steps. She explained that she was walking across the bridge on
the day of this incident because she had experienced difficulty getting her car
started. She and a friend had been shopping at the nearby Kroger Supermarket.
After purchasing the gas, claimants vehicle failed to start, and she left it at
the gas station. She walked across the bridge because that was the easiest
route to reach her home. Her friend remained with the groceries in the vehicle.
She estimated that it was approximately a one-half mile walk from the gas
station to her home.
Claimant Helen Hanson described the spot on the steps where she feel as being “... like a gully in it.” She was unable to get up after her
fall and was assisted by some passing motorists. Her foot was broken in three
places, and she was required to wear a cast from September 4, 1987 to November
11, 1987. She did not suffer lost wages as she is retired. However, claimant
Howard Hanson took a week off from his employment to stay home to assist his
wife. To this day, claimant experiences pain as a result of her injury.
Both Dorothy Joyce, who accompanied Helen Hanson in her vehicle, and claimant
Howard Hanson testified that the step area was overgrown with weeds and grass.
During the summers, claimant Howard Hanson observed that a group of teenagers
employed by the State normally cleared the weeds away from the steps.
Alan Behr, District 6 Bridge Engineer, testified that prior to September 4,
1987, he was not familiar with the steps where this incident occurred. The
complaint made on September 9, 1987, regarding the Hanson incident was the
first complaint which he had received about the area. Alan Behr explained that
the Aetnaville Bridge is inspected at least every two years and that it had
been inspected in the two years preceding this incident. The inspectors do not
inspect steps.
This Court has held in the past that the State is negligent for failing to
discover and correct a hazard on a bridge which a casual inspection would have
revealed. Randall vs. Dept. of
Highways, 8 Ct.Cl. 147 (1970). Nicola vs. Dept. of Highways, (Opinion issued January 6, 1987). For this reason, the
Court is disposed to make an award in the amount of $2,500.00.
Award of $2,500.00
OPINION ISSUED DECEMBER 15, 1988
DAVE MINCH AND BARBARA MINCH
W.Va.] REPORTS
STATE COURT OF CLAIMS 159
VS.
DEPARTMENT OF HIGHWAYS
(CC-88- 127)
Claimant Barbara Jean Minch appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On April 4, 1988, at approximately 8:00 p.m. claimant was traveling on
Interstate 70 in the vicinity of Moundsville, Marshall County, when her 1981
Ford Escort station wagon struck a hole. She seeks $85.21 for replacement of
one tire which was damaged in this incident and lost wages in the amount of
$15.75.
Claimant Barbara Jean Minch testified that it was daylight, and the weather was
good at the time of the accident. She described the hole as deep enough to
expose the reinforcing rods in the concrete of the road. The hole was in the
right hand lane approximately two feet from the white line at the edge of the
road. She had travelled this route on the morning of April 4, 1988, but had not
observed the hole. After he accident, she observed other vehicles hit the hole.
This Court has repeatedly held that respondent is neither an insurer nor a
guarantor of the safety of travellers on its highways. However, the respondent
does have the duty of using reasonable care in the maintenance of its highways.
In the case of a heavily travelled major highway in this State, the Court has
held respondent liable for failure to repair a hole of this size, as it could
not have developed overnight. See Pratt vs. Dept. of Highways, (Opinion
issued October 12, 1988); Poole vs. Dept. of Highways, 15 Ct.Cl. 65
(1983); Snodgrass vs. Dept. of Highways, 13 Ct.Cl. 246 (1980); Bailey
vs. Dept. of Highways, 13 Ct.Cl. 144 (1980); Stone vs. Dept. of
Highways; 12 Ct.Cl. 259 (1979); Baker vs. Dept. of Highways, 11
Ct.Cl. 48(1975); and Lohan vs. Dept. of Highways, 11 Ct.Cl. 39 (1975).
The Court is of the opinion to, and does, make an award to claimants in the
amount of $100.96.
Award of $100.96.
OPINION ISSUED DECEMBER 15, 1988
R. L. BANKS & ASSOCIATES, INC.
VS.
PUBLIC SERVICE COMMISSION
(CC-88-302)
160 REPORTS STATE
COURT OF CLAIMS [W.Va.
No appearance by claimant.
Janet F. Steele, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent’s Answer.
Claimant seeks $4,799.00 plus interest for professional services provided
respondent in connection with U. S. Court proceedings on the closure of CSX
facilities at Hinton, West Virginia. There was no written contract between the
parties; however, there was an oral agreement for the services. Claimant failed
to submit an invoice for the services rendered in the proper fiscal year;
therefore, claimant has not been paid. The respondent admits the validity and
amount of the claim itself, but denies the interest amount being claimed.
West Virginia Code Chapter 5A, Article 3, Section 1 provides for the
payment of interest upon contracts with State agencies for printing or commodities
if payment is delayed for more than 90 days. This is not a claim for
commodities or printing; therefore, the interest provision of the statute is
not applicable.
In view of the foregoing, the Court makes an award in the amount of $4,799.00
and denies the portion of the claim for interest.
Award of $4,799.00
OPINION ISSUED DECEMBER 15, 1988
CHRISTOPHER LEE UMBERGER
VS.
DEPARTMENT OF CORRECTIONS
(CC-86-41 1)
Claimant appeared in person.
Timothy Murphy, Special Assistant Attorney General, for respondent.
PER CURIAM:
Claimant was transferred from the Moundsville institution to the Martinsburg
institution on July 10, 1986. At that time his personal property was
inventoried and placed in a holding cell.
W.Va.j REPORTS
STATE COURT OF CLAIMS 161
Upon his return on July 11, 1986, he discovered that a number of items were
missing. He seeks $356.44 which amount represents the value of the lost
property.
Claimant testified that the missing items included: NuBalance sneakers, Stetson
eye glasses, two Reebok sweat pants, and two Reebok sweat tops, and two pairs
of Nike shorts. Respondent’s counsel admits that the value of the property
equals $270.00. Claimant was unable to submit receipts or cancelled checks for
confirmation of the worth of the items. He stated that he lost everything at
the time of his arrest.
Respondent’s counsel asserted that the value of the eye glasses was less than
the amount stated. The clothing is at least four months old, and the value of
the clothing should be reduced accordingly due to its age.
It is the opinion of the Court that respondent s counsel failed to present
evidence of the value of the disputed items, with the exception of the
statement concerning the age of the items. The Court finds that the fair value
of the items is $300.00; therefore, the Court makes an award to claimant in the
amount of $300.00.
Award of $300.00.
OPINION ISSUED DECEMBER 19, 1988
RANDY CLINE AND LEONA KAY CLINE
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-69)
Warren R. McGraw, Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
HANLON, JUDGE:
Claimants were travelling in a northerly direction on W.Va. Route 10, Wyoming
County, approximately five miles from Oceana. Claimant Leona Kay Cline was
operating claimants’ 1980 AMC, and her husband, Randy Cline, was a passenger in
the vehicle.
Claimants’ vehicle left the right hand or travel lane of the highway, skidded,
slid around, and struck a 1974 Oldsmobile 442 which was proceeding south on
W.Va. Route 10. Following the impact with the automobile travelling in the
opposite direction, claimants’ vehicle proceeded over an embankment. Claimants
allege negligence on the part of respondent for its failure to
162 REPORTS STATE
COURT OF CLAIMS [W.Va.
maintain this section of roadway. Claimants contend that respondents employees
had left dirt in the road while maintaining the ditch line. Claimants view the
alleged dirt or debris on the roadway as a hazard and seek compensation of
$25,000 .00 for the loss of their automobile and for permanent disabling
injuries to claimant Leona Cline.
Respondent asserts that ditching operations were performed by respondent three
days prior to this accident, on June 24, 1986, by means of accepted engineering
practice, and that material was not left on the highway by its ditching crew.
Claimant Leona Kay Cline was travelling at a speed of approximately 35-45 miles
per hour. She had successfully completed her driving test at Jesse, and was
returning home. The roadway was damp as it had been raining. Both claimants
admitted that they had no personal knowledge as to how the alleged material
came to be on the roadway surface as they had not observed respondent’s men
working at the scene. The claimants’ vehicle was a total loss, and they gave it
to another party. Therefore, claimants did not receive any salvage value for
the vehicle.
Ezra Watson Keyser testified that he was the driver of the other automobile
involved in this accident. He was travelling alone from his home in Lincoln
County to Princeton. He estimated that the accident occurred between 2:00 and
3:00 in the afternoon. He stated that he did not observe any dirt on his side
of the roadway. He mentioned that photographic evidence revealed debris on his
automobile. He was unable to discern whether it was debris from the roadway or
debris from his automobile.
Respondent’s employees provided details concerning the area of the accident. At
the time of this accident, the average daily traffic count was 5,100. The
Uniform Traffic Accident reports and operators’ reports were reviewed, and it
was determined that the Cline accident was the only one within the two-mile
stretch checked during June 24, 1986, on Route 10 at the accident site. The
individual who operated the 40137, or back grader, confirmed the existence of
the ditching operations and remembered that a broom had been utilized. The
Supervisor for Wyoming County did not receive any complaints concerning the
ditching operation. Testimony revealed that it is impossible to determine the
points where crews start and finish maintenance operations from the pertinent
records regarding ditching operations by respondent.
To make a determination of respondent’s negligence would require speculation on
the part of the Court. This Court has consistently held that the State is
neither an insurer nor a guarantor of the safety of persons travelling its
highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). There was
no evidence presented that respondent was negligent in its maintenance of this
roadway. In order to find respondent liable, the Court would be required to
speculate, which it will not do. The Court, therefore, is of the opinion to and
does deny the claim.
Claim disallowed.
W.Va.] REPORTS
STATE COURT OF CLAIMS 163
OPINION ISSUED DECEMBER 19, 1988
ANITA ANN ERWIN AND
CRAIG SCOTT ERWIN
VS.
DEPARTMENT OF HIGHWAYS
(CC-88- 154)
Claimant Anita Ann Erwin appeared in
person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
This claim was originally styled in the name of Anita Ann Erwin; however,
testimony indicated that the vehicle, a 1982 Chevrolet Celebrity, was titled in
the names of Anita Ann Erwin and Craig Scott Erwin, and the Court, on its own
motion, amended the style to include Craig Scott Erwin as a party claimant.
Claimant Anita Ann Erwin testified that the vehicle struck “a hooved up piece
of asphalt” on Corridor G (U.S. Route 119) while she was travelling from Logan
and proceeding toward Williamson. The incident occurred on April 21, 1988,
between 1:00 and 1:30 p.m. It was dry and sunny. The oil pan and the
transmission of the vehicle were damaged in the amount of $645.51. Claimant
Anita Erwin is unaware when this damage to the roadway occurred.
Mike Kolota, Jr., Acting Supervisor of Logan and Mingo Counties for the
respondent at the time of this incident, stated that he is familiar with the
accident site. He travelled on U.S. Route 119 at approximately 9:00 the morning
of April21, 1988, and the roadway was “... cracked
a little bit.” He returned between 1:30 and 2:00 p.m. At that time, he observed
the hazard and dispatched men as flagmen and to place signs. This was the first
notice he had of the hazard.
John M. Sammons, Supervisor of Corridor G for respondent, testified that he
reviewed the pertinent records regarding complaints. He checked with the clerks
and reviewed the telephone logs. Respondent had received neither calls nor
complaint forms pertaining to that location.
John M. Sammons, Supervisor of Corridor G for respondent, testified that he
reviewed the pertinent records regarding complaints. He checked with the clerks
and reviewed the telephone logs. Respondent had received neither calls nor
complaint forms pertaining to that location.
The State is neither an insurer nor a guarantor of the safety of motorists on
its highways. Adkins vs. Sims, 130 W.Va. 645, S.E.2d 81(1947). In order for the
respondent to be found liable
164 REPORTS STATE
COURT OF CLAIMS [W.Va.
for the damages incurred, proof of notice, either actual or constructive, of
the defect in question must be shown. The evidence in this record indicates
that the dangerous condition appeared suddenly and that the respondent acted
promptly to take safety precautions as soon as it became aware of the problem. Barnhart
vs. Dept. of Highways, 12 Ct.Cl. 236 (1979), Moore vs. Dept. of
Highways, and Taylor vs. Dept of Highways, CC-85-167 (Opinion issued
February 19, 1986). The Court is of the opinion that negligence on the part of
the respondent has not been established, and, therefore, the Court denies this
claim.
Claim disallowed.
OPINION ISSUED DECEMBER 19, 1988
CHARLES R. WELCH, SR.
AND PHYLLIS J. WELCH
VS.
DEPARTMENT OF HIGHWAYS
(CC-88-96)
Claimants appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On February 6, 1980, at about 9:30 p.m., claimants and their son were returning
home from church in their 1980 Chevette. Claimant Charles R. Welch was
travelling on Route 13/2 into Kanawha Falls, the place of their residence.
Travelling at a low speed, he encountered ice on the roadway at the location of
a hairpin turn. He lost control of his vehicle on the ice and slid into a
retaining wall. Claimants seek $441.90, which amount represents the damages to
their automobile.
Claimant Charles R. Welch testified that he travelled this route practically
every day as he lives four tenths of a mile from the accident site. He had
observed the water on the roadway the evening of this accident when he and his
family were driving to church. The weather conditions were clear and cold.
Evidently, ice formed during the time of claimants’ stay in church.
Brady N. Workman, foreman at respondent’s Glen Ferris Garage, testified that he
is familiar with the area of the accident. This road had been treated prior to
February 6, 1988. He stated that he had not received any complaints concerning
ice at the place of the accident on the night it occurred. He explained that
there is a small area of ditch line at that location because it is difficult to
get in there to make a ditch line.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 165
Roads in this State, in the winter months, frequently accumulate frost. An
isolated patch of ice on a highway is generally insufficient to establish
negligence on the part of respondent. Cole vs. Dept. of Highways, 14
Ct.Cl. 350 (1983). It is well established that the State neither insures nor
guarantees the safety of travelers on its highways. Adkins vs. Sims, 130
W.Va. 645, 46 S.E.2d 81(1947). For these reasons, the Court is of the opinion
to, and does, disallow this claim.
Claim disallowed.
OPINION ISSUED DECEMBER 29, 1988
JACK S. HORNER, D/B/A
JADALEE STABLES
VS.
DEPARTMENT OF COMMERCE
(CC-88- 164)
Claimant appeared in person.
J. Bradley Russell, Assistant Attorney General, for respondent.
PER CURIAM:
Claimant has a five-year contract with the Department of Commerce to provide
horses to tourists at Watoga State Park, a facility of the respondent. On
December 22, 2987, the barn at Watoga State Park was destroyed by fire,
apparently set by an arsonist. Claimant seeks $5,827.00 for personal items and
equipment which were damaged in the fire.
Claimant testified that he had formerly maintained insurance coverage on his
horses and equipment. However, at the time of this incident, claimant had
discontinued his insurance coverage, allegedly at the suggestion of Craig
Ackerman, Superintendent of Watoga State Park. He said he had been informed
that the State’s insurance policy was adequate to cover the items in the barn.
The contract, or License Agreement, between Watoga State Park and Jack S. Homer
is dated October 28, 1981. The pertinent provisions of the agreement are the
following:
“2. The Licensee under this agreement shall be deemed an independent contractor
and as such shall be solely responsible for all debts and other liabilities
incurred in the operation of his business under this license agreement.
166 REPORTS STATE
COURT OF CLAIMS [W.Va.
8. The Licensee assumes all risk in the operation of this license and shall be
solely responsible and answerable in damages for all accidents or injuries to
persons or property and hereby covenants and agrees to indemnify and keep
harmless the State of West Virginia, the Department and its officers and
employees from any and all claims, suits, losses, damage or injury to persons
or property of whatsoever kind and nature, whether direct or indirect, arising
out of the operation of this license or the carelessness, negligence or
improper conduct of the Licensee or any servant, agent or employee which
responsibility shall not be limited to the insurance coverage herein provided
for.
18. This instrument contains the entire agreement and all representations of
the parties hereto, and no modifications or additions shall be valid and
binding on the Department unless in writing and signed by an officer thereof,
subsequent to the date of this license.”
It is clear from the terms of the lease agreement that claimant, as an
independent contractor, assumed all risk in the operation of business, and that
the contract represents the complete agreement. The Court finds that the terms
of the lease agreement are clear as to the absence of liability on the part of
respondent. Therefore, the Court is of the opinion to, and must, deny this
claim.
Claim disallowed.
OPiNION ISSUED DECEMBER 29, 1988
RALPH W. PALMER
VS.
DEPARTMENT OF HIGHWAYS
(CC-88- 137)
Claimant appeared in person.
Nancy 3. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On February 1, 1988 claimant was traveling south on Route 2, in his 1978 Ford
Fairmont. The vehicle struck a rock and incurred damage. Claimant seeks $650.00
for the damage.
Claimant testified that the location of his accident was approximately two
miles from Wilson Park. The rock, which was a “... good bit larger than a bushel basket,” had come from
W.Va.j REPORTS
STATE COURT OF CLAIMS 167
the hillside. It was almost in the center of the double lane of the highway. It
was dark and raining at the time of the incident and he was traveling at a
speed of approximately 40-45 miles per hour. Apparently, the rock had fallen
only a minute or two before his vehicle struck the rock. There is a falling
rock sign at the location of the accident. He paid $600.00 for the automobile a
month and a half prior to the accident. He admitted that he had observed rocks
in that area on previous occasions. He travels the route approximately five
times a week.
The State is neither an insurer nor a guarantor of the safety of motorists on
its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947). The
Court has held on numerous occasions that the unexpected falling of rocks onto
a highway without a positive showing that respondent knew or should have known
of a dangerous condition is insufficient to justify an award. Hammond vs.
Dept. of Highways, 11 Ct.Cl 234 (1977), Adkins vs. Dept. of Highways, 13
Ct.Cl. 307 (1980) and Hatfield vs. Dept. of Highways, 15 Ct.Cl. 168
(1984). As no evidence was presented to establish notice of the rock in the
road, the Court must deny the claim.
Claim disallowed.
OPINION ISSUED DECEMBER 29, 1988
SUZANNE STEINMAN
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-717)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On December 8, 1987, at approximately 9:00 p.m. claimant was operating her 1987
Mazda on Route 88 near Bethlehem, Ohio County, when her vehicle struck a hole.
A rim had to be replaced at a cost of $250.00 and one tire replaced at a
cost of $110.00.
Claimant testified that at the time of the incident it was dark, rainy and
foggy. The highway had several holes. She estimated the hole to be six to eight
inches deep and as wide as a tire. The hole extended for at least six inches
form the berm into the travel portion of the highway. The claimant travels this
route two to three times a week, but she had not observed the hole when she
last travelled it.
168 REPORTS STATE
COURT OF CLAIMS [W.Va.
The State is neither an insurer nor a guarantor of the safety of motorists
travelling on its highways. Adkins vs. Sims, 130 W.Va. 645 (1947).
In order for the respondent to be found liable, it must be shown that the
respondent had notice, either actual or constructive, of the defect in the
road. As no evidence was presented that the respondent had notice, the claim
must be denied.
Claim disallowed.
OPINION ISSUED DECEMBER 29, 1988
THOMAS TREAD WAY
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-4 17)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant is the former owner of a 1981 Chevy truck which was damaged when it
stuck an uncovered hole on the Dawes Bridge, Cabin Creek, Kanawha County, on
September 20, 1987. The hole had been covered with a metal plate which was
missing on the day of this incident. The automobile required two new tires and
an alignment job in the amount of $175.77.
Claimant testified that it was dry and that he was travelling at 35-40 miles
per hour. He travels this route frequently and had contracted respondent three
days prior to this incident concerning the missing plate. The day following his
complaint, the plate was replaced. Claimant was following a coal truck at the
time of this incident, and he stated that coal trucks knock the plate off the
hole. Although the respondent may have had actual notice of the existence of
the missing plate, the claimant was operating his vehicle at a speed which was
excessive for the known hazardous condition of the road. (Jarrell vs. Dept.
of Highways, Opinion issued January 15, 1986)
It is the opinion of the Court that although the respondent may have been
negligent, the negligence of the claimant was equal to or greater than that of
the respondent. The Court therefore denies the claim.
Claim disallowed.
W.Va.j REPORTS
STATE COURT OF CLAIMS 169
OPINION ISSUED FEBRUARY 3, 1989
CAROL 3. BAKER
VS.
DEPARTMENT OF HIGHWAYS
(CC-88- 146)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action to recover damages sustained to her automobile, a
1983 Oldsmobile, when it struck a hole in Route 50 near Parkersburg, West
Virginia.
The claimant, Carol J. Baker, testified that she was travelling towards
Parkersburg in her 1983 Oldsmobile, on Route 50 in Wood County. The incident
occurred on April 26, 1988, at approximately 6:00 p.m. The weather was clear.
Claimant explained that she heard a siren from an emergency vehicle. She was
travelling at approximately 30-35 miles per hour. She pulled her
automobile off the travel portion of the road onto the berm. The automobile
struck a hole in the berm causing damages to her automobile. The wheel and rim
were replaced for a total cost of
$90.00.
The claimant travelled the road infrequently prior to her accident. The hole
was located at the edge of the road on the berm. The claimant’s vehicle struck
the hole before she noticed it. Claimant described the hole as being
approximately six inches deep. There were vehicles travelling in front of
claimant. These vehicles also pulled off the road for the emergency vehicles,
but were beyond the point at which claimant drove onto the berm.
This Court has previously considered the issue of claims involving damages to
vehicles where the berm of the road is in a defective condition. The Court has
generally held that,where the respondent provides a road which is too narrow
for the passage of two vehicles, the respondent will beheld liable for damages
which occur when claimants must use the berm of the road and that berm is in a
defective condition. See White vs. Dept. of Highways, 11 Ct.Cl. 138
(1976) and Conn vs. Dept. of Highways, 13 Ct.Cl. 194 (1980).
The Court has also held that a claimant who has not been forced onto the berm
will not recover for damages sustained from a defect in the berm. Sweda vs.
Dept. of Highways, 13 Ct.Cl.
249 (1980).
170 REPORTS STATE
COURT OF CLAIMS [W.Va.
It is the opinion of the Court that the claimant herein was not negligent in
proceeding onto the berm for an emergency vehicle but was placed in a position
of having to use the berm, and the berm should have been in usable condition. Photographic
evidence reveals that the berm was defective. The Court has determined that the
respondent was negligent in its maintenance of the berm at the site of this
accident. Therefore, the Court is of the opinion that claimant is entitled to
an award for damages to her vehicle in the amount of $90.00.
Award of $90.00.
OPINION ISSUED FEBRUARY 3, 1989
THE BOARD OF EDUCATION OF THE
COUNTY OF McDOWELL, A CORPORATION,
TONY J. ROMERO, AS PRESIDENT, AND
BENNY J. CASSADY, LEONARD H. NESTER,
NOAH DELL ORSO, AND TED OSBORNE,
AS MEMBERS OF SAID THE BOARD OF
EDUCATION OF THE COUNTY OF McDOWELL,
A CORPORATION
VS.
THE WEST VIRGINIA BOARD OF EDUCATION
(CC-84- 128)
AND
THE BOARD OF EDUCATION OF THE
COUNTY OF McDOWELL, A CORPORATION,
BENNY J. CASSADY, AS PRESIDENT, AND
J. CURTIS HARMON, LINDA K. DOUGLAS,
HOBERT F. MUNCEY AND TED D. OSBORNE, AS
MEMBERS OF SAID THE BOARD OF EDUCATION
OF THE COUNTY OF McDOWELL, A CORPORATION
VS.
THE WEST VIRGINIA BOARD OF EDUCATION
(CC-85-1 14)
David Allen Barnette, Attorney at Law, for claimant.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
W.Va.] REPORTS
STATE COURT OF CLAIMS 171
Claimants brought this action to recover funds which it expended to satisfy
judgements rendered by the McDowell County Circuit Court. The claims was
submitted to the Court upon a written Stipulation of Facts and Memorandum of
Law. The facts of the claims are as follows:
In 1973, a Special Levy Election in McDowell County provided a supplement of $55.00 to all non-teaching personnel for five years,
commencing with the 1974-75 fiscal year.
In 1975, the West Virginia Legislature passed Senate Bill 121 which provided a
minimum pay schedule for non-teaching personnel and teaching personnel which
became effective July 1,
1975.
The McDowell County Board of Education requested an interpretation of the
application of the Special Levy Election provisions and Senate Bill 121. More
specifically, the Board wished to determine whether the $55.00 supplement was in addition to the minimum pay schedule
in Senate Bill No. 121 or was included as a part of the minimum pay schedule.
The Superintendent of the State Board of Education advised the McDowell County
Board of Education to include the $55.00 supplement as part of the minimum
salary schedule.
The McDowell County Board of Education was then challenged by the McDowell
County Non-teaching Employees Association in McDowell County Circuit Court.
The McDowell County Circuit Court issued a decision supporting the position of
the
McDowell County Board of Education. However, on December 11, 1979, the West
Virginia
Supreme Court of Appeals held that the McDowell County Board of Education
failed to properly
pay the non-teaching employees the supplement required to be paid under the
provisions of the
Special Levy Election.
The McDowell County Circuit Court thereafter granted ajudgement against the
McDowell County Board of Education in the amount of $1,355,936.97, which
judgement has been satisfied.
A second Special Levy Election was also instituted and a judgement was rendered
against the Board in the amount of $949,879.63 to satisfy the pronouncement of
the Supreme Court in the original case.
The McDowell County Board of Education attempted to recover these two judgements
in an action against the State Board of Education in the Kanawha County Circuit
Court. However, the complaint was dismissed based upon the provision of
immunity in Article VI, Section 35 of the West Virginia Constitution. The West
Virginia Supreme Court denied a petition to review the Kanawha County Circuit
Court decision, thus upholding the immunity provision.
It is the claimants’ position that the McDowell County Board of Education was
required to follow the advice of the West Virginia Board of Education.
Therefore, there is a moral
172 REPORTS STATE
COURT OF CLAIMS [W.Va.
obligation on the part of the State Board of Education to reimburse the
McDowell County Board of Education for the monies expended to satisfy the
judgements rendered against it.
The respondent contends that the McDowell County Board of Education made a
conscientious decision in its adherence to the advice from the West Virginia
Board of Education. The McDowell County Board of Education paid its
professional personnel the supplement provided in the Special Levy Election or
$105.00 over and above the minimum salary schedule provided by the State
formula. However, the McDowell County Board of Education included the
supplement of the special Levy Election as part of the minimum salaries for its
non-teaching personnel.
Not only was this decision based upon information furnished by the West
Virginia Board of Education, the West Virginia Legislature in enacting Senate
Bill No. 121 specifically based its own fiscal calculations on the inclusion of
the local salary supplement in meeting the minimum pay scales.’
The affidavit of Willis W. Moore which is a part of the stipulation in this
matter makes this clear.
“On this day there appeared before me the undersigned authority, one WILLIS W.
MOORE, who,
being first duly sworn, deposes and says that is employed by the West Virginia
Department of Education in the Bureau of Finance and Services as Assistant
Bureau Chief in charge of School Finances. The affiant further
avers that:
1. He was employed by the West Virginia Department of Education in the Bureau
of Finance at the time the Legislature of the State of West Virginia enacted
Engrossed Senate Bill No. 121, establishing minimum pay scales for nonteaching
personnel of the West Virginia public schools in 1975.
2. Several counties, including McDowell County, had authorized adoption of
excess school levies at special levy elections to continue supplements to state
basic salaries of, among others, regularly employed full- time nonteaching employees
in certain amounts specified in the levy calls.
3. Prior to the enactment of engrossed Senate Bill No. 121, the Senate Finance
Committee requested a fiscal note from the West Virginia Department of
Education, describing the fiscal impact of the establishment of state minimum
pay scales for nonteaching personnel in the public schools, including the
amounts of local funds already being paid by the county boards of education to
such personnel (now described as service personnel) and the corresponding
amounts which would have to be appropriated by the Legislature to bring their
salaries up to the state minimum pay scales.
4. The affiant assisted in preparation of the fiscal note which, when first
submitted to the Legislature, described the fiscal impact, using the base
salaries paid to nonteaching personnel and not including the county
salary supplements as part of the local funds in arriving at the amount of
state funds which must be appropriated to bring the salaries of such employees
up to the state minimum pay scales which would be established in Senate Bill
No. 121.
5. The West Virginia Department of Education was then requested to amend
the fiscal note to provide the fiscal impact of establishing the state minimum
pay scales for nonteaching public school employees, using as a base all local
funds already paid to such personnel, including county salary supplements
funded through local excess levies. The affiant assisted in the preparation of
the amended fiscal note, as requested.
6. The amended fiscal note describing a lesser fiscal impact upon the State of
West Virginia and county boards of education was used by the 1975 Legislature
in appropriating revenues in support of Engrossed Senate Bill No. 121,
effective 1 July 1975, and a similar formula was used in subsequent sessions of
the Legislature of
the State of West Virginia until entry of the decision of the West Virginia
Supreme Court in Thomas vs. Board of Education, et al., 164
W.Va. 84 (1979), on December 11, 1979.”
W.Va.] REPORTS
STATE COURT OF CLAIMS 173
The West Virginia Supreme Court in Thomas,
et al. vs. McDowell County Board of Education, 261 S.E.2d 66 (1979) was either unaware of this
specific legislative intent or chose to give it no weight.2
The Legislature gave the State Board of Education no alternative but to include
the special levy funds in the minimum salary requirements. The State Board in
turn placed the same burden on the claimant, McDowell County Board of
Education.
The Court, having reviewed the stipulation and memorandum of law, is of the
opinion that the McDowell County Board of Education acted in good faith
throughout this controversy, has been diligent in attempting to seek redress,
and is the innocent victim of the Legislature’s attempt to reduce the cost of
the minimum non-teaching personnel salaries to the State s general revenue.
Under such circumstances, the Court is of the opinion that there is a clear
moral obligation on the part of the respondent to rectify this situation, and
an award in the amount of the judgements entered by the Circuit Court of
McDowell County of $2,305,816.60 is accordingly made.
Award of $2,305,816.60.
OPINION ISSUED FEBRUARY 3, 1989
PAUL T. CAMILLETTI
VS.
ATTORNEY GENERAL
(CC-89- 18)
Claimant represents self.
Janet F. Steele, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent Answer.
‘We think the overall intent of the Legislature in this regard (the use of
special levy funds) is to preserve the integrity of special or excess levy
funds. This intent may not be defeated by a contrary construction of one
provision of a statute without regard to the general purpose of the Legislature
with respect to special levies.” Thomas, et at. vs. McDowell Cly. Bd. of
Ed., 261 S.E.2d 66 (1979).
174 REPORTS STATE
COURT OF CLAIMS [W.Va.
Claimant brought this action to recover reimbursement for services rendered as
a Special Assistant Attorney General. Claimant was appointed by respondent to
assist the Prosecuting Attorney for Marshall County in the prosecution of
inmates for the prison uprising which occurred during the period of January 1
through January 3, 1986. Claimant alleges a balance due and owing in the amount
of $5,600.50. The invoice of these services was not processed for payment in
the proper fiscal year.
Respondent filed an Answer stating that this claim is valid and that the amount
is fair and reasonable for the services rendered. Respondent also stated that
there were sufficient funds available within the proper fiscal year with which
the claim could have been paid.
In view of the foregoing, the Court makes an award to the claimant in the
amount sought.
Award of $5,600.50.
OPINION ISSUED FEBRUARY 3, 1989
SANFORD CLEGG, III
VS.
DEPARTMENT OF CORRECTIONS
(CC-86-456)
Vincent J. King, Attorney at Law, for claimant.
Robert F. Pollitt, Senior Assistant Attorney General, for respondent
PER CURIAM:
Claimant brought this action to recover attorney fees incurred when he brought
a civil action against respondent in United States District Court for the
Southern District of West Virginia to recover back wages to which he was
entitled under provisions of the Veterans Re-employment Rights Act. His
attorney fees and expenses were in the amount of $6,289.50. This amount
represents the difference in the agreed settlement of $22,500 and the back
wages of $16,210.50 which claimant has received from respondent.
The parties submitted a stipulation of facts which set forth the following:
Claimant was employed by respondent on February 1, 1980, until September 29,
1980, when he resigned to enlist in the United States Navy.
W.Va.J REPORTS
STATE COURT OF CLAIMS 175
He was honorably discharged on December 16, 1983, whereupon he applied for
reemployment with respondent.
He was denied re-employment on the basis that he was a probationary employee
and not covered by the Veterans Re-employment Right Statute.
An opinion of the Attorney General rendered to the Civil Service Commission
indicated claimant was covered by the statute. Claimant was reinstated on
November 11, 1985.
A dispute arose as to the issue of back wages due claimant for the period
during which he was not employed by respondent.
A compromise settlement in the amount of $15,000 was reached by claimant and
respondent. However, the settlement could not be paid as the State Auditor
refused to make payment without a court order.
Respondent suggested that claimant file suit in the United States District
Court in order to obtain a court order to satisfy the State Auditor.
Claimant consulted with the United States Attorney’s Office as he was entitled
to representation by that office under the provisions of the Veterans
Re-employment Rights Statute. He was advised that there was a backlog and it
would be some time before his claim could be filed. He was further advised of
his right to independent counsel. He then employed counsel to bring the action
in United States District Court for Southern West Virginia.
On November 10, 1986, a petition was filed in the United States District Court
for the Southern District of West Virginia seeking $29,000.
Respondent filed an Answer asserting defenses and demands. Thereafter, the
parties negotiated a settlement as heretofore indicated and provided that
claimant seek attorney fees before the Court of Claims.
The parties submitted the claim to this Court upon the stipulations and briefs.
The issue before the Court is the award of attorney fees. Respondent contends
that claimant is not entitled to attorney fees as he could have had the United
States Attorney represent him without cost. Respondent also contends claimant
filed the action in the United States District Court for more than $15,000, the
original agreed upon amount, and, therefore, claimant breached the agreement.
Claimant asserts respondent filed an Answer defending the action in United States
District Court denying any amount was due claimant. Claimant also contends
entitlement to attorney fees
176 REPORTS STATE
COURT OF CLAIMS [W.Va.
as respondent filed a defense to claimant’s action in United States District
Court which should have been and, eventually, was settled in September 1987.
It appears to the Court that neither party has “clean hands.” Claimant filed
the action in the United States District Court in excess of the amount agreed
to by the parties originally. However, the respondent then denied the action in
its entirety in its answer. Both parties “muddied the waters” in the United
States District Court action. However, the Court is of the opinion that
claimant is entitled to reasonable attorney fees. Claimant knew that he was
entitled to back wages as did the respondent. He should not have had to wait
until such time as his statutory attorney was able to bring the action
necessary to obtain the back wages. He was advised of his right to independent
counsel and he chose to proceed with independent counsel. The Court is of the
opinion that this claim is one which certainly, in equity and good conscience,
should be paid. Therefore, the Court has determined that claimant may recover
his reasonable attorney fees and expenses incurred in bringing the action to
recover back wages to which he was entitled. The Court calculates the
reasonable attorney fees as $3,712.50. The expenses incurred by claimant in
bringing the case in federal Court were $1,248.70. Therefore, the Court is of
the opinion to, and does, does award claimant the amount of $4,961.20 for
reasonable attorney fees and expenses.
Award of $4,691.20.
OPINION ISSUED FEBRUARY 3, 1989
WILLIAM RAY FITZWATER
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-263)
J. Michael Anderson, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
HANLON, JUDGE:
On August 29, 1984, claimant was operating an automobile, titled in his
father’s name, on
State Route 92 at Callison Curve, Greenbrier County. He was travelling in the
northbound lane.
His vehicle apparently struck gravel, whereupon he lost control, and the
vehicle crossed the
southbound lane and proceeded over a hill and dropped approximately 50 feet
into a field.
Claimant seeks $55,000.00 for damage to the vehicle, lost wages, and pain and
suffering.
Claimant alleges that the site of the accident was not identified by signs or
other warning devises, that there was no guardrail, and that respondent’s
failure to maintain the same constitutes
W.Va.1 REPORTS
STATE COURT OF CLAIMS 177
negligence. Respondent contends that the proximate cause of the accident was
claimant’s negligence and that the erection of guardrails is discretionary
rather than mandatory.
Claimant testified that it was foggy and dark when he left his home in
Lewisburg, at about 4:45 am., to travel to Vepco in Bath County, Virginia. He
was an employee of Allis-Chalmers. He admitted that he was familiar with this
route as he had been travelling it to work for four and one-half months. He
estimated his speed to be 25 to 30 miles per hour at the time of the accident.
Although the vehicle was titled in his father’s name, claimant had possession
of the vehicle and drove it daily. At the time of this incident, he was unaware
of any defects in the automobile. He was 20 to 21 miles from his home when the
accident occurred. He was in the right-hand, northbound travel lane when he
heard the gravel. He remembers only the sound of the gravel, and no other
specific details of the accident. He stated, “... since it was light fog, I could probably see a couple of car lengths or
so ahead of me.”
Ira Young, who lives about twelve miles up Route 92 beyond Alvon, in Greenbrier
County, testified regarding the accident site. He stated that he formerly drove
a school bus for 28 years. He experienced sliding at the curve, and, in fact,
testified, “Well, when you’re going north and go around the curve, it elevates
to just throw you over the hill. I’ve been going south on that curve on that
side and there’s been wrecks there and you have to stop and like ice on the
road, your school bus will just slip right over just setting still. I’ve done
that lots of times.” He indicated that he had contacted respondent concerning
the lack of guardrails in that particular curve.
Claude Blake, an investigator for respondent, testified that he had no personal
knowledge as to which signs were present at the site of the accident in August,
1984. He agreed that the guardrails currently in placed were not present at the
time of the accident, and he confirmed that it is a 50-foot drop from the road
to the field where the claimant and the automobile came to rest.
Two certified engineers with respondent agency testified that notice had been
given to respondent. Charles Raymond Lewis, III, Planning and Research Engineer
for respondent, stated that the respondent was aware that there had been
accidents prior to August 1984 at Callison Curve which involved vehicles going
over the embankment. The respondent was also aware that petitions had been filed
and letters of complaint had been written to the respondent concerning the
Callison Curve. Robert C. Ware, an engineer for respondent in District 9,
stated that the respondent’s office in Lewisburg was aware, prior to August,
1984, that complaints were made concerning the safety of Callison Curve.
The Court finds that the particular facts of this claim establish negligence on
the part of the respondent. Respondent failed to eliminate an unusual hazard
which had existed over a period of years. This hazard caused injury and damages
to persons and vehicles lawfully using the highway. This failure constitutes a
moral obligation upon which this claim should be allowed. Spradling vs. State Road Comm ‘n., 5 Ct. Cl. 77 (1949). However, claimant, by his own
testimony, was travelling at a rate of 25 to 30 miles per hour. In the opinion
of the Court, this speed was too fast
178 REPORTS STATE
COURT OF CLAIMS [W.Va.
for the conditions then and there existing. Therefore, the Court finds that
claimant was comparatively negligent. The Court will reduce the award to
claimant by ten per cent to reflect this negligence.
Dorinda Fitzwater, claimant’s wife, testified concerning claimant’s injuries.
He spent 19 days in the hospital. He missed four and one-half months of work.
For the first two months, he remained completely bedfast, and was unable to do
anything without assistance. He was able to walk with a walker when he became
ambulatory. He then progressed from the walker to the use of a cane. His
injuries included, among others, a pelvis broken in several places, a collapsed
lung, an injured rib, and a ruptured bladder. He required a large number of
stitches. Therapy treatment assisted him in learning to walk again.
Claimant testified that he was trained as an electrician, but he is no longer
able to pursue that livelihood as he cannot carry the necessary tools. He is
currently employed as a foreman on projects, but he pointed out that if a
foreman’s position is not available, it is his opinion that he would be unable
to perform as an electrician. He is presently employed as a construction
foreman. Claimant also testified that his recreational activities at present
are limited. He is unable to romp and play with his two sons, nor is he able to
hunt or pursue other sports.
Claimant’s evidence as to damages indicated medical expenses in the amount of
$22,476.58 of which claimant is making a claim for $1,100.00. Claimant
testified that his work loss was in the amount of $14,500.00. The Court
is of the opinion that claimant’s damages are in the amount of $35,600.00 which
will be reduced by ten per cent for comparative negligence. The Court,
therefore, makes an award to claimant in the amount of $32,040.00.
Award of $32,040.00.
OPINION ISSUED FEBRUARY 3, 1989
TIMOTHY PAUL HIVELY
VS.
DEPARTMENT OF CORRECTIONS
(CC-88-48)
No appearance by claimant.
Timothy Murphy, Special Assistant Attorney General, and Janet F. Steele,
Assistant
General, for respondent.
PER CURIAM:
W.Va.] REPORTS
STATE COURT OF CLAIMS 179
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent Answer. The Court observed that Lieutenant Colonel
Eisenhower and A.V. Dodrill, Commissioner of the Department of Corrections,
were included in the style. Counsel for the respondent mad a motion to amend
the style of the claim to dismiss the individual respondents, leaving the
Department of Corrections as the proper party respondent. The Court sustained
this motion.
Claimant seeks $142.00 for a pair of prescription glasses purchased for him by
his mother.
The glasses were either lost, stolen, or destroyed when claimant was
transported from the West
Virginia State Penitentiary in Moundsville to the Ohio County correctional
facility on December
11, 1986.
The respondent admits the validity and amount of the claim and states that
there were sufficient funds expired in the appropriate fiscal year with which
the claim could have been paid.
In view of the foregoing, the Court makes an award in the amount sought.
Award of $142.00.
OPINION ISSUED FEBRUARY 3, 1989
MICHAEL P. KING
VS.
STATE BOARD OF REHABILITATION
(CC-88- 197)
Paul R. Goode, Jr., Attorney at Law, for claimant.
Janet F. Steele, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent’s Answer.
Claimant seeks $2,616.50 for reimbursement of tuition for several semesters of
study at
West Virginia University. Claimant was denied rehabilitation services by
respondent in July,
1986. Claimant was diagnosed as having 20/300 vision in the left eye due to
amblyopia on June
20, 1986. The Rehabilitation Services Section of the Division of Vocational
Rehabilitation, now
known as the Division of Rehabilitation Services, a facility of the respondent,
determined that
claimant was ineligible for services. It was its opinion that claimant had no
functional limitations
180 REPORTS STATE
COURT OF CLAIMS [W.Va.
as a result of his disability. Claimant filed for an Administrative Review of
the ineligibility decision. The initial decision was found to be in error and
it was determined that claimant was, in fact, eligible for rehabilitation
services under State and Federal Regulations on March 11, 1988. The respondent
admits the validity and amount of this claim and states that there were
sufficient funds expired in the appropriate fiscal year upon which the claim
could have been paid.
In view of the foregoing, the Court makes an award in the amount sought.
Award of $2,616.50.
OPINION ISSUED FEBRUARY 3, 1989
THE LANE CONSTRUCTION CORPORATION
VS.
DEPARTMENT OF HIGHWAYS
(CC-83- 172)
James R. Snyder and Thad Huffman, Attorney at Law, for claimant.
Robert F. Bible, Attorney at Law, for respondent.
WALLACE, JUDGE:
This claim arises out of a construction project in Kanawha County designated as
Project No. I-IG-77-2(39)89, (320-77-82.20 C-I), dated June 1, 1978. The
parties to the contract are The Lane Construction Corporation, hereinafter
referred to as Lane, and the Department of Highways. The contract completion
date was October 31, 1980. The project consisted of the construction of
approximately 4,730 linear feet of a four-lane, concrete paved, divided highway
(West Virginia Turnpike 1-77), 4,300 linear feet of relocated U.S. Route 119,
eight bridges, four interchange ramps, and various other incidental items. Lane
contends that various delays were incurred as a result of plan errors, changed
site conditions, and respondent s failure to timely approve rock borrow sources
as well as extra work necessitated by various design changes. Lane also
included three additional claims for particular costs which it incurred in the
construction of this project. The actual completion date for the project was in
October 1981.
Lane alleges the following items of damages:
(1) Increased unclassified excavation $1,735,482.00
(2) Increased rock borrow excavation $154,413.00
(3) Increased Portland cement costs $26,269.00
(4) Increased concrete production costs $18,964.00
W.Va.j REPORTS
STATE COURT OF CLAIMS 181
(5) Increased structures costs $148,396.00
(6) Increased traffic maintenance costs $65,853 00
(7) Increased indirect costs $187,922.00
(8) Increased project layout costs $23,868.00
(9) Increased property tax costs $17,974.00
(10) Increased home office overhead costs $73,278.00
TOTAL. OF DELAY CLAIM $2,452,419.00
The extra work portion of the claim consists of the following items:
(1) Temporary concrete median barrier $16,278.00
(2) Relocation of waterline $1,200.00
(3) Rebuilding shoulder at toll plaza $6,349.00
TOTAL OF EXTRA WORK ITEMS $23,827.00
The first phase of the contract required Lane to fill a swamp area for the
relocation of Route 119. The plans indicated that Lane would need approximately
94,989 cu yds. of select rock for this swamp area. This item was critical as
the contract required that the area be allowed to settle for 450 days before
completion of the area. Phase I also included construction of two access ramps
and a portion of the northbound lane of the interstate. The plans indicated
that the cuts in the area of relocated Route 119 would yield sufficient rock to
complete the fills and leave a surplus of rock of 17,235 cu. yds. There were
also supposed to be approximately 152,000 Cu. yds. of rock available in the
cuts adjacent to access road three. Only a portion of the rock would be needed
for the embankments for Route 61. According to the plans, Lane would need to
“borrow” 143,730 Cu. yds. of select rock during the first phase of the project.
Lane submitted requests for rock borrow in early July 1978 in anticipation of
the needed rock for Phase I construction. The request to borrow rock from Rock
Borrow Areas 1 and 2 was made July 5, 1978, and the request for Rock Borrow
Area 3 was made July 8, 1978. The respondent denied permission to borrow rock
in these areas but the actual denial was not forthcoming until mid-August 1978.
Lane alleges that its failure to offer a royalty for the rock in these areas
which were within the project limits was the reason that it was not permitted
to borrow from these areas. In early August 1978 Lane submitted requests to
borrow rock from Rock Borrow Areas 4, 5, and 6. These requests were acted upon in a timely manner by respondent
and Lane was permitted to borrow rock from Rock Borrow Area 4 when it was
approved in early September 1978. The requests for areas 5 and 6 were demed.
Borrow requests for Areas 7 and 8 were made on August 31, 1978. Area No. 7 was
approved on September 28, 1978. Rock was available almost immediately from Area
7 an Lane was able to develop the rock from Area 4 shortly thereafter.
182 REPORTS STATE
COURT OF CLAIMS [W.Va.
By this point in the project, Lane recognized that the rock indicated in the
original plans was not present on the project. It was anticipated by both
parties that this project would be a borrow job. However, Lane needed a
significantly greater amount of select embankment in the swamp area than
indicated in the plans. Lane alleges that respondent measured the swamp area
from the top of the water in the swamp rather than from the bottom of the
swamp. This area required 140,000 cu. yds. of select embankment. The plans
indicated 94,000 cu. yds. would be needed.
During this time Lane was completing excavation operations in the area that was
to have produced the major portion of rock and the rock was absent. In these
areas Lane was stockpiling unclassified material from the cuts where the plans
indicated rock would be found. For example, one cut on the plans indicated 38,000
Cu. yds. of available rock, but the cut contained no rock borrow. In another
cut, the plans indicated 150,000 Cu. yds. of rock, but contained only 150 Cu.
yds. This set of circumstances placed Lane in the position of stockpiling
unclassified material which was not contemplated by the original plans. At the
same time, Lane was in the construction phase in which select embankment
requirements were increased. As a result, Lane was thirteen weeks behind
schedule by the end of the 1978 construction season. Lane alleges the delay was
due to respondent s delay in approving and disapproving borrow site requests.
The problem of lack of select rock on the project continued into the 1979
construction season. An extension for borrow from Rock Borrow Area 9 was requested
on April 27, 1979, and approved May 17, 1979. The respondent authorized the
borrowing of 48,000 Cu. yds. of rock as it believed that sufficient rock was
still present in the other cuts to be developed within the project limits. As
the project progressed, lane actually ended up borrowing another 46,000 Cu.
yds. of rock. At each juncture of the project when rock was necessary Lanes
progress was delayed by a lack of rock. In fact, during Phase I, Lane actually
placed 140,000 cubic yards of rock. During Phase I, it was necessary for Lane
to borrow 49,952 Cu. yds. more rock than the Contract quantity of borrow
indicated for the project.
Respondent contends that it does not approve borrow sites within project right
of ways. According to respondent, Lane was well aware of the normal policies
regarding rock borrow areas and knew prior to the construction of this
interchange that borrow areas would have to be found off the project site.
Respondent also indicated its position with regard to the rejection of the borrow
areas. The reason for rejecting borrow from areas 1, 2, 5, and 6 was that these
were located within the State’s right of way of the project limits. Areas 2 and
3 were rejected as respondent was of the opinion that these areas had unstable
soil conditions. There was no explanation for the immediate answer provided to
Lane for areas 5
and 6. Furthermore, respondent asserts
that the delays in the approval, if any, were not unreasonable given their
potential impact on the design of the project. Respondent also contends that
there were a number of delays which were solely attributable to Lane.
A project which was calculated to be a borrow job, in that the respondent had
estimated that the project limits contained approximately 160,000 yards of
select sandstone borrow, and that
W.Va.] REPORTS
STATE COURT OF CLAIMS 183
the job would require approximately 48,000 yards of common borrow ended up
being a waste job. Robert J. Richards, formerly with Lane as a district
manager, stated that “...
the job ended up not being a borrow job,
but a waste job Timothy M. Rush, District Manager with Lane, confirmed Mr.
Richards opinion that what was termed a borrow job turned into a waste job.
The contractor’s progress reports for the months of July, August, and September
1978 reflected the fact that work was delayed due to a lack of availability of
rock borrow. The total deficit of rock on the project was approximately 140,000
cu. yds.
In terms of a borrow job, the speed with which the contractor is able to obtain
the borrow, and the amount of borrow which can be obtained, are of obvious
importance. The ratio of select rock to common material was likewise important
in order to expedite the project’s construction and to meet the contract
requirements. The amount of common material in the cuts was considerably more
than that specified on the contract drawings. Should the amount of select
embankment required to make this embankment increase, then an amount of select
sandstone is also needed and must be obtained from some other source. This
material may be obtained from the prescribed cuts or from rock borrow. It was
impossible for the contractor to complete this job within the time period
provided unless rock was borrowed early in the construction phase. If the
material in the amount needed for the embankments could not be obtained from
the cuts, the only to obtain it was to stockpile all the unclassified
excavation until the select rock could be removed from the cuts.
Due to the large quantity of borrow listed in the plans, it appeared that there
would be a minimal stockpiling of material necessary during the construction of
the project. Lane planned to gradually work the earth work back on top of the
rock fills as the fills were constructed. Instead of a cut-stockpile-fill operation,
Lane was in a position of stockpiling much more unclassified material.
Stockpiling doubles the cost of unclassified excavation as the contractor is
loading, hauling, and placing the material twice; however, the contractor is
being paid only once.
The problem of having sufficient rock on the project continued until May 1980
when the parties agreed that Lane could borrow another 10,000 cu. yds. of rock
and respondent deleted 20,000 cu. yds. of select embankment which eliminated
the need for additional borrow. Lane was able to maintain anticipated level of
production for the duration of the project. Lane completed the project
approximately one year after the original contract completion date.
The delays occasioned by the rock borrow problems impacted and slowed the
entire project. The cost of items contemplated to be purchased within the time
frame of the contract increased. These increases are alleged to have been
incurred by Lane as increased costs for which Lane has not received adequate
compensation.
The respondent’s position is that Lane was paid for all rock borrow at a price
agreed to in a change order and that delays were occasioned by Lane’s actions
during construction.
184 REPORTS STATE
COURT OF CLAIMS [W.Va.
Respondent takes the position that the borrow areas were approved in a timely
manner considering the impact the areas had on the project as a whole.
Lane contends that it is entitled to an equitable adjustment of the contract in
accordance with Section 104.2 of the Standard Specifications.3 Lane also
contends that respondent breached its duty not to delay or hinder Lane s
performance of the contract. The respondent allegedly hindered Lane by refusing
to approve early borrow requests and by failing to timely reject or accept
requested borrow areas.
A complete discussion of changed conditions on a project may be found in the
claim of A.J. Baltes, Inc. vs. Dept. of
Highways, 13 Ct.Cl. 1 (1979). The
circumstances herein constitute a changed condition. The plans indicated that
the contractor would have sufficient rock within the project limits to complete
the major portion of select embankments. This contractor was faced with site
conditions which not only delayed construction of the project, but created
extra costs which could not have been contemplated at the time the contract was
bid. Therefore, the Court finds that the changed condition on the project
caused Lane to incur costs for which it should be compensated.
The Court, having examined the record in this claim, is of the opinion that
Lane is entitled to an award for the delays which resulted from the lack of
rock borrow on the project. Lane established that payment for the rock borrow
at the contract bid price did not fully compensate Lane for the problem with
the common material which had to be moved within the project limits. In
attempting to satisfy the respondent as to the availability of rock within the
project cuts, Lane expended time and effort in removing common material from
the cuts. The rock was not there. In addition, Lane stockpiled wet, unsuitable
embankment for later use on the project. However, the project ended up as a
waste job. Lane had bid the job as a borrow job and the circumstances which
occurred doubled the cost of unclassified excavation.
The Court agrees with the respondent that Lane has been paid for the rock
borrow at the contract bid price. Lane could have negotiated for an increase at
the time of the change order entered into by the parties. Therefore, the Court
is of opinion to deny the claim for increased rock borrow excavation costs.
‘Should the Contractor
encounter or the Department discover during the progress of the work subsurface
or latent physical conditions at the site of an unusual nature, differing
materially from those ordinarily encountered and generally recognized as
inherent in work of the character provided for in the contract, the Engineer
shall be notified in writing of such conditions; and if the Engineer finds the
conditions do materially differ and cause an increase or decrease in the cost
of, or the time required for performance of the contract, an equitable
adjustment will be made and the contract modified in writing accordingly.”
W.Va.1 REPORTS
STATE COURT OF CLAIMS 185
The bid item for unclassified
excavation was $5.50 per cu. yd., whereas Lane claims that the actual cost
was $7.13 per Cu. yd. when the handling of the material is considered.
The Court is of the opinion that Lane did in fact incur costs which were
attributable to the extra handling of the unclassified excavation. It is the
opinion of the Court that respondents failure to timely approve borrow areas in
light of this item’s critical import on the progress of the construction did,
in fact, delay Lane. While the time period for the delay is difficult to ascertain,
it is clear that Lane is entitled to an award. However, the costs for indirect
items, property taxes, and home office overhead are demed as being too
speculative in nature.
A review of the three additional claims which are a part of this claim follows.
The first claim involves extra cost for concrete median barriers which resulted
from a change in the plans which required an additional amount of barrier at a
later date and the price had increased during the interim. The difference in
price of the barrier and overhead costs was $16,228.00. The Court is of the
opinion that Lane is entitled to recover $16,228.00.
The second additional claim consists of the cost for a water line which Lane
was required to lay twice due to an error in the plans. The claim represents
the difference in the contract bid price and the actual cost of the water line
at the time of the second installation in the amount of $1,200.00. The claimant
is entitled to recover $1,200.00 for this item.
The third claim in the amount of $6,349.00 represents the cost to Lane for
rebuilding a shoulder area at a toll plaza which was constructed by another
contractor. The respondent contends that Lane did not coordinate the
construction of this area with the second contractor as required by the contract,
specifically Section 105.7 of the Standard Specifications. The Court agrees with
this contention of the respondent and denies this claim.
The Court makes an award in the amount of $517,478.00, which includes the
$16,228.00 and $1,200.00 discussed herein.
Award of $517,478.00.
OPINION iSSUED FEBRUARY 3, 1989
OTIS ELEVATOR COMPANY
VS.
DEPARTMENT OF HEALTH
186 REPORTS STATE
COURT OF CLAIMS [W.Va.
(CC-89-7)
No appearance by claimant.
Janet F. Steele, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondents Answer.
Claimant seeks $971.84 for elevator repairs performed for Weston State
Hospital, a facility of the respondent. The respondent admits the validity and
amount of the claim and states that there were sufficient funds in respondents
budget for the appropriate year with which the claim could have been paid;
however, the respondent was unable to make payment as the State Auditor returned
the transmittal to the respondent with the explanation that the Treasury of the
State of West Virginia lacked sufficient funds to process the transmittal.
The Court has reviewed the petition and Answer and finds that the State agency
had sufficient funds within its appropriated budget to pay the claim, and, for
this reason, the claimant is entitled to an award from the respondent.
In view of the foregoing, the Court makes an award in the amount of $971.84.
Award of $971.84.
OPINION ISSUED FEBRUARY 3, 1989
H. JOHN ROGERS
VS.
STATE TREASURER
(CC-88-297)
No appearance by claimant.
Janet F. Steele, Assistant Attorney general, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent’s Answer.
W.Va.] REPORTS
STATE COURT OF CLAIMS 187
Claimant filed this claim in the amount of $3,671.25 for legal services
rendered to respondent. The Answer filed by respondent admits the claim in the
amount of $2,937.00 based upon approval by the Office of the Attorney General
for respondent to employ claimant at the rate of $60.00 per hour. Claimant’s
invoice indicates that he performed legal services for 48 hours. The original
invoice for the legal services was not processed for payment before the close
of the proper fiscal year; therefore, the claimant has not been paid. The
respondent admits the validity of the claim and that there were sufficient
funds expired in the appropriate fiscal year with which the claim could have
been paid.
In view of the foregoing, the Court makes an award in the amount of $2,937.00.
Award of $2,937.00.
OPINION ISSUED FEBRUARY 3, 1989
LUCY SNYDER
VS.
DEPARTMENT OF EDUCATION
(CC-88-324)
No appearance by claimant.
Janet F. Steele, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent’s Answer.
Claimant seeks compensation of $2,032.00 which represents the difference in the
amount of salary she actually received and the amount of salary she should have
received based upon her four years of experience in previous employment with
the Department of Health. Her experience was not reflected in her salary as an
employee at Cohn Anderson Center. Claimant filed a Level II grievance in
accordance with the State Employees Grievance procedures. She was granted an
increase in salary. However, respondent was unable to make payment to claimant
for services rendered prior to the decision which granted the increase
retroactive to the beginning of her employment with respondent.
The respondent admits the validity and amount of the claim and states that
there were sufficient funds expired in the appropriate fiscal year upon which
the claim could have been paid.
188 REPORTS STATE
COURT OF CLAIMS [W.Va.
In view of the foregoing, the Court makes an award in the amount sought. Award
of $2,032.00.
OPINION ISSUED FEBRUARY 3, 1989
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
AS SUBROGEE OF PAMELA REID AND HOWARD REID
VS.
DEPARTMENT OF HIGHWAYS
(CC-88- 120)
R. Gregory McDermott, Attorney at Law, for claimant.
Nancy 3. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On April 3, 1986, claimant Howard Reid was operating his 1979 Pontiac Sunbird
on Cherry Hill Road, Ohio County, when the vehicle struck a pothole. Claimants
seek $389.22 for the damage to the vehicle which resulted from this incident.
Claimant Pamela L. Reid testified that she was a passenger in the 1979 Pontiac
Sunbird owned by her husband, Howard Reid, and herself. They were proceeding to
Warwood from Short Creek. Her husband was operating their vehicle. This
incident occurred at between 5:00 and 6:00 in the morning and there was
daylight present at the time. She described the road as being a very steep
hill. He was proceeding up a steep incline in a curve when the vehicle struck a
large hole in the road. She stated that her husband was unable to avoid the
hole due to an oncoming vehicle. The road had a large number of holes in it of
which the claimants were aware. When the vehicle struck the hole, it came to a
stop in the hole. It was necessary for the vehicle to be removed from the hole
by a tow truck. The hole was estimated to be two feet wide and eight inches
deep. The hole was located on the right side of the right lane and extended two
feet into the travel portion of the roadway.
Prior to the accident, claimant Howard Reid travelled this route frequently.
Claimant Pamela L. Reid stated that she thought that they had observed this
hole in the past. The road had several holes. She testified that this
particular hole had been previously patched by respondent, but she could not
recall the date; the patching had been performed prior to April 3, 1986, the
date of this incident. She also stated that neither she nor her husband had
made complaints to respondent concerning the existence of this hole in the
road.
W.Va.j REPORTS
STATE COURT OF CLAIMS 189
This Court has repeatedly held that respondent is neither an insurer nor a
guarantor of the safety of travellers on its highways. However, the respondent
does have a duty of using reasonable care in the maintenance of its highways.
In the case of a heavily travelled major highway in this State, the Court has
held respondent liable for failure to repair a hole of this size, as it could
not have developed overnight. See: Lohan
vs. Dept. of Highways, 11 Ct.Cl. 39
(1975); Baker vs. Dept. of Highways, 11 Ct.Cl. 48(1975);
Stone vs. Dept. of Highways, 12 Ct.Cl.
259 (1979); Bailey vs. Dept. of
Highways, 13 Ct.Cl. 144 (1980); Snodgrass vs. Dept. of Highways, 13 Ct.Cl. 144 (1980); and Poole vs. Dept of Highways, 15 Ct.Cl. 65 (1983). The record established that the claimant was
familiar with the road and its condition, and therefore was also negligent. For
that reason, the Court reduces recovery by ten per cent and makes an award in
the amount of $350.30.
Award of $350.30.
OPINION ISSUED FEBRUARY 3, 1989
JEANETTE E. STRAW
VS.
DEPARTMENT OF HIGHWAYS
(CC-88- 145)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
This claim was originally filed in the name of Peter E. and Jeanette E. Straw.
However, when the record revealed that the automobile was titled solely in the
name of Jeanette E. Straw, the Court, upon its own motion, amended the style to
reflect that fact. On April 4, 1988, Peter E. Straw was operating his wife’s
1987 Chevrolet Spectrum when the automobile struck a hole in the road. Two
tires were damaged on the right side of the automobile, and claimant seeks
$388.66 for the repair of the tires.
Peter E. Straw testified that he was enroute to Chambersburg, Pennsylvania. He
was travelling eastbound on Interstate 70. He was coming from St. Louis,
Missouri. He was accompanied in the automobile by his wife and his sister and
her two children. He was in Ohio County when this incident occurred. He was
travelling at a speed of between 60 and 65 miles per hours. and he was in the
right lane of eastbound traffic. It was 9:00 p.m. and dark. He estimated the
hole to be sixteen inches wide and three feet deep. He stated that he did not
see the hole before he struck it, because he was “... coming up a hill on the bridge and the hole was on top of
190 REPORTS STATE
COURT OF CLAIMS [W.Va.
the bridge.” He explained that there were several other vehicles parked on the
side of the highway with a similar problem. He said, “There were at least about
seven or eight.” When he returned to the scene after being driven to an Amoco
station, the wrecker service was going down the line and repairing the other
vehicles.
While the respondent is not an insurer of the safety of motorists on its
highways, it does owe a duty of exercising reasonable care in the maintenance
of the highways. Interstate 70 is a heavily travelled, major thoroughfare. This
Court has previously held that a heavily travelled road deserves greater
attention than some lesser roadways. Lohan vs. Department of Highways, 11
Ct.Cl. 39 (1975), Pratt vs. Department of Highways, (Opinion issued
October 12, 1988). A pothole of the size described by claimant could not have
developed quickly, and the respondent should have discovered its existence. The
Court makes an award in the amount of $388.66.
Award of $388.66.
OPINION ISSUED FEBRUARY 3, 1989
VIRGIE MAE VARNEY AND
WILLIAM ERNEST VARNEY
VS.
DEPARTMENT OF HIGHWAYS
(CC-82- 195)
Francis M. Curnutte, III, Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
GRACEY, JUDGE:
Claimant Virgie Maw Varney asked for an award in the amount of $150,000.00. Her
husband, claimant William Ernest Varney, asked for an award in the amount of
$25,000.00. Their claims arise from an automobile accident which occurred at
about 8:00 p.m., on September 14, 1981, on Route 52, near Nolan, in Mingo
County. The claimants’ vehicle, a 1980 Chevrolet Malibu, then being driven by
Mrs. Varney, ran into standing water and debris in the southbound lane of the
highway, hydroplaned into the northbound lane as she lost control, and collided
headon with a northbound truck.
She had left their home, at Pinson Fork, Kentucky, at about 6:30 a.m. that day,
to keep a 9:30 a.m. doctor’s appointment in Huntington. She was accompanied by
her two little daughters and at Crum, she picked up her mother. Her physician
removed several moles from her nose and back, using only local anesthesia.
After lunch and shopping, they returned to Crum where several
W.Va.j REPORTS
STATE COURT OF CLAIMS 191
hours were spent visiting and having supper. She left there, to drive home, at
about 7:00 p.m., again accompanied by her two little daughters and Sister.
In her testimony, she recounted that it was dark and raining; that the road was
wet, and that she was going about 35 to 40 miles per hour when she drove
into the standing water; that she had not seen it, even though her vehicle’s
headlights were on and the windshield wipers were working, before running into
it. She said she had driven over this section of highway on numerous previous
occasions, but never when it was raining. As a result of the collision, she
suffered some facial injuries and injuries to both knees, the most serious
injury being a fractured patella of her right knee, ultimately requiring
arthroscopic surgery on June 29, 1983. She described the wearing of a brace for
some weeks after the accident, the long course of medical treatment, the
attendant pain and suffering, and her continued inability to do many things she
had been able to do before the accident. Her medical expenses were in the total
amount of $2,909.00, all paid by insurance. Additional surgery is anticipated
for the removal of bone splinters. She made no claim for lost earnings, for she
was unemployed.
Mr. Varney also testified with reference to his wife’s inability to do things
she had previously done, her medical treatment and convalescence. He estimated
that he had lost earnings of $100.00 per shift for about ten shifts as a coal
miner, losing work at times he had to take his wife for medical care.
Witnesses for the claimant included two Mingo County Deputy Sheriffs and a
lifelong resident of the area where the accident occurred. Generally, they
described the low-lying area of the highway, a long history of the blockage of
a drain and accumulation of water and debris there during long or heavy periods
of rainfall, other previous accidents caused by water standing on the highway,
and of numerous telephone complaints to the respondent Department of Highways.
Although the respondent would send a crew to open the drain upon such
complaints, nothing appears to have been done to permanently alleviate the
problem nor to warn the motorists.
The State is neither an insurer nor a guarantor of the safety of travellers on
its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947). In
order to charge respondent with negligence, actual or constructive notice of
the highway defect is required. The Court is of the opinion that the claimants
have established, by a preponderance of the evidence, that respondent was aware
of the recurring hazardous condition; that respondent’s failure to take
appropriate action to eliminate the problem or to warn motorists constituted a
failure to maintain the highway in a reasonably safe condition; that this
negligence was the proximate cause of the subject accident. The Court finds no
negligence on the part of Mrs. Varney in her operation of the vehicle.
Accordingly, the Court grants an award in the amount of $15,000.00 to Virgie
Mae Varney and grants an award in the amount of $5,000.00 to William Ernest
Varney.
Award of $15,000.00 to Virgie Mae Varney.
192 REPORTS STATE
COURT OF CLAIMS [W.Va.
Award of $5,000.00
to William Ernest Varney.
OPINION ISSUED FEBRUARY 14, 1989
DEMOTTO PEERLESS COAL COMPANY, INC.
VS.
COAL-WORKERS PNEUMOCONIOSIS FUND
(CC-88-73)
AND
LEADER COAL COMPANY, INC.
VS.
COAL-WORKERS’ PNEUMOCONIOSIS FUND
(CC-88-74)
Michael E. looper, Attorney at Law, for claimants.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.
PER CURIAM:
These claims were consolidated for submission to the Court. The claims were
brought by claimants to recover attorney’s fees expended in the defense of a
civil action brought by trustees for the United Mine Workers’ of America 1950
Benefit Plan and Trust (hereinafter referred to as the U.M.W.A.) against
claimants, in the United States District Court for the Northern District of
West Virginia, for reimbursement of medical expense payments it made for
treatment of union members for pneumoconiosis-related illnesses. The U.MW.A.
contended that medical services rendered to miners and paid for by the U.M.W.A.
were attributable to Black Lung disease. The miners were entitled to have their
employers pay for the medical services rather than the U.M.W.A.. However, the
U.M.W.A. demanded reimbursement for these bills against hundreds of coal
companies and their insurers.
The claimants herein were two defendants named in a civil action filed on
October 31, 1986, in United States District Court by the U.M.W.A. against
forty-four coal companies. Claimants, as subscribers to the West Virginia Coal
Workers’ Pneumoconiosis Fund, filed a third party complaint against respondent
herein for indemnification of any liability as respondent is their insurer
under the Black Lung Benefits Act. Respondent answered the third party
complaint and claimed to be without sufficient knowledge to affirm or deny
whether it would be responsible to claimants for indemnification of any
liability resulting from the federal court case.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 193
On May 22, 1987, correspondence from claimants made a demand for respondent to
issue an assurance that the respondent would pay any liability incurred by
claimants in the pending federal litigation. Claimants also demanded that
respondent indemnify and hold claimants harmless for any and all liability,
and, that as a result of its failure to acknowledge this duty, respondent was
also responsible for all reasonable attorneys fees.
On November 19, 1987, respondent assured claimants by letter than respondent
would indemnify claimants for any medical expense benefits determined to be
owing to the U.M.W.A. from claimants in the pending federal litigation.
However, respondent also informed claimants that respondent would not assume
the legal defense of the claimants or reimburse claimants for their attorneys’
fees incurred in defending the pending litigation.
Respondent entered into negotiations with the U.M.W.A. to settle the federal
action on
behalf of claimants and the other coal companies named as party defendants. On
December 12,
1987, a settlement was reached by the parties. Thereupon, the federal
litigation against claimants
was dismissed with prejudice on January 20, 1988.
Claimants allege that respondent is liable for their attorneys’ fees under the
doctrine of equitable subrogation and for the reason that respondent breached
its duty of good faith and fair dealing and has likewise acted contrary to law
and in bad faith.
The respondent contends that the demands in the federal litigation against
claimants were not supported by sufficient documentation to assure that their
payments met the requirements for reimbursement as Black Lung medical expenses.
These claims should be denied as there is no provision of law which allows the
payment of attorneys’ fees by respondent; there was no contract between the
parties which requires such a payment; and respondent did not willfully fail to
obey the law.
The Court is of the opinion that claimants are not entitled to recover attorney
fees in these particular claims. There is no statutory authority for the payment
of attorney fees by respondent to claimants. The traditional rule in this State
is that without an express statutory authority the litigants bear their
respective fees and costs. The West Virginia Supreme Court case of Nelson
vs. W. Va. Public Employees Ins. Bd., 300 S.E.2d 86 (1982) reviews the law
of West Virginia regarding attorney fees. In Nelson, the Supreme Court
ordered the payment of attorney fees by a State agency when it was determined
that the actions of the respondents therein evidenced a deliberate disregard of
mandatory provisions in the West Virginia Code. The Supreme Court held that “A
well established exception to the general rule prohibiting the award of
attorney fees in the absence of statutory authorization, allows the assessment of
fees against a losing party who has acted in bad faith, vexatiously, wantonly
or for oppressive reasons.” The reasoning in the Nelson case does not
apply to the claims before this Court. The respondent was negotiating with the
U. M .W.A. for settlement of the pending federal case. Substantial dollars were
in question. The respondent may have been remiss in failing to answer
correspondence in a timely manner to assure claimants of its intentions to
represent them in the federal case; however, there were extenuating
194 REPORTS STATE
COURT OF CLAIMS [W.Va.
circumstances for respondent during the time frame, i.e., change of counsel and
change in Commissioners.
For these reasons, the Court is of the opinion to, and does, disallow these
claims.
Claims disallowed.
OPINION ISSUED FEBRUARY 14, 1989
DONNA EDDY
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-488)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURLkM:
On October 24, 1987, claimant was travelling south on Route 19 on the Osage
Bridge in Monongalia County when her vehicle struck debris on the bridge. She
seeks $56.69 for the cost of a new tire as her tire was damaged in
this incident.
Claimant testified that she was proceeding in her 1984 Buick Skyhawk at the
time of this incident. She was coming from her home in Fairview and travelling
to her place of work at West Virginia University Hospital in Morgantown. She is
a registered nurse in the intensive care unit at the hospital. This is her
regular route, but she had not driven it in a week. She stated that Route 19 is
a two-lane highway. At the time of this incident one lane was barricaded. It
was 6:40 a.m. and it was dark.
As she approached the bridge, there were two cars in front of her which had
stopped. She started around a barricade that had been hit previously. There
were pieces of debris scattered over the bridge on both sides. She attempted to
avoid these, but her right rear tire caught a piece of the debris. She
described the debris as being “... wood but it
was white and shiny After the accident, she did not go back and examine the
debris.
William F. Fieldhouse, Maintenance Supervisor for Monongalia County for
respondent, stated that he was familiar with the accident site. There was
construction work being performed by respondent in that area. The witness
thought that the work was with the bridge expansion joints at each end of the
bridge. During the day signs and flagmen were utilized. At night signs and
W.Va.1 REPORTS
STATE COURT OF CLAIMS 195
flashing lights were utilized. He called sometime after midnight on the day of
this incident and alerted to the fact that the barricades had been damaged. He
dispatched a crew to the bridge site, and, to his knowledge, it was repaired
between 2:00 and 3:00 a.m. Prior to claimant’s accident, he was unaware that
there was any difficulty with the way that the signs and barricades were set
up.
The evidence in this record indicates that the defective condition of the
barricade appeared suddenly and that the respondent promptly moved to repair
the defect as soon as it became aware of this problem. Moore vs. Dept. of
Highways, CC-85-153 (February 19, 1986). Banhart vs. Dept. of Highways, 12
Ct.Cl. 236 (1979). Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947),
holds that the State is neither an insurer nor a guarantor of the safety of the
motorists on its highways. The Court is of the opinion that negligence on the
part of the respondent has not been established, and therefore, the Court
denies this claim.
Claim disallowed.
OPINION ISSUED FEBRUARY 14, 1989
DARLENE S. FEDERER
VS.
DEPARTMENT OF HIGHWAYS
(CC-88-204)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On June 24, 1988, claimant was travelling on Route 14 in the vicinity of
Clarksburg, Harrison County. As she drove across railroad tracks which were
raised above the normal level of the road, her vehicle was damaged. She seeks
$168.40 which is the expense of the cost of repair to claimant’s vehicle.
Claimant testified that the automobile which she was operating was a 1977
Plymouth Volare which is titled in her name. She explained that she was
accompanied in the vehicle by her children. They had been swimming at Sycamore
Lake and were returning home to Clarksburg. The railroad tracks were
approximately a quarter of a mile from old Route 50. She had travelled to
Sycamore Lake by means of Route 50, but she returned by an alternate route as
it was more scenic. She had been on this route two years before the incident
and, therefore, she was not aware of the condition of the railroad crossing.
She was travelling at 30 to 35 miles per hour.
196 REPORTS STATE
COURT OF CLAIMS [W.Va.
Her automobile required alignment and welding to the muffler. She also replaced
the hubcaps and bought two retread tires to replace two tires which had been
damaged. Claimant alleges that there had been construction work going on in the
area of the accident site and the railroad track had been removed. She also
contends that respondent was negligent for failure to erect warning devices at
this area.
Ronald Cook, Harrison County Maintenance Supervisor for respondent, testified
that he is familiar with the accident site. There was a contractor hired by CSX
to remove the track, and CSX Railroad was responsible for providing signs and
maintaining the railroad track and the crossing at this location at the time of
claimant s accident. If respondent is aware of a complaint, it refers that complaint
to CSX. Respondent had not received any complaints regarding this particular
track prior to claimants accident.
This Court finds that an independent contractor of CSX was engaged in
construction work, and the respondent is not liable for negligence, if any, of
such independent contractor. Therefore, the Court is of the opinion to, and
does, disallow this claim.
Claim disallowed.
OPINION ISSUED FEBRUARY 14, 1989
RONALD K. FIELDS
VS.
DEPARTMENT OF CORRECTIONS
(CC-87-215)
Claimant appeared in person.
Timothy Murphy, Special Assistant Attorney General, for respondent.
PER CURIAM:
Claimant brought this action to recover damages for his loss of clothing. On
June 23, 1987, claimant sent his clothes to the penitentiary laundry to be
washed, and the clothing was not returned to him. He filed a grievance relating
to this matter with the warden of the penitentiary on June 24, 1987. He seeks
$128.00. This amount represents his estimate of the value of his personal
items.
Claimant testified that inmates are not charged for the cost of laundering
their clothes. He explained that the inmates set their laundry outside of their
cells in laundry bags and it is picked up by laundry personnel (inmates). The
guards return the clean laundry by placing the laundry
W.Va.] REPORTS
STATE COURT OF CLAIMS 197
bags outside of the cell doors. He
stated that “...
sometimes you’ll get it back the next day. They’ve got different days how they do it and they’ve got different
hours when they bring it back. They bring it back when they get good and
ready.”
He listed the following items as being lost: two pair of Nike shorts, one Nike
tank top, two pair of McGregor sweat pants, six pair of tube socks, one
windbreaker jacket, and one pair of shoes. The claimant presented to the Court
one accurate copy of an Inmate Property Form which listed the items and dates
that these items were received by claimant. Respondent stipulated to the list.
Claimant’s property form listed only three pairs of socks, but he claimed that
he lost six pairs. He explained that he actually did have six pairs of tube
socks. He testified that he lacked the sales receipts for his missing items of
clothing. The clothing did not have any identifying marks. He admitted that if
he had requested that the guards mark his clothing for him, they would have
done so.
James Harold Kirby, an officer at the penitentiary, testified regarding the
policy with regard to laundry at the penitentiary. When laundry is lost, there
is a form which the inmates fill out to be turned into the hall captain. The
inmate’s cell is then searched to
ascertain that the items are not in
the inmate’s cell. The personal property loss form is given to the laundry
officer and then delivered to Officer Kirby. He then attempts to locate the
lost property items for the inmate. He indicated that he has no way of knowing whether the
property listed as lost by the inmate was sent to the laundry. Claimant herein
did not complete the property loss form at the time that he allegedly lost his
personal property. The penitentiary was unable to attempt a reconciliation with
the claimant as the property form was not completed in a timely manner.
The Court is of the opinion that the State is not an insurer of clothing or other
articles which inmates choose to bring into any State facility. Therefore, the
Court is of the opinion to and does disallow this claim.
Claim disallowed.
OPINION ISSUED FEBRUARY 14, 1989
RICHARD M. GREENE
VS.
DEPARTMENT OF CORRECTIONS
(CC-88-131)
Claimant appeared in person.
198 REPORTS STATE
COURT OF CLAIMS [W.Va.
Robert D. Pollitt, Deputy Attorney General, for respondent.
PER CURIAM:
Claimant is currently incarcerated in Pruntytown Correctional Center and was
formerly incarcerated in the West Virginia Penitentiary. He contends that he
earned both overtime pay and extra earned good time while serving his sentence.
He has not received compensation for the overtime pay, and so brings this claim
for $550.00.
Respondent alleges that claimant is in error. The applicable Policy Directive
mandates that prisoners shall be paid or shall be granted overtime or good time
credit; that the claimant was granted good time credit and this credit was
applicable against his sentence.
Claimant testified that he performed overtime work during his incarceration. He
was sent to the West Virginia Penitentiary on June 19, 1980. His sentence is
life with mercy. He has three years, eight months, and twenty-nine days of
overtime. He submitted a letter to the Court which allegedly granted him good
time as the result of an appeal before a special hearing officer.
John F. Massie, Records Clerk at the West Virginia State Penitentiary,
testified with regard to this claim. He stated that the files he maintains
include the records for the claimant. He indicated that claimant is serving a
life sentence. He stated, ‘Inmates with life sentences really do not earn good
time He does not take overtime or good time from a life sentence. As those with
life sentences have no definite discharge date, Mr. Massie is unable to
calculate these time periods for life sentences. The three years, eight months,
and twenty-nine days are “on account” on claimants record. Should claimant have
a sentence reduction, Mr. Massie explained, he would deduct the time from his
prison term and release him that much earlier. Mr. Massie further stated that
only good time was awarded to prisoners serving definite time periods as their
sentences. He stated that there are over 200 imnates in the life category, and
none of these inmates received any direct compensation for overtime. Claimant
is not in a unique position.
It is the opinion of the Court that the issue in this case has already been
resolved by respondent as explained hereinabove. For that reason the Court is
of the opinion to, and must deny this claim.
Claim disallowed.
OPINION ISSUED FEBRUARY 14, 1989
VELMA D. LAYNE, III AND ROBBIE LAYNE
VS.
DEPARTMENT OF HIGHWAYS
W.Va.] REPORTS
STATE COURT OF CLAIMS 199
(CC-86-45)
Claimant, Velma D. Layne, III, appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
GRACEY, JUDGE:
Claimants seek $20,000.00 for damages to real property resulting from water
drainage on the property. After it was determined that the property is titled
in the names of claimant and his wife, the Court amended the style of the claim
to reflect that fact.
Claimant Velma Layne testified that his property is located on Woodville Drive,
a State- maintained road. Sometime after his house was built in the early part
of 1985, a campground was installed near claimants property. There was also a
secondary road located at the intersection of the two campground roads.
Claimant alleges that respondent constructed a bank adjacent to the road
leading to the entrance and exit of the campground. Water from all three roads
was then discharged directly onto claimants’ property. Claimants contend that
the damage to their property was caused by this action on the part of
respondent.
Respondent contends that one of the reasons for the damages to claimants’
property is the construction of the campground road by a private party.
Respondent also contends that claimants’ property is in a low-lying, natural
drainage area, The drainage from the surrounding area drains onto claimants’
property.
Claimant Velma Layne testified that very soon after he built his home in
January 1984, the campground was built. Claimants’ property fronts on Woodville
Drive. The culvert which goes underneath Woodville Drive has remained open
during the time that he and his wife have resided on the property. Claimants
experienced no problems with water until the construction of the campground and
the campground roadway. Water began to wash away gravel from claimants’
driveway, and claimants have incurred the expense of replacing the gravel. The
water has also caused the center of claimants’ garage floor to settle in the
middle. There is a depression of three inches in the concrete floor. Claimants
have had to place three extra loads of gravel at a cost of $300.00 due to the
drainage problem. Claimant Velma D. Layne, III did not provide an estimate for
the cost of repair of the garage floor. He did agree that it would be
beneficial to construct a concrete catch basin across the top of the driveway
to divert the water. He plans to construct this basin at some future date, but
he had not constructed the basin as of the date of this hearing.
Claude C. Blake, Chief Claim’s Investigator for respondent, testified regarding
his investigation of claimants’ property. He stated that he had seen the
property several times. He did not observe claimants’ property during rain.
Thomas Footo, Design Engineer for respondent, testified that he is familiar
with the Layne property. After he inspected the property, he was unable to
determine anything that could be the
200 REPORTS STATE
COURT OF CLAIMS [W.Va.
cause of the drainage problem. In his opinion, claimants’ lot was not graded to
facilitate drainage away from the house.
John Sammons, Area Maintenance Assistant for respondent in Cabell and Lincoln
counties in 1984 through 1986, discussed the Layne property. He checked the
drainage ditches and drainpipes on the State-maintained roads and found that
these were open and providing the intended drainage.
James Campbell, District Engineer for respondent, stated that he was not familiar
with claimants property, but had viewed it recently. He stated that there are
no provisions for drainage on the claimants’ house. This fact adversely affects
the drainage at the base of the house.
It is the opinion of the Court that claimants’ damage is the result of
construction of the campground road by a third party and the location of the
claimants property in a natural drainage area without provision for protection
from such drainage. The Court finds no negligence on the part of the respondent.
Accordingly, the claim must be denied.
Claim disallowed.
OPINION ISSUED FEBRUARY 14, 1989
RALPH W. MASTER, JR.
VS.
DEPARTMENT OF HIGHWAYS
(CC-88-66)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant was travelling in his 1973 pickup truck on U.S. 50, which is
also known as Main Street, in Grafton, when his vehicle struck a hole. Claimant
seeks $279.03 for the repair the automobile required as a result of this
incident.
Claimant testified that on the day in question it was about 6:30 a.m., and dark
and raining. He was travelling east at approximately 25 to 30 miles per hour.
The highway is a two-lane, black top road. He was travelling from his home to
his place of employment. The hole was located in front of the left wheel and
was almost in the center of the road. An automobile preceding claimants
automobile also pulled off with a flat tire. Claimant had a flat tire, damage
to the rim
W.Va.J REPORTS
STATE COURT OF CLAIMS 201
of the wheel, and the truck was out of alignment. Claimant stated that he had
travelled the same route on the previous morning and the hole which the truck
hit was not present at that time.
The law of West Virginia is well established that the State neither insures nor
guarantees the safety of motorists on its highways. Adldns vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1947). For the respondent to be found liable
for damages caused by road defects of this type, the claimants must prove that
the respondent had actual or constructive notice of the defect and a reasonable
amount of time to take corrective action. Davis vs. Dept. of Highways, 12
Ct.Cl. 31 (1977); Hoskins vs. Dept. of
Highways, 12 Ct.C1. 60 (1977); Hicks vs. Dept. of Highways, 13 Ct.Cl. 310 (1980). As there was no such evidence
presented, the claim must be denied.
Claim disallowed.
OPINION ISSUED FEBRUARY 14, 1989
DEBRA LYNNE MORTON AND KENNETH PAUL
MORTON
VS.
DEPARTMENT OF HIGHWAYS
(CC-88-254)
Claimant Debra Lynne Morton appeared in person.
Nancy 3. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On October 24, 1987, claimant Debra Lynne Morton was driving a 1986 Renault
Alliance on U.S. Route 220 near Keyser, Mineral County, when the automobile
struck a hole. As the automobile is titled in both claimant Debra Lynne
Morton’s name and that of her husband, the Court upon its own motion amended
the style of the claim to include the name of Kenneth Paul Morton.
Claimant testified that she had gone to pick up her mother in Keyser, West
Virginia, and was returning to her residence in McCoole, Maryland, when the
incident occurred. It was clear weather and the road is a two-lane, hard
surfaced highway. It had been a week since she travelled this route. She was
aware of the presence of the hole, but she was not certain of its exact
location. She was travelling at approximately 30 miles per hour. She stated
that the hole was located on a bridge. She determined that the hole is
approximately eight inches deep and as big “... as
a manhole The right front wheels of her vehicle ran through the hole. She
indicated that she had been reimbursed by her insurance company in the amount
of $259.22. Claimants paid the first $100.00 of the damages as their
deductible.
202 REPORTS STATE
COURT OF CLAIMS [W.Va.
The law of West Virginia is well established that the State neither insures nor
guarantees the safety of motorists on its highways. Adkins vs. Sims, 130
W.Va. 645,
46 S.E.2d 81(1947). For the respondent to
be found liable for damages caused by road defects of this type, the claimants
must prove that the respondent had actual or constructive notice of the defect
and a reasonable amount of time to take corrective action. Davis vs. Dept.
of Highways, 12 Ct.Cl. 31 (1977); Hoskins vs. Dept. of Highways, 12
CtCl. 60 (1977); Hicks vs. Dept. of Highways, 13 Ct.Cl. 310 (1980). As
there was no such evidence presented, this claim must be denied.
Claim disallowed.
OPINION ISSUED FEBRUARY 14, 1989
STANLEY D. SATI’ERFIELD
VS.
DEPARTMENT OF CORRECTIONS
(CC-86-382)
Claimant appeared in person.
Timothy Murphy, Special Assistant Attorney General, for respondent.
PER CURIAM:
In July 1986, claimant, an inmate of the West Virginia Penitentiary, a facility
of the respondent, followed the procedure set forth for having his clothing
laundered. The clothing was not returned to him and he seeks $144.00 for his
property loss.
Claimant explained that inmates serve as the laundry personnel. The clothing is
placed in bags and taken to be laundered. The guards then deliver the laundered
clothing by placing the laundry bags on the outside of the cells of the
inmates.
James Kirby, Property Officer for the Penitentiary, testified that a staff
notice dated January 17, 1985 was applicable at the time of this incident. It
provided as follow: “The West Virginia Penitentiary will not be responsible for
loss, damage or theft of any personal propety received by an inmate.” Officer
Kirby stated that once an inmate signs for laundry, thereby assuming
responsibility for it, there is no method to account for its loss. Inmates are
issued an adequate amount of clothing from the State. However, claimant’s lost
clothing was not Stateissued clothing.
W.Va.j REPORTS
STATE COURT OF CLAIMS 203
The Court is of the opinion that the State is not an insurer of the personal
clothing which inmates choose to keep in their possession in a State facility.
Therefore, the Court is of the opinion to, and does, disallow this claim.
Claim disallowed.
OPINION ISSUED FEBRUARY 27, 1989
JOHN P. BAILEY, ET AL.
VS.
BOARD OF REGENTS
(CC-88- 19)
J. Thomas Madden, Attorney at Law, for claimants.
Janet F. Steele, Assistant Attorney General, for respondent.
PER CURIAM:
These claims were submitted for decision based upon the allegations in the
Notice of Claim and the respondents Answer.
Claimants seek reimbursement for services rendered as Special Prosecuting
Attorneys. Each was appointed by the Governor to assist the Prosecuting
Attorney of Marshall County in the prosecution of inmates as a result of the
prison uprising of January 1 through January 3, 1986. Each claimant was owed a
balance for the services rendered, but the invoices were not processed for
payment in the proper fiscal year, so no payments were made.
The respondent admits the validity of the claims and states that the amount
alleged to be due each of the claimants is fair and reasonable. Respondent also
states that there were sufficient funds expired in the appropriate fiscal year
upon which the invoices could have been paid.
In view of the foregoing, the Court makes awards in the amounts indicated
below.
Award of $2,036.25 to John P. Bailey.
Award of $2,532.50 to Frederick E. Gardner.
Award of $5,615.00 to Robert W. Kagler.
Award of $7,599.50 to Michael E. Kelly.
Award of $12,390.00 to Jeffrey V. Kessler.
Award of $5,229.20 to J. Thomas Madden.
Award of $6,065.00 to Michael W. McGuane.
204 REPORTS STATE
COURT OF CLAIMS [W.Va.
OPINION ISSUED FEBRUARY 27, 1989
CASTO TECHNICAL SERVICES, INC.
VS.
BOARD OF REGENTS
(CC-88-354)
No appearance by claimant.
Janet F. Steele, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and the respondent s Amended Answer.
Claimant seeks $3,208.00 for maintenance on heating and cooling units provided
respondent during the months of March 1987 and July 1987 at West Virginia
University -
Charleston Area Medical Center Complex.
The invoice for the month of March was not processed for payment in the proper
fiscal year; therefore, the claimant has not been paid. The respondent admits
the validity and the amount of $1,604.00 for the month of March and states that
there were sufficient funds expired tin the appropriate fiscal year with which
that invoice could have been paid. Respondent denies the amount of $1,604.00
for the amount of July as a change order was issued in December 1986 which
excluded the month of July from the contract. Claimant indicated that it agrees
to accept $1,604.00 as full settlement of the claim.
In view of the foregoing, the Court makes an award in the amount of $1,604.00.
Award of $1,604.00.
OPINION ISSUED MARCH 3, 1989
WARREN E. FORTNEY AND MARY ANN FORTNEY
VS.
DEPARTMENT OF HIGHWAYS
(CC-88- 157)
Claimant Warren E. Fortney appeared in person.
W.Va.j REPORTS
STATE COURT OF CLAIMS 205
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On January 19, 1988, claimant Warren E. Fortney was travelling on State Route
21, Marshall County, in the vicinity of Mouncjsville. His 1983 Chevette struck
ice, left the road, and went over an embanlmient. The vehicle was a total loss.
Claimants seek $8,000.00 for personal injuries, work loss and loss of the
vehicle. It was brought to the attention of the Court by counsel for respondent
that the vehicle in question was titled in both the names of Warren E. Fortney
and Mary Ann Fortney. For that reason the Court amended the style of the claim
to include Mary Ann Fortney as a party claimant.
Claimant Warren E. Fortney stated that on the morning of this incident he was
travelling to work from Proctor, West Virginia. He travels this road everyday.
He had observed ice at this location previously. He estimated his speed to be
no more than twenty miles per hour. His vehicle turned around in the road and
went over an embankment on the right side. It is a two-lane road with neither
berm nor shoulder. Claimants had liability insurance only, and were not
reimbursed for the damage to the vehicle. The book value of the 1983 Chevette
was $2,250.00. Claimant Warren Fortney missed three weeks of work and incurred
hospital bills, but he did not submit the bills to the Court. The hospital
bills were covered by insurance. He stated that he did not have an out-of-pocket
loss.
Kenneth Davidson, respondent Maintenance Supervisor for District 6, which
includes Marshall County, testified regarding State Route 21. He stated that it
is a State and local service route, and therefore is one of respondent lowest
priority routes “...
as far as maintenance and funding go.’
Roads in this State, in the winter months, frequently accumulate frost. An
isolated patch of ice on a highway is generally insufficient to establish
negligence on the part of respondent. Cole
vs. Dept. of Highways, 14 Ct.Cl. 350
(1983); Welch vs. Dept of Highways, CC-88-96 (Opinion issued December 29, 1988). It is well
established that the State neither insures nor guarantees the safety of
travelers on its highways. Adkins vs.
Sims, 130 W.Va. 645, 46 S.E.2d
81(1947). For these reasons, the Court is of the opinion to, and does, disallow
this claim.
Claim disallowed.
OPINION ISSUED MARCH 3, 1989
NILA MCGRAW
VS.
DEPARTMENT OF HIGHWAYS
206 REPORTS STATE
COURT OF CLAIMS [W.Va.
(CC-88-198)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action to recover for damage to her automobile when it
struck a hole. She seeks $615.07 as compensation for the damages.
On or about June 12, 1988, claimant was travelling on the Dunbar Toll Bridge in
Kanawha County. It was approximately 9:15 am. She was on her way to
church and was alone in her vehicle, a 1982 Oldsmobile Omega, at the time of
this incident. She was proceeding from Route 60 in St. Albans to Dunbar. The
weather was clear. The surface of the bridge is blacktop, and claimants speed
was approximately 35 miles per hour. She was operating her vehicle in the
right- hand lane when her automobile encountered a hole on the bridge. She did
not see the hole until her vehicle was upon it. The vehicle struck the hole
with the left front tire. Claimant travels this route three or four times a
month. She was unaware how long this particular hole had been in existence.
She noticed some irregularity in her vehicle after the accident. Approximately
a month following the incident, she took her vehicle to have it checked. At
that time, it was estimated that the cost of repair was $615.07, which is the
amount she seeks.
Roger Lee Higginbotham, Supervisor for the North Charleston Section of Kanawha
County for respondent, testified that the bridge is a State-maintained bridge
on Route 25/47. He checked his records from May 15, 1988, to June 15, 1988,
to determine if any complaints had been reported concerning the accident site,
and whether any work had been done by the respondent in that area. He
determined that there was no record of work being done, nor was there a record
of complaints made regarding the area in question.
The law of West Virginia is well established that the State neither insures nor
guarantees the safety of motorists on its highways. Adkins vs. Sims, 130
W. Va. 645, 46 S.E.2d 81(1947). For the respondent to be found liable for
damages caused by road defects of this type, the claimant must prove that the
respondent had actual or constructive notice of the defect and a reasonable
amount of time to take corrective action. Davis vs. Dept. of Highways, 12
Ct.Cl. 31(1977); Hoskins vs. Dept. of Highways, 12 Ct.Cl. 60(1977); Hicks
vs. Dept. of Highways, 13 Ct.Cl. 310, (1980). As there was no such evidence
presented, this claim must be disallowed.
Claim disallowed.
W.Va.] REPORTS
STATE COURT OF CLAIMS 207
OPINION ISSUED MARCH 3, 1989
JAMES H. STURGEON
VS.
DEPARTMENT OF HIGHWAYS
(CC-88-296)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant, accompanied by his wife in his automobile, had turned left from
MacCorkle Avenue southwest onto Riheldaffer Avenue on June 14, 1988, at
approximately 7:00 p.m. There was a drain with a grate located to the right
side of the lane, and claimant’s vehicle went into the hole created by the
drain. The beauty rings on his 1984 Ford Tempo required replacement for which
he seeks $31.04.
Claimant testified that it was a clear day, and that visibility was
approximately one hundred yards. He stated that the grate was recessed about
six inches and that it was a the right edge of Riheldaffer Avenue. It is a
narrow street. His speed was approximately ten mile per hour. He had not seen
the drain hole before his automobile struck it. At the time the automobile
struck the hole, there were no vehicles approaching claimant’s vehicle on
Riheldaffer Avenue.
After the accident, claimant found the beauty ring from his automobile “... off to the side.” He did not know how the beauty ring
became damaged. It is possible that he or another driver ran over the ring, and
it was damaged in that manner.
The Court has consistently held that the State is neither an insurer nor a
guarantor of the safety of motorists travelling on its highways. Adkins vs. Sims, 130 W.Va. 645 (1947). Respondent has been charged with the qualified
duty of reasonable care and diligence in the maintenance of the highway under
all circumstances. Parsons vs. State
Road Comm ‘n, 8 Ct.Cl. 35 (1969). The
Court has concluded that the claimant has not established by a preponderance of
the evidence that respondent has failed in this duty of reasonable care and
diligence. It would be speculation on the part of the Court to hold that the
recessed grate was the proximate cause of the damage to claimant’s automobile.
The Court is therefore of the opinion to deny the claim.
Claim disallowed.
OPINION ISSUED MARCH 3, 1989
208
REPORTS STATE COURT OF CLAIMS [W.Va.
FREAL THOMPSON, JR.
VS.
DEPARTMENT OF HIGHWAYS
(CC-88-283)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On September 18, 1988, claimant was travelling north on U.S. Route 19 near
Princeton, Mercer County. His 1978 Ford Fairmont station wagon struck a tree
which was covering the road. The automobile was a total loss, and claimant
seeks $2,704.47.
Claimant testified that it was approximately 4:35 a.m., and he was
proceeding at a speed of thirty-five miles per hour. It was dark and foggy. The
road is a two-lane asphalt highway. His headlights were in operation on low
beam. The tree was a large White Oak tree, and the diameter of the trunk was
approximately thirty-six inches. He could see between thirty and fifty yards in
front of him. He alleges that respondents crew had performed some work in this
area bout a week before the incident. He observed a crew cutting brush, but did
not see them specifically cutting brush in the exact location of his accident.
William R. Bennett, Assistant District Engineer for Maintenance with
respondent, testified that he reviewed Foreman s Reports and learned that
respondent was notified of the presence of the tree on the highway on the
actual day of claimants accident. A crew was sent out to remove
it. He checked for complaints and found no complaints from January, 1988,
through September
26, 1988.
Proof of actual or constructive notice is required for a showing of negligence.
The evidence in this record indicates that the dangerous condition appeared
suddenly and that the respondent promptly moved to take safety precautions as
soon as it became aware of the problem. Moore vs. Dept. of Highways, (Opinion
issued February 19, 1986); Taylor vs. Dept. of Highways, (Opinion issued
February 19, 1986) and ison vs. Dept of Highways, (Opinion issued August
8, 1988). The State is neither an insurer nor a guarantor of the safety of the
motorists on its highways. The Court is of the opinion that negligence on the
part of the respondent has not been established, and, therefore, the Court
denies this claim.
Claim disallowed.
OPINION ISSUED MARCH 3, 1989
W.Va.j REPORTS
STATE COURT OF CLAIMS 209
GEORGE 0. WINEMILLER AND MARILYN R. WINEMILLER, HIS WIFE,
WILLIAM HAMILTON AND CAROLYN S. HAMILTON, HIS WIFE, AND
AETNA INSURANCE COMPANY, NATIONAL BENEFIT ADMINISTRATORS,
INC., SUBROGATEES
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-213)
Robert R. Sowa. Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
WALLACE, JUDGE:
Claimants brought this action to recover monetary damages which resulted when
claimant George 0. Winemiller was in an accident which came about when he drove
a vehicle into a large hole caused by a slide. The vehicle belonged to William
Hamilton and Carolyn S. Hamilton, the brother-in-law and sister of claimant
George 0. Winemiller.
Claimant Winemiller was travelling north on West Virginia Route 4, Braxton
County, in a 1982 Eagle station wagon on November 29, 1985, at
approximately 3:15 a.m. At that time he was involved in a single vehicle
accident which occurred when he drove the vehicle into a deteriorated section
of the roadway where a slide had occurred. The exact time of the slide has not
been established, but it was estimated to be between 2:30 and 3:30 in the
morning. Claimant Winemiller sustained injuries to his person and damages to
the vehicle for which claimants seek $500,000 as compensation.
It is claimants position that respondent was negligent in failing to take
action to rectify the hazard or to provide warning devices to alert the
travelling public of the existence of the hazard created by the slide,
Claimants also allege that construction of the Sutton dam, which was completed
in this area over twenty years ago, contributed to the slide. Claimants contend
that the way in which the dam was controlled caused the earth beneath the road
to erode due to the raising and lowering of the water in the Elk River.
Therefore, claimants contend that the respondent knew or should have Laown that
erosion would occur to the earth beneath the road which would eventually cause
a slide such as the one that did occur in the claim herein. The hole created by
the slide was approximately 20 feet long, 250 feet wide, and 30 feet deep.
In order to establish liability on the part of the respondent, there must be
either actual or constructive notice and sufficient time for respondent to take
precautionary measures. Respondent contends that its employees acted in an
expeditious manner to warn the travelling public of the hazard created by the
slide and that it did not have prior knowledge that such a slide would occur.
210 REPORTS STATE
COURT OF CLAIMS [W.Va.
Testimony from Linda Pardue, the Braxton County dispatcher on November 29, 1985,
revealed that she first received information from an employee of the Storck
Baking Company concerning the slide on Route 4 at 3:11 am. She immediately
called William Tucker, respondents’ Maintenance Supervisor for Braxton County,
also at approximately 3:11 am, or shortly thereafter.
Mr. Tucker drove to the area of the slide. He estimated that he arrived at the
slide at approximately 3:20 to 3:25 a.m. Upon his arrival, he saw a vehicle in
the hole created by the slide but could not see if anyone was in the vehicle.
There were two unidentified people at the slide. He gave them a flashlight and
directed them to block the road. He then proceeded to the Sutton Go-Mart for
help and returned to the scene. The EMS squad arrived shortly thereafter. He
testified that there had been no problems in the slide area prior to November
29, 1985, and that there are neither weight restriction signs nor falling rock
signs posted.
Jack Bowen, Assistant Chief Deputy for Braxton County, testified that he had
driven over this particular section of the road at approximately 2:30 a.m. At
that time, the slide had not yet occurred.
Joseph Denault, respondent’s Assistant District Engineer for Maintenance,
testified that he had travelled this route often, but he had never personally
observed any problems at the slide location.
Lydia Dorko, respondent’s District One Design Engineer, testified that she had
not received any complaints about the area of milepost 22.42 (the slide area)
prior to December 2, 1985, when she inspected this particular area of Route 4.
It is the opinion of the Court that claimants have failed to establish
negligence on the part of the respondent in this claim. The respondent did not
have sufficient time to reach the scene of the slide to place warning devices
prior to the time at which claimant came upon the slide. Respondent’s employee
proceeded to the slide area as soon as he was notified of the hazard and took
steps to protect the traveling public to the best of his ability. The Court
further finds that respondent could not have predicted the occurrence of this
slide. In a similar case, (Motorists Mutual Ins. Co. vs. Dept. of Highways, Opinion
issued December 3, 1988), the Court found that “there was no evidence that
respondent knew or should have known of the propensity of the road to
collapse.” In the instant claim, there was no evidence that respondent had
knowledge of the propensity of this area of the road to collapse. Although the
Court is not unmindful of the seriousness of the injuries received by claimant
George 0. Winemiller, the Court must deny this claim.
Claim disallowed.
W.Va.] REPORTS
STATE COURT OF CLAIMS 211
OPINION ISSUED MARCH 21, 1989
NANCY C. DUTY AND DONALD E. DUTY
VS.
DEPARTMENT OF HIGHWAYS
(CC-87- 169)
George E. Lantz, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
HANLON, JUDGE:
On June 23, 1985, claimant Nancy C. Duty was travelling in claimant Donald E.
Duty’s
1982 Honda Prelude, on Route 2, in Jackson County. The vehicle encountered
loose gravel.
Claimant Nancy Duty lost control of the vehicle on loose gravel present at the
accident site.
Claimant’s now seek $50,000.00 for damage to the vehicle and for personal
injuries received by
Nancy Duty.
Claimant Nancy C. Duty testified that she had driven to Huntington on Friday
evening preceding the accident to visit her daughter. She was returning to
Parkersburg on the following Sunday. She left Huntington at approximately 7:30
a.m. Her speed was approximately 50 miles per hour. The weather was clear and
dry. She regularly operates the Honda Prelude and considers it to be “her car,”
although the vehicle is titled in claimant Donald E. Duty’s name. She observed
a “Tar” sign tossed to the side of the road about a mile to a mile and one-half
before the vehicle struck the gravel. The vehicle then swerved to the right,
proceeded to the opposite side of the road, hit an embankment, and turned over.
As a result of the accident, she sustained a broken vertebrate and crushed or
compressed vertebras. She is a registered nurse and, as a result of this
accident, she lost six weeks of work without pay. Her rate of pay was $7.15 per
hour. She still experiences back discomfort.
Claimant Donald E. Duty testified that he drove from Parkersburg to the
accident site on the morning of this incident. He felt that the road was
“slippery,” but he did not attribute the status of the road to gravel until he
was informed of same. He had owned the Prelude for only three months. He paid
$6,000.00 for it. In addition, he traded in a vehicle worth $1,000.00 to
$2,000.00. The accident vehicle was beyond repair. He sold the damaged vehicle
for $500.00.
Raymond Daniel Bush, who has a residence near the accident scene, assisted Mrs.
Duty after the incident. Her vehicle came to rest across from his home. He
testified that respondent had performed work on the roadway on the Saturday
prior to this incident. He described the gravel on the road as being “pea
gravel.” “...
they put tar and I call it pea gravel from
just north of Millwood to the intersection of Mt. Alto on Saturday.” This is
about a four-mile stretch. After claimant’s accident, Mr. Bush travelled this
stretch of Route 2 on his way to church. He described the surface of Route 2 as
follows: “I would explain it if you threw a bunch of marbles on the floor
212 REPORTS STATE
COURT OF CLAIMS [W.Va.
and stepped on them, you’re going to scoot, aren’t you?” He also stated, “There
was a 40-mile- an-hour speed limit sign, I would say, halfway between the end
of my driveway and where her car stopped going south on 2, and coming north on
2 there is a 40 mile an hour speed limit sign what, 150 yards beyond the
intersection, something like that.
Employees of respondent also testified. Harry Robert Miller, Jr. stated that
respondent worked on Route 2 on June 22, 1985. Surface treating was performed.
There was a slight amount of excess gravel left on the road, but had brooms
were utilized to remove the excess gravel before respondent’s crew departed. He
stated that the speed limit through the area of the accident was 40 mile per
hour on June 23, 1985. Claude Blake, Chief Investigator for respondent, visited
the site on July 8, 1987. He stated that there was a 40 mile per hour speed
limit prior to the intersection, and a 55 mile per hour speed limit beyond
the location of Mrs. Duty’s accident. Mr. Blake could not personally confirm
that these speed limit signs were present at the time of this accident.
The record reveals that gravel was removed from this area of Route 2 prior to
the day of Nancy Duty s accident. The Court is of the opinion that the speed of
the vehicle was the proximate cause of the accident and the resulting injuries
to Nancy Duty. The Court is of the opinion to, and accordingly must, deny this
claim.
Claim disallowed.
Judge Gracey did not participate in the hearing or decision of this claim.
OPINION ISSUED MARCH 21, 1989
SAFECO INSURANCE, AS SUBROGEE
FOR GEORGE GUTHRIE
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-96)
David B. Thomas, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On October 12, 1985, at approximately 2:00 a.m., claimant’s insured, George
Guthrie, was operating his 1983 Cadillac El Dorado on Secondary Route 81 in the
vicinity of Mammoth, Kanawha County. As he approached a bridge, he observed a
motorcycle coming toward his
W.Va.1 REPORTS
STATE COURT OF CLAIMS 213
vehicle in the opposite direction. He drove to the right off of
the paved portion of the road. As he came back onto the road and drove onto the
bridge, his vehicle left the bridge, turned over, and landed in Kelly’s Creek.
Claimant seeks $15,440.40. This amount includes claimants insureds $200.00
deductible, his hospital bills for personal injuries which resulted from the
accident, and damage to the automobile.
Claimants insured testified that he was returning to his home from a private
residence. He was travelling in the direction of Route 60. It was dark, but
clear. He observed no street lights and few other lights. Prior to the date of
this incident, he had not driven on this particular route. However, he had
travelled over this particular bridge three times earlier on the evening of the
accident.
Claimant explained that as one enters the bridge from both ends, the ends may
be compared to an ‘S.” When he first observed the motorcycle, he felt that it
was going to have contact with the left fender of his vehicle, and he drove his
vehicle off of the road. He stated that it was a “swiveling effect,’ He
returned to the road after the motorcycle had passed his vehicle. He was
attempting to line his vehicle up with what he assumed was the center of the
bridge. Thereupon, the left front wheel of claimant’s vehicle went off of the
highway, and the vehicle ended up in the creek.
Corporal George F. Bearfield was the investigating officer. He arrived at the
scene at 2:26 am. He testified that there was a dangerous curve before the
bridge. There were no signs indicating the narrowing of the road. The guardrail
at the upper end of the bridge was down at the time of this incident. Although
he did not observe Mr. Guthrie operating his automobile, he did write
“exceeding safe speed” as a contributing circumstance on the accident report
which he had prepared in his investigation of the accident. He testified that
“In looking at the accident, I considered it to be that Mr. Guthrie was not
familiar with the road, the oncoming traffic blinded him and he was Just moving
too fast for the road. It’s just the type of road you need to slow down
on. If you’re familiar ith it, you need to slow down, and with oncoming
traffic, he needed to slow down even more but, you know, I didn’t see any skid
marks so I’m saying, well, he was running a little too fast.
Claude Blake, Chief Investigator for respondent, testified that this is a
one-lane bridge and the road follows the creek. He stated that the speed limit
was 35 miles per hour in this area at the time of the incident.
Steve Campbell, bridge engineer for respondent, checked respondent’s records
and found no record of complaints for this area prior to October 12, 1985. This
bridge is inspected every two years. It is standard practice of the respondent
to have hazard paddles on all four corners of a bridge, but there were only two
paddles located on the driver’s right side of the bridge at the time of the
incident. The hazard paddles were not up on the left corners of the bridge.
214 REPORTS STATE
COURT OF CLAIMS [W.Va.
After carefully reviewing the evidence, the Court is of the opinion that the
failure on the part of the respondent to maintain the guardrail and hazard
paddles on the bridge was not the proximate cause of this accident. It is the
opinion of the Court that the insured’s speed was the proximate cause of this
accident. For this reason, the claim must be denied.
Claim disallowed.
OPINION ISSUED MARCH 21, 1989
WESTVACO CORPORATION
VS.
DEPARTMENT OF HIGHWAYS
(CC-88-285)
Deborah Y. VanDervort, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
On July 26, 1987, at approximately 2:30 p.m., Richard D. Persinger and his
family were travelling in his employer, Westvaco’s, 1986 Ford Bronco. Westvaco
leases the vehicle through D. L. Peterson. They approached the intersection of
Bluestone (Route 4) and Dry Hill Road, (Route 11), Raleigh County. Mr.
Persinger attempted to make a left-hand turn. There were overhanging
rhododendron and white pine at the edge of the road. He was unable to see a
motorcycle approaching, and an accident occurred when the motorcycle struck the
Bronco. The operator of the motorcycle sued claimant. The case was settled for
$25,000.00 and claimant now seeks $25,000.00 from respondent.
The day was one of bright sunshine. Mr. Persinger was towing a Datsun trailer
behind the Ford Bronco. At the intersection he said he could only see
approximately twenty feet up the road to the left. The motorcycle was headed
toward Beckley on Dry Hill Road and Mr. Persinger’s vehicle entered the highway
in front of the motorcycle. He was not familiar with the accident site. He had
visited this site only once and this was approximately two years prior to this
incident. As he approached Dry Hill Road (Route 11), he was travelling on
Bluestone (Route 4) and came to a stop sign. This was 10 to 15 feet back from
where Route 11 and Route 4 intersect. Mr. Persinger was able to see the
motorcycle 50 to 60 feet before the accident. He explained that the flaring on
the motorcycle struck the Bronco. Bluestone (Route 4) is a two-lane, asphalt
highway, and the speed limit was forty miles per hour.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 215
Mrs. Betty L. Treadway, who travels this route everyday, testified that one’s
visibility on Routes 11 and 4 is affected by the growth of vegetation. The vegetation
has been present for the time in which she has lived in the area, which is
several years.
Emerson Stover, Supervisor of Raleigh County for respondent, testified that he
lived near the site of the accident. He received a complaint several summers
before the time of the incident, but he could not give the exact date. He took
the call himself. He observed the intersection on the day on which he received
the complaint. He felt that no corrective action was necessary and he did not
take any action. According to Mr. Stover, all of the vegetation is on private
property. If he felt that there was a hazard on private property, he was the
individual responsible for initiating the corrective action in Raleigh County.
Victor Carl Fitzwater, acting Assistant Supervisor in Raleigh County for
respondent, testified that Routes 11 and 4
are State and local service roads. He
had never received any complaints prior to this accident regarding this
intersection. He visited this site on December 14, 1988. He observed at that
time that 100 to 110 feet up the intersection an individual was putting in a
driveway and that a few rhododendron bushes had been removed. He also observed
that the pine trees had been topped “... apparently
by the power company or someone like that.” The rhododendron bushes were, at
some placed, within four, eight inches of the paved portion of the highway.
There is disagreement over whether or not the vegetation posed a hazard. It
borders State and local service routes which are not respondent’s priority
maintenance roads. The sole complaint received by respondent was investigated
by a representative of the respondent, the county supervisor. For these reasons
the Court is of the opinion to, and must, deny the claim.
Claim disallowed.
OPINION ISSUED APRIL 26, 1989
WILLIAM 0. COEN
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-236)
Jeffrey V. Kessler, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
WALLACE, JUDGE:
216 REPORTS STATE
COURT OF CLAIMS [W.Va.
On August 25, 1986, the claimant was travelling on Fish Creek Road
(County Road 74), in Marshall County, in his 1976 Dodge van. The road gave way
underneath the van. As a result, the van was totalled. Claimant seeks
$15,000.00.
Claimant testified that he was travelling from Moundsville to his home in
Marshall County. He left Moundsville between 3:30 and 4:00 p.m. He drove this
route two to three times per week and was aware that there was a “bad spot’ on
the left side of the road. He stated that the road had been “semi-repaired His
speed was 15 to 20 miles per hour. The right front wheel of the van went down
into a place where a piece of the asphalt road had broken off under the wheel
of the van. The van turned over and ended up in the creek. Claimant crawled
back up to the highway and received assistance. County Route 74 is supposed to
be a two-lane road, but parts of it are not, according to the claimant. There
were no warning signs nor road markings present at the time of claimant’s
accident. The piece of the road which broke off was approximately afoot wide.
The claimant had observed problems in this area of the road in the past. The
dirt beneath the pavement had washed away, and there was no support for the
asphalt. His van was a width of a tire from the edge of the road at the time of
this incident. The van was five or six yards from the highway when it landed in
the creek, and the van was right in against the bank on the roadside of the
creek. The claimant was transported to Reynolds Memorial Hospital, and he
remained there one night. He suffered bruises on his legs and an infection in his
scalp.
Gordon Scott Peake, Area Maintenance Engineer with respondent, testified
concerning the area of the accident. The road is 12 feet wide at the narrowest
point and 14 feet wide at the widest point. The accident site is an old slip
area which has been present for at least 10 years. It is relatively level and
in a right-hand curve. On January 12, 1989, Mr. Peake was at the site and noted
that there was a “one Lane Road” sign 1,000 feet south of the slip. He stated
that the slip has not been repaired because it is located out in the country,
and it is 14 miles from Route 2. The average daily traffic county on this road
is very low. He admitted that it is a slip area and is saturated with water due
to an abandoned creek. He explained that the surrounding area “... picks up a lot of ground water. ‘ He could not say if the warning sign was present on the
day of the accident.
It is the opinion of the Court that the record does not support a showing of
negligence on the part of respondent. Respondent had neither actual nor
constructive notice of this hazard. The Court has previously held that where
there was no evidence that respondent knew or should have known of the
propensity of the road to collapse, there will be no recovery on the part of
the claimant. See Motorists Mutual Ins.
Co. vs. Dept. of Highways, (Opinion
issued December 3, 1988); Wineiniller
vs. Dept. of Highways, (Opinion issued
March 3, 1989). Therefore, the Court must deny this claim.
Claim disallowed.
W.Va.1 REPORTS
STATE COURT OF CLAIMS 217
OPINION ISSUED APRIL 26, 1989
ROBERT DARRAH, ADMINISTRATION OF THE
ESTATE OF
BRYAN DEAN DARRAH
VS.
DEPARTMENT OF HUMAN SERVICES
(CC-86- 102)
Anthony J. Mohan and Leonard Z. Alpert, Attorneys at Law, for claimant. Robert
D. Pollitt, Deputy Attorney General, for respondent.
HANLON, JUDGE:
Claimant brought this action upon the death of his son, Bryan Dean Darrah, on
March 16,
1984. Bryan Darrah, age 23, was the victim of a violent act on the part of Roy
Workman, Jr.,
a foster child of the Darrah family who was 14 years of age at the time of the
incident. As a result
of the violent act, Bryan Darrah lost his life.
Claimant alleges negligence on the part of the respondent. Roy Workman, Jr.,
was placed with the Darrah family in May 1970 when he was approximately two
years of age. From the age of three to five years on, he exhibited a propensity
for fabricating false stories, for overeating, and for stealing from other
family members. His behavioral problems became more apparent as he grew older. Claimant
alleges that social workers from the respondent agency were aware ofRoys
behavioral problems, but that they did nothing to resolve them. Claimant and
his wife requested psychological evaluations which were never performed.
Jean Spear, a social worker employed as a Case Worker II with respondent and
assigned to the foster family situation for Roy Workman, Jr., testified that
she prepared a written service plan for Roy Workman, Jr., on April 20, 1982.
Under the heading “Tasks’ she wrote, “... See
about having a psychological done.” Under the heading Monitor - there was the notation, Also carry through on judicial
review.’ She admitted that she did not discuss the need for the psychological
testing with her supervisor, Fred Kurse. However, Mr. Kurse signed the service
plan on April 22, 1983. Mrs. Spear testified that the request for a
psychological evaluation of Roy was made by the Darrahs in 182. She does not
recall that the Darrahs made subsequent requests for psychological testing
after October, 1982.
Frankie Darrah, mother of the deceased, testified concerning the psychological
tests. She stated that these tests were requested by her and her husband for
Roy in April, 1982. When queried concerning subsequent requests for the tests,
she stated, “Yes. I requested them over the years, some kind of help for Roy.”
She and her husband did not have the authority to have a psychological
evaluation performed for Roy because they were not his legal guardians.
218 REPORTS STATE
COURT OF CLAIMS [W.Va.
After carefully reviewing the evidence in this claim, the Court is of the
opinion that respondent was not negligent in the handling of the Workman review
process. Although the foster parents did communicate to the agency the need for
psychological testing for Roy Workman, Jr., this communication was made in
1982, and the homicide occurred in 1984. The Court would have to resort to
speculation to determine that had the psychological testing and evaluation been
performed, the tests would have revealed this foster child’s propensity for
violence. The evidence herein does not establish that respondent was aware of
or should have been aware that permitting Roy to remain in his long-term foster
care setting placed the members of the foster family in a dangerous environment.
Martha Thaxton, Admin. of the Estate of Joseph Philip Hancock, dec., vs.
Dept. of Human Services, CC-78-263, (Opinion issued December 3, 1987).
Although the Court sympathizes with the loss experienced by the Darrah family,
the Court finds that there was no breach of duty on the part of the respondent,
and, therefore, no resulting negligence. This claim must be, and is hereby,
denied.
Claim disallowed.
OPINION ISSUED APRiL 26, 1989
HARRY ALLAN WHITE, INDIVIDUALLY, AND AS
ADMINISTRATOR OF THE ESTATE OF GEORGIA M. WHITE
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-287a)
A.J. Ryan and Randy G. Clark, Attorneys at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
GRACEY, JUDGE;
On or about January 6, 1985, claimant’s wife, Georgia White, was travelling on
State Route 49 near Matewan, Mingo County, in a 1983 Chevrolet pickup truck.
The vehicle which Georgia White was operating slid on a patch of ice on the
highway. She lost control of the vehicle which struck a wall. She died in the
accident. Claimant seeks $175,000.00 for the wrongful death of his wife.
Claimant alleges that the area where the accident occurred is improperly
ditched. In addition, this defective condition has existed for a long period of
time, and respondent had constructive notice of said defect, and, therefore, is
negligent.
W.Va.J REPORTS
STATE COURT OF CLAIMS 219
Deborah Kay Scott, daughter of the deceased, was following her mothers vehicle
in another vehicle on the night of the incident. She testified that she left her
home at approximately 8:30 p.m. accompanied by Georgia White and Shirley
Johnson. They went to Dougs Lounge and then to the Silver Dollar. These are
social establishments. She thought that her mother had a single drink at Dougs,
and she did not stay with her at the Silver Dollar. She was unable to state
whether her mother had a drink at the second bar. They left the second bar
between 3:00 a.m. and 3:30 a.m. Georgia was driving the pickup truck. Yvonne
Montgomery was driving the vehicle in which Deborah Scott was a passenger. She
estimated that the speed of the Montgomery vehicle was approximately 25-30
miles per hour. The truck operated by Georgia White passed the Montgomery
vehicle. There was a double yellow line present according to Deborah Scott. She
estimated that the speed of the White truck was approximately 40-45 miles per
hour. When Georgia White attempted to drive back into her lane of travel, the
vehicle slid on the ice. It then slid into a wall adjacent to the left side of
the road and bounced back across the road to the other side of the road.
Georgia White and Donme were laying “... like
up agin the brick wall and Shirley, she was laying over in those people’s
yard.” She further testified that on the trip from Doug s Lounge to the Silver
Dollar, they passed the area of the accident site for the second time. When
they passed the accident site for the third time that evening, the accident
occurred. She also indicated that 25 miles per hour speed limit signs were
present on the night in question on Route 49 South and Route 49 North.
Nora Talbert has lived in a residence adjacent to State Route 49, near Matewan,
since 1940. She stated that it is in a low lying area. After the flood in 1977,
her house was raised six feet. Presently, the house is level with the highway.
There is a concrete wall between her property and State Route 49. She testified
that there has been a problem with drainage. “... we have no where for the water to go except out on the highway.” She
stated that there is frequently standing water in that location. None of the
road is ditched. She further testified that before the 1977 flood, the
respondent constructed a ditch line near Sulfur Creek. This ditch is no longer
present, but she could not confirm whether it was present at the time of
Georgia Whites accident. Mrs. Talbert stated that the White accident occurred
where Sulfur Creek Road intersects with State Route 49.
Wendell B. Mullins, County Maintenance Superintendent for Mingo County with
respondent, checked records maintained by respondent to determine if there were
any complaints regarding this particular section of Route 49 prior to January
6, 1985. He did not find any complaints about this section of Route 49. Charles
R. Lewis, II, Planning and Research Engineer with respondent, testified that he
reviewed the accident reports from January 1, 1987 through the date of the
accident. He found no reports of accidents for that time period. He did find a
report of an accident which had occurred prior to 1981. It occurred on November
10, 1980.
This Court has repeatedly held that the State is not a guarantor of the safety of
travelers on its highways. Adkins vs.
Sims, 130 W.Va 645, 46 S.E.2d
81(1947). Exceptions have been made where it has been established that
respondent had actual or constructive notice of a defect, and, having adequate
time, failed to correct the defect or provide warning signs or barriers. The
220
REPORTS STATE COURT OF CLAIMS [W.Va.
Court has also held that the State will not be required nor expected to keep it
highways free of ice and snow at all times. The presence of an isolated ice
patch on a highway during winter months is generally insufficient to charge the
State with negligence. See 39 AM. JUR. 2d Highways, Streets and Bridges, §506. See also Woofter vs. State Road
Comm ‘n., 2 Ct.Cl. 393 (1944); Christo vs. Dotson, 151 W.Va. 696, 155 S.E.2d 571 (1967).
The Court is of the opinion that Georgia White, having travelled Route 49
frequently, was aware of the potential hazard of ice at this location. This
road is marked in the area of the accident site with a double yellow line
indicating a no passing area. The evidence established that she was operating
her vehicle at a speed which was not safe for the conditions then and there
existing. It is the opinion of the Court that these factors were the proximate
cause of this accident. For these reasons, the Court is of the opinion to, and
must, deny this claim.
Claim disallowed.
Judge Wallace did not participate in the hearing or the decision of this claim.
OPINION ISSUED JUNE 6, 1989
ARLISS JONES AND JENNIFER WILLIAMS
VS.
DEPARTMENT OF HIGHWAYS
(CC-88-303)
Claimants appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
WALLACE, JUDGE:
Claimants seek $18,800.00 for damage to an automobile and also personal
injuries arising out of an automobile accident which occurred on December 10,
1986. Claimant, Jennifer Williams, was a passenger in the 1983 Chevrolet
Cavalier titled in claimant Arliss Jones’ name. At the time of the incident,
the Cavalier was driven by Jeffrey Todd Williams, present husband of claimant
Williams.
Jeffrey Todd Williams was operating the automobile in a southerly direction
toward Alderson on West Virginia Route 12. The highways is a two-lane road, and
its surface was dry at approximately 10:00 p.m., when this incident
occurred. Mr. Williams testified that his speed was approximately fifty-seven
miles per hour. The headlights of the automobile which he was operating were on
low beam. He is familiar with this route as he had driven it to and from his
W.Va.] REPORTS
STATE COURT OF CLAIMS 221
place of employment for a period of four-to-six months prior to the accident.
He stated that the weather was clear and dry. He was on a straight section of
the road when his vehicle encountered rocks. He was of the opinion that the
rocks came from a hillside to the right of the highway. He was unable to
maneuver the automobile to avoid striking the rocks which were in the
automobile’s path.
Claimant Arliss Jones testified that she had operated a vehicle on West
Virginia Route 12 on the evening of the accident. She stated that when she
travelled the roadway at approximately 9:00 p.m., she did not observe any
fallen rocks. She had purchased the automobile involved in the accident as a
used vehicle for $3,600.00 six months before the accident occurred. The
automobile was totalled and claimant Jones received approximately $400.00 as
salvage for her automobile.
Claimant Jennifer Williams testified that she has reoccurring headaches and
back pain as a result of the accident. She has not seen a physician since
April, 1988, due to the expense of medical treatment.
Two employees of the respondent, Eugene Ray Tuckwiller and Charles Raymond
Lewis,
II, testified. Mr. Tuckwiller stated that the accident area had not been
brought to his attention as
a falling rock problem area. Mr. Lewis records of the respondent revealed that
there have not
been any other fallen rock accidents reported in this area for a three-year
period prior to December
10, 1986.
The State is neither an insurer nor a guarantor of the safety of motorists on
its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81(1941). This
Court has held on numerous occasions that the unexplained falling of rock onto
a highway without a positive showing that respondent knew or should have known
of a dangerous condition is insufficient to justify an award. Hammond vs.
Dept. of highways, 11 Ct.Cl. 234 (1977); Adkins vs. Dept. of Highways, 13
Ct.Cl. 307 (1980); Hatfield vs. Dept. of Highways, 15 Ct.Cl. 168 (1984);
and Baron vs. Dept. of Highways, CC-87-73 (Opinion issued March 24,
1988). As the claimants herein have not presented evidence to establish notice
on the part of the respondent of the rocks in the road or that the respondent
knew or should have known of the propensity of rocks to fall in this particular
area of West Virginia Route 12, the Court must deny this claim.
Claim disallowed.
222
REPORTS STATE COURT OF CLAIMS [W.Va.
REFERENCES
• ADVISORY OPINION
• ATTORNEY FEES
• BERMS
• BRIDGES
• BUILDING CONTRACTS
• COLLEGES and UNIVERSITIES
• CONTRACTS
• CONSTRUCTION CONTRACTS
• DRAINS and DRAINAGE
• EXPENDITURES
• JURISDICTION
• NEGILIGENCE
• NOTICE
• PARKS and RECREATIONAL AREAS
• PEDESTRIANS
• PRISONS AND PRISONERS
• REAL PROPERTY
• ROCKFALLS
• STATE AGENCY
• STREETS and HIGHWAYS
• TAXES and TAXATION
• TREES
• OTHER
W.Va.] REPORTS
STATE COURT OF CLAIMS 223
ADVISORY OPINION
SECRETARY OF STATE VS. DEPARTMENT OF EDUCATION (CC-87-432)
The Court reviewed a claim between two State agencies and determined that the
respondent State agency did owe funds to the claimant State agency for which
the Court advised an
award p. 71
ATTORNEY FEES
SANFORD CLEGG, III VS. DEPARTMENT OF CORRECTIONS (CC-86-456)
The Court made an award for reasonable
attorney fees and expenses incurred by the claimant when he had to bring an
action in U.S. District Court to recover back wages due him by the
respondent State agency p. 174
BERMS
CAROL BAKER VS. DEPARTMENT OF HIGHWAYS (CC-88-146)
Where claimant drove onto the berm of the road to move over for an emergency
vehicle, the Court held that the claimant was not negligent in the maintenance
of the berm which was in
defective condition p. 169
COOPER VS. DIVISION OF HIGHWAYS (CC-87-14)
The Court made an award where claimant established respondent failed to report
a large hole near the berm of the road. The Court held that respondent had
constructive notice based upon the
size of the hole p. 18
WILLIAM RAY FITZWATER VS. DEPARTMENT OF HIGHWAYS (CC-86-263)
The Court found respondent negligent for failure to place guardrails on a dangerous
curve as respondent was aware of the unusual hazard which existed. The Court
also found claimant was comparatively negligent as he was operating his vehicle
at an excessive rate of speed for the conditions then and there existing.
Claimants damages were reduced by ten percent. . . p. 176
MCPHERSON, ET AL. VS. DIVISION OF HIGHWAYS (CC-80-229)
Where claimants failed to establish a reason for the driver of a vehicle to
proceed onto a berm, the Court held that it will not resort to speculation. The
Court is unable to establish negligence on the part of the respondent for
neglect of the berm. The Court denied the claim p. 31
MOORE VS. DIVISION OF HIGHWAYS (CC-87-38)
Claimants motor home struck a hole located on the berm for which claimants
alleged respondent was negligent in failing to provide a safe berm. The Court
held that a traveler on the States highways at its own risk uses the berm at
its own risk p. 63
224 REPORTS STATE
COURT OF CLAIMS [W.Va.
OFFUTT VS. DIVISION OF HIGHWAYS (CC-87-427)
A claim for damage to a vehicle which struck a rock on the berm of the road was
denied by the Court as there was no notice to respondent of the defect on the
berm p. 139
MCDOWELL COUNTY BOARD OF EDUCATION VS. DEPARTMENT OF EDUCATION (CC-85-1 14),
THE BOARD OF EDUCATION OF THE COUNTY OF MCDOWELL A CORP., FT AL. VS. BOARD OF
REGENTS (CC-84-128)
Claimant county brought an action to recover the amount of a judgment rendered
against it by the McDowell County Circuit Court which occurred as the result of
advice which it received from the respondent as to the interpretation of the
application of levy monies and the salaries paid by the county to its school
service employees. The Court determined that respondent was liable for the
judgments rendered against claimant as claimant acted upon the advice of
respondent in good
faith p. 170
BRIDGES
BARBOURSVILLE BRIDGE CO. VS. DIVISION OF HIGHWAYS (CC-84-201)
Respondent provided the design for a cofferdam to be used on the project and
the cofferdam failed. The Court granted an award for the extra labor and costs
to the contractor. .
. . p. 123
BARILE VS. DIVISION OF HIGHWAYS (CC-86-361)
The respondent acted promptly to take safety precautions for concrete debris on
a bridge. The Court determined that there was no negligence on the part of the
respondent for damage to
claimants vehicle which struck the debris p. 99
HANSON VS. DIVISION OF HIGHWAYS (CC-87-703)
Claimant fell on steps adjacent to a bridge and the Court determined respondent
was negligent for failing to discover and correct the hazardous condition of
the steps p. 157
KELLISON, ET AL. VS. DIVISION OF HIGHWAYS (CC-85-396)
Although a guardrail on a bridge was
missing, the Court could find no adequate explanation for why the decedent
drove off the road rather than proceeding onto a bridge p. 117
MATTHEY VS. DEPARTMENT OF CORRECTIONS (CC-87-9)
The Court determined respondent had constructive notice of a hole in a bridge
where the
deterioration of the bridge was extensive p. 141
MARCUM AND MESSER VS. DIVISION OF HIGHWAYS (CC-87-78a&b)
Claimants vehicle was stopped suddenly on a bridge where the wooden bridge deck
deteriorated and a timber came up through the floor board of the vehicle. The
Court found respondent negligent in its maintenance of the bridge p. 149
W.Va.] REPORTS
STATE COURT OF CLAIMS 225
SHREWSBURY VS. DIVISION OF HIGHWAYS (CC-87-179)
The Court denied a claim for damage to a vehicle from a guardrail on a bridge,
as the claimant observed the guardrail and her negligence was equal to or greater
than the respondents. p. 109
SPENCE VS. DIVISION OF HIGHWAYS (CC-86-284)
Where a hole appeared suddenly and respondent took the necessary safety
precautions as it was aware of the hazard, the Court determined that the
respondent was negligent p. 72
STATE FARM MUTUAL, ET AL. VS. DIVISION OF HIGHWAYS (CC-86-210)
The Court made an award for damages to a vehicle where the vehicle struck an
expansion joint on the bridge, and respondent was held liable for a hazardous
condition which had existed for
some time prior to claimant’s accident p. 83
STOVER VS. DIVISION OF HIGHWAYS (CC-88-156)
The Court found respondent negligent in its maintenance of a bridge when an
expansion joint
caused damage to claimant’s vehicle p. 151
BUILDING CONTRACTS
ALIFF CONSTRUCTION VS. DEPT. OF NATURAL RESOURCES (CC-79-64l)
Where claimant contractor established that it performed extra work in the
construction of a project. The Court made an award for certain of the items
established by the claimant. . p. 3
BARBOURSVILLE BRIDGE CO VS. DIVISION OF HIGHWAYS (CC-84-201)
Where respondent provided the design for a cofferdam to be used on the project
and the cofferdam failed. The Court granted for the extra labor and costs to
the contractor. .
. . p. 123
CAPON BRIDGE CO. AND SENIOR CENTER VS. G.O.C.I.D. GLENVILLE VS. G.O.C.I.D.
(CC-87-400 & CC-87-513)
Claimant had a contract under the Governor’s Community Partnership Grant
Program but the grant money was not forthcoming when the Treasury lacked
sufficient funds to satisfy the grant. The Court made an award for that portion
of the grant which the claimant failed to receive in the
proper fiscal year p. 96
E.P. FOGLEMAN CONSTRUCTION VS. BOARD OF REGENTS (CC-79-190)
Claimant alleged that respondent failed to pay extra for work required on a
construction project, but the Court made an award for an amount retained by
respondent reduced by repairs made by respondent after claimant completed the
project 40
GREGG VS. DEPARTMENT OF FINANCE AND ADMINISTRATION (CC-79-514)
Claimant sustained severe injuries while employed by an independent contractor
performing renovation work on the State Capitol Building. Claimant alleged that
respondent failed to provide a safe work place in accordance with OSHA
regulations. The Court held that this is a claim under
226 REPORTS STATE
COURT OF CLAIMS [W.Va.
the Workers Compensation Fund as deliberate intent was not established on the
part of the
respondent p. 51
LANE CONSTRUCTION VS. DIVISION OF HIGHWAYS (CC-82-164)
Claimant constructed several miles of the Highland Scenic Highways under the
supervIsion and under a contract with the respondent State agency. The Court
determined that the claimant suffered delay on the project when a slide
occurred and redesign of the project by necessary. The Court made an award for
costs incurred by claimant as result of the delay p. 73
S.J. GROVES, ET AL. VS. DIVISION OF HIGHWAYS (CC82-295 and CC-83-233)
The Court made an award for extra work performed in preparing steel girders for
respondent where the standards imposed were more stringent than normally
required. .
p. 78
SNODGRASS ET AL. VS. DIVISION OF HIGHWAYS (CC-7&55)
The Court denied a claim even though OSHA regulations were violated by a
contractor engaged by the respondent to construct a bridge as the Court found
the respondent’s construction
was not the proximate cause of the accident p. 113
V & G, INC. VS. DIVISION OF HIGHWAYS (CC-83-207 and CC-832O8)
The Court made an award for the liquidated damages assessed on a project as
respondent was not damaged by the failure of claimant to complete the project
within the contract period. The Court determined claimant contractor was
entitled to an award for extra work on a project where the claimant had to
“borrow” matter on a project wherein the contract indicated there would be
substantial matter at the site. Respondent did not contemplate the need to
“borrow” matter in a
project p. 153
COLLEGES AND UNIVERSITIES
BOGGAN VS. BOARD OF REGENTS (CC-87-474)
Where a pedestrian walked into a sharp pipe which was not on the sidewalk. The
Court denied
the claim as there was no notice of the defect p. 130
BROWN VS. DIVISION OF HIGHWAYS (CC-86-270
Although claimant established notice on the part of the respondent and that it
was negligent in failing to maintain a road, claimant also had knowledge of the
condition of the road and was
negligent. The Court denied the claim p. 27
HARTWELL VS. DIVISION OF HIGHWAYS (CC-87-145)
Where the claimant was aware of the defective condition in the road and she had
reported this condition, the Court denied the claim as the negligence of the
driver was equal to or greater than
that of the respondent p. 107
W.Va.J REPORTS
STATE COURT OF CLAIMS 227
MCDOWELL VS. DIVISION OF HIGHWAYS (CC-87-242)
Respondent was negligent in its placement of barrels in a construction area;
however, the Court found that the claimant was also negligent as she was in a
position to observe the cut areas
in the highway p. 140
CONTRACTS
EASTERN ASSOCIATES VS. BOARD OF REGENTS (CC-87-156)
The Court upheld the provisions of a lease entered into by the parties and made
an award to the claimant for the amount of rent respondent failed to pay
claimant p. 39
JADALEE STABLES, JACKS. HORNER VS. DEPARTMENT OF COMMERCE (CC-88-164)
Where the lease agreement between claimant and respondent provided that
claimant lessee assumed all risk in the operation of his business at Watoga
State Park, the Court determined that respondent was not liable for personal
property lost by lessee in a fire of the horse
facility p. 165
R.L. BANKS & ASSOC., INC. VS. PUBLIC SERVICE COMMISSION (CC-88-302)
An award for professional services rendered to a State Agency under a contract
with the agency was made by the Court, but the interest claimed was denied as
it did not come within the
provision of W.Va. Code §5A-3-1 p. 159
CONSTRUCTION CONTRACTS
THE LANE CONSTRUCTION CORPORATION VS. DIVISION OF HIGHWAYS (CC-83-172)
Claimant contractor constructed a portion of 1-77 in Kanawha County and it
incurred additional costs as a result of plan errors, changed site conditiom,
and respondent’s failure to timely approve rock borrow sources. Claimant
experienced problems on the project as a result of rock borrow and the project
became a “waste project.” The Court found that the facts established a changed
condition which caused the claimant to incur additional costs for which the
Court made an award.
p. 180
ELLIS VS. DIVISION OF HIGHWAYS (CC-87-180)
Where claimant’s vehicle was splashed with paint, but she failed to submit an
estimate for the damage, the Court will not base an award upon speculation and
the Court denied the
claim p. 106
DRAINS AND DRAINAGE
BOMBOY VS. DIVISION OF HIGHWAYS (CC-85-298)
Where a stopped up culvert caused flooding on claimant’s property the Court
made an award as the lack of a grate on the culvert contributed to the flooding
on the claimant’s
property p. 144
228
REPORTS STATE COURT OF CLAIMS [W.Va.
HUNT VS. DIVISION OF HIGHWAYS (CC-87-429)
Where the claimant’s property is in a natural drainage area but an unusual
rainfall caused flooding, the Court determined that there was no negligence on
the part of respondent. .
p. 132
KNOTT, ET AL. VS. DIVISION OF HIGHWAYS (CC-85-351)
The Court made an award to the claimant where his wife was fatally injured in
an accident caused by respondent’s failure to properly maintain a drain ditch
on the side of a highway. Ice formed creating a hazardous condition on the road
for which respondent was negligent. p. 54
KOUNS, ET AL. VS. DIVISION OF HIGHWAYS
(CC-86-215)
Claimant alleged that her husband died in an accident which was caused when his
automobile struck ice adjacent to the berm of the road. The Court denied
liability as the evidence established that the decedent was traveling at an
excessive rate of speed for the conditions on the road.p. 57
LEFFEW VS. DIVISION OF HIGHWAYS
(CC-86-79)
Claimants alleged water damage to their property caused by the resurfacing of
the Chelyan Bridge. The Court determined that the resurfacing of the bridge was
not the sole proximate cause
for the water problems p. 58
MAXEY VS. DIVISION OF HIGHWAYS (CC-86-323)
Claimant’s property was damaged by excess water which occurred after respondent
performed
construction on an interstate adjacent to claimant’s property p. 44
TERRELL VS. DIVISION OF HIGHWAYS (CC-86-271)
As a result of negligent maintenance of a culvert, claimants’ property
sustained flooding and the Court made an award for the damage to claimants’
home and property. Where there were many factors, including an unusual amount
of rain at the time of a flood and a lack of down spouts on the house, the
Court recommended an award be made to claimants for flooding their
property p. 121
EXPENDITURES
AIDE’S DISCOUNT VS. DEPARTMENT OF HEALTH (CC-87-244)
Claimant furnished items to respondent pursuant to a valid purchase order.
Although respondent’s budget had sufficient funds, the State Auditor was unable
to make payment as the Treasury lacked sufficient funds to process the
transmittal. The Court made an award to the claimant which included interest in
accordance with W.Va. Code § 14-3-1 p. 34
ALPHA THERAPEUTIC CORPORATION VS. DEPARTMENT OF HEALTH (CC-87-315)
Claimant furnished items to respondent pursuant to a valid purchase order.
Although respondent’s budget had sufficient funds, the State Auditor was unable
to make payment as the Treasury lacked sufficient funds to process the
transmittal. The Court made an award to claimant which included interest in
accordance with W.Va. Code §14-3-1 p. 35
W.Va.1 REPORTS
STATE COURT OF CLAIMS 229
PAUL T. CAMILLETTI VS. OFFICE OF THE ATTORNEY GENERAL (CC-89-18)
The Court
made an award to the claimant for services
rendered to respondent as a Special Assistant Attorney General as the invoice
for claimants services was not processed for payment in the proper fiscal year.
Respondent admitted that the claim was valid and the amount of the
claim was fair and reasonable p. 173
GFRL VS. HUMAN RIGHTS COMMISSION (CC-88-103)
Claimant served as a hearing examiner for a State agency but was not paid as
there were insufficient funds in the Treasury of the State. The Court made an
award to the claimantp. 120
HOPE GAS, INC. VS. DEPARTMENT OF HEALTH (CC-87.250)
Claimant was made an award by the Court for furnishing gas to a facility of the
respondent but the respondent failed to pay the clatrn as the treasury of the
State lacked sufficient. The Court
included interest in its award p. 36
MOORE BUSINESS FORMS & SYSTEMS DIVISION VS. DEPARTMENT OF F&A (CC-86-
212)
A Jaim for a bill of lading was awarded by the Court
where claimant was not the party that
made the error p. 11
SHORT VS. DEPARTMENI OF EDUCATION (CC-88-253)
The Court made an award for tuition expenses which claimant incurred to renew
her teaching certificate and respondent failed to iimhurse claimant in the
proper fiscal year p. 69
ALFSTAD VS. D1\ ISION OF HIGHWAYS (CC8T.92)
Where an independent contractor foi respondent created a hole in the pavement
causing damage to claimants vehicle, the Court held that respondent cannot be
found liable for torts
committed by n iedependent c. otractor p. 48
COOPER VS. DIVISION OF HIGHWAYS (CC-84-263)
Where the record established that an independent contractor was performing
construction in the area of claimant accident, the Court held that respondent
can not e held liable for any
negligence p. 70
ESTEP VS. DIVISION OF HIGHWAYS (CC-86-359)
When an independent contractor is performing work on a State road respondent
will not be held liable for negligence of the individual contractor where rocks
in the road caused damage to
claimants vehicle p. 10
GROSE VS. DIVISION OF HIGHWAYS (CC-86-260)
The general rule is that the employer of an independent contractor is not
liable for torts committed by the independent contractor. The Court denied a
claim as the resurfacing project was performed by an independent contractor of
the respondent p. 53
230 REPORTS STATE
COURT OF CLAIMS [W.Va.
MORRISON VS. DIVISION OF HIGHWAYS (CC-86-301)
Where an independent contractor was performing work for the respondent, and
claimants incident was alleged to be caused by the negligence of the
independent contractor p. 33
JURISDICTION
LONG VS. STATE AUDITOR’S OFFICE (CC-88-135)
Where the claimant had a legal remedy through a statutory process the Court
lacked jurisdiction over the subject matter of the claim for property bought
from the Deputy
Commissioner of Forfeited Land p. 135
MOLLOHAN VS. STATE AUDITOR’S OFFICE (CC-87-392)
The Court of Claims lacks jurisdiction over a tax sale where claimant purchased
property which belonged to another individual. There is a statutory remedy
available to the
claimant p. 141
SHANK VS. DIVISION OF HIGHWAYS (CC-88-21)
Where claimant walked into a sign on a sidewalk the Court denied the claim as
there was no
negligence on the part of the respondent p. 143
BROWN VS. DIVISION OF HIGHWAYS (CC-82-279)
Claimant’s property was damaged by a slip from a State road and the Court made an
award as claimants established that measures taken by the respondent to rectify
an initial slide which caused excess water to flow onto claimant’s property p.
37
CSX TRANSPORTATION CO. VS. DIVISION OF HIGHWAYS (CC-84-180)
The Court denied a claim for damage to claimant’s property as the result of a
landslide as the claimant failed to establish that respondent was negligent in
its maintenance of State Route 42 at
the slide area p. 94
NEGLIGENCE
RANDY CLINE AND KAY CLINE VS. DIVISION OF HIGHWAYS (CC-87-69)
Claimants were involved in an accident alleged to be caused by debris left on
the road surface by employees of the respondent; however, the Court denied the
claim as there was no evidence of negligent maintenance of the road and the
Court will not speculate as to negligence on the part
of the respondent p.161
CALDWELL VS. DIVISION OF HIGHWAYS (CC-86-348)
Damage to a vehicle which occurred when a wind storm dislodged a portion of the
roof of claimant’s building and struck claimant’s automobile. The Court denied
the claim as there was
no negligence p. 9
W.Va.j REPORTS
STATE COURT OF CLAIMS 231
GOODWIN VS. DIVISION OF HIGHWAYS (CC-87-18)
Claimant’s tools were stolen from respondent’s truck but the Court determined
that the claimant left the keys in the truck. The Court found the claimant
negligent and denied his claim.
p.103
MCDOWELL VS. DIVISION OF HIGHWAYS (CC-87-242)
Respondent was negligent in its placement of barrels in a construction area;
however, the Court found that the claimant was also negligent as she was in a
position to observe the cut areas
in the highway p. 140
QUICK VS. DIVISION OF HIGHWAYS (CC-87-157)
Claimant’s vehicle was damaged when it struck rocks on the road. The Court
denied the claim as respondent is not negligent without a positive showing that
it knew or should have anticipated
damage in an unexplained rockfall p. 104
THOMAS TREADWAY VS. DIVISION OF HIGHWAYS (CC-87-417)
Although respondent may have been negligent in its maintenance of a steel plate
over a hole in the road, claimant was also aware of the hazardous condition and
his own negligence in driving at an excessive rate of speed was equal to or
greater than that of respondent p. 168
NOTICE
CUNNINGHAM VS. DIVISION OF HIGHWAYS (CC-87-229)
The claimant’s vehicle sustained damage when it struck an angle iron on the
highway, but the Court denied the claim as there was no notice to respondent
that an object was on the
highway p. 125
ANITA ANN ERWIN VS. DIVISION OF HIGHWAYS (CC-88-154)
Where the hazardous condition on the roadway (a piece of concrete which had
hooved up from the surface of Corridor G) appeared suddenly and respondent
acted promptly to warn the traveling public, the Court will not find negligence
on the part of the respondent p. 163
MINCH VS. DIVISION OF HIGHWAYS (CC-88-127)
The Court based an award upon constructive notice of a hole in the road which
was deep enough to expose reinforcing rods in the concrete as the hole could
not have developed overnight.
p.158
PRATT VS. DIVISION OF HIGHWAYS (CC-88-109)
The Court made an award to the claimant for damage to his vehicle which struck
a hole in the road as the Court held respondent liable for failure to repair a
very large hole which could not
have developed overnight p. 143
232
REPORTS STATE COURT OF CLAIMS [W.Va.
RODEHEAVER VS. DIVISION OF HIGHWAYS (CC-86-340)
Where respondent had actual notice of a defect in the road and failed to
adequately maintain the road, the Court found respondent negligent for the
damage to claimant’s vehicle. . . p. 77
SHAFFER VS. DIVISION OF HIGHWAYS (CC-87-186)
A claim for damage to a vehicle which struck an expansion joint was denied as
respondent did
not have actual or constructive notice of the defect in the road p.129
SPANGLER VS. DIVISION OF HIGHWAYS (CC-87-29)
Claimant’s vehicle came onto an area of high water on a highway and alleged
respondent was negligent in failing to place warning signs. The Court
determined that the claimant failed to establish that respondent had actual or
constructive notice of the high water on the
highway p. 119
PARKS AND RECREATION AREAS
BAILEY VS. DEPARTMENT OF NATURAL RESOURCES (CC-86-438)
Claimants vehicle was damaged when it struck a beam on a road in a national
park and the Court held that respondent was negligent. It was foreseeable that
an animal such as a bear or deer
might attempt to cross the road p. 50
PEDESTRIANS
BOGGAN VS. BOARD OF REGENTS (CC-87-474)
Where a pedestrian walked into a sharp pipe which was not on the sidewalk. The
Court denied
the claim as there was no notice of the defect p. 130
PRISONS AND PRISONERS
CONSOLIDATED GAS TRANS. CORP. VS. DEPARTMENT OF CORRECTIONS (CC-86-
262)
Claimant’s truck was stolen by three
juveniles housed at the Salem Industrial School, a facility of the respondent.
The Court denied the claim as the negligence of respondent was not the
proximate cause. Claimant was negligent in leaving the keys in the truck and
the gate to the park
unlocked p. 97
FARLEY VS. DIVISION OF CORRECTIONS (CC-77-6)
Claimant, an inmate and ward of the State, was being transported in a van with
other inmates, when an accident happened. Claimant claimed negligence on the
part of the operator of the van. The evidence established that there was no
negligence on the part of the respondent s employee
and the Court denied the claim p. 29
W.Va.1 REPORTS
STATE COURT OF CLAIMS 233
TIMOTHY PAUL HIVELY VS. DIVISION OF CORRECTIONS (CC-88-48)
Claimant was granted an award for eye glasses which were lost, stolen, or
destroyed at a facility of the respondent when he was transferred from the
State Penitentiary to a facility in Ohio
County p. 178
MATHEY VS. DIVISION OF CORRECTIONS (CC-87-9)
A claim for damage to claimants home and vehicle by escaped juveniles was
denied as the
claimant left keys in an accessible location outside of his home p. 141
MILLER VS. DIVISION OF CORRECTIONS (CC-84-218)
The Court made an award to the claimant who had received a back injury while
incarcerated at a facility of the respondent and claimant established that
employees were negligent in allowing an overflow of garbage on the floor of the
dining facility. Claimant fell when he slipped in the
area p. 45
CHRISTOPHER LEE UMBERGER VS. DEPARTMENT OF CORRECTIONS (CC-86-41 1)
An award was granted to claimant inmate for personal property which was lost or
stolen while
he was in a holding cell p. 160
REAL PROPERTY
MOORE VS. DIVISION OF HIGHWAYS (CC-86-450)
Claimant alleged damage to real property as a result of a lack of maintenance
of a bridge; however, the Court determined that there were many contributing
factors and negligence on the
part of the respondent was not established p. 23
ROCKFALLS
ESTEP VS. DIVISION OF HIGHWAYS (CC-86-359)
When an independent contractor is performing work on a State road, respondent
will not be held liable for negligence of the individual contractor where rocks
in the road caused damage to
claimant’s vehicle p. 10
RALPH W. PALMER VS. DIVISION OF fflGHWAYS (CC-88-137)
The Court reaffirmed its holding in previous claims that the unexpected falling
of rocks onto a highway without a positive showing that respondent knew or
should have known of a dangerous condition is insufficient to justify an award.
Claimant’s claim for damages to his vehicle which
struck a rock in the road was denied p. 166
234 REPORTS STATE
COURT OF CLAIMS [W.Va.
STATE AGENCY
ADKINS VS. DIVISION OF HIGHWAYS (CC-77-18)
Where the evidence established that respondent fulfilled its duty to maintain
the road at a slide area and placed warning paddles. The Court denied a
wrongful death action where a vehicle went over an embankment and struck an
exposed gas line p. 16
BROWN, ET AL. VS. DEPARTMENT OF EDUCATION (CC-87-136 to CC-87-144)
Claimant teacher aides sought relief through the grievance procedure for adjusted
salaries and it was determined that claimants were entitled to the adjustments.
The Court determined that claimants were entitled to the additional
compensation for a period of time not included in the grievance procedure;
however, there was no appropriation for the claims and the Court denied the
claims based upon the similarity to Airkem. Airkem Sales and Service. et al.
vs. Department of
Mental Health, 8 Ct. Cl. 180 (1971) p. 92
CAPON BRIDGE CO. AND SENIOR CENTER VS. G.O.C.I.D. (CC-87-400) See also,
GLENVILLE VS. G.O.C.I.D. (CC.-87-513)
Claimant had a contract under the Governors Community Partnership Grant Program
but the grant money was not forthcoming when the Treasury lacked sufficient
funds to satisfy the grant. The Court made an award for that portion of
the grant which claimant failed to receive in the
proper fiscal year p. 96
CLOWER VS. DIVISION OF HIGHWAYS (CC-86-146)
The Court denied a claim for damage to a vehicle which struck ruts in a road,
as the Court determined that respondent was not negligent in its maintenance of
the road p. 116
FORK RIDGE VS. STATh FIRE MARSHAL (CC-86-384)
The Court denied a claim for volunteer fire departments where the respondent
established that
the claimant had not timely filed reports required by statute p. 101
GLASER VS. DIVISION OF HIGHWAYS (CC-86-373)
Where the Court determined that claimants own actions were the proximate cause
of the accident, the Court disallowed damages to claimants vehicle when it
struck a vehicle at an
intersection p. 102
HUZZEY VS. DEPARTMENT OF MINES (CC-83-1 19)
Claimant afleged that he did not receive the proper salary while he served in
two positions for the same State Agency. The Court denied the claim as payment
of the additional salary was
discretionary with the agency p. 126
FRASER VS. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, AND JOE
HOLLAND CHEVROLET, INC. VS. DEPARTMENT OF HEALTH AND HUMAN
RESOURCES (CC-86-261 AND CC-86-344)
W.Va.1 REPORTS
STATE COURT OF CLAIMS 235
An automobile agency, owned a vehicle which was stolen by a minor who was a
ward of the respondent. This vehicle caused damage to the second claimant’s
property. The inmate was actually in custody of an independent contractor with
respondent. The Court found no showing of negligence on the part of the
respondent and denied the claims p. 30
LACY VS. DEPARTMENT OF F&A (CC-87-1 11)
The Court granted an award where the claimant purchased a vehicle from
respondent which
was determined to be defective at the time of purchase p. 21
LONG VS. STATE AUDITORS OFFICE (CC-88-135)
Where the claimant had a legal remedy through a statutory process the Court
lacked jurisdiction over the subject matter of the claim of property bought
from the Deputy Commissioner
of forfeited land p.135
SNODGRASS, ET AL. VS. DIVISION OF HIGHWAYS (CC-76-55)
The Court denied a claim even though OSHA regulations were violated by a
contractor engaged by the respondent to construct a bridge as the Court found
the respondent’s construction
was not the proximate cause of the accident p. 113
STOVER, ET AL. VS. DEPARTMENT OF LABOR (CC-86-354)
The Court determined that the wage bond statute requiring collateral for mine
employees failed to protect certain employees where the equipment for the wage
bond had a superior lean upon it.
The Court made an award for unpaid wages p. 85
THAXTON, ET AL. VS. DEPARTMENT OF HEALTH AND HUMAN SERVICES (CC-78-263)
Claimant s child was killed while he was in custody of the State and the State
placed the child with a grandparent. The evidence established that the child
requested to be placed with the grandmother but respondent was unaware of the
violent tendencies of an uncle living at the residence. As there was no breach
of duty on the part of the respondent, the Court demed the
claim p. 65
THOMAS, ET AL. VS. DEPARTMENT OF HEALTH (CC-87-521, and related claims)
The Court made an award for overtime compensation due respondents employees
pursuant
to the U.S. Department of Labor regulations p. 87
VAN VFD VS. STATE FIRE MARSHAL (CC-86-353)
The Court made an award for funds which the Treasurer did not allocate to the
claimant as necessary fire reports were not timely received. The claimant
established that it made a good faith
effort to comply with the proper statute p. 15
236
REPORTS STATE COURT OF CLAIMS [W.Va.
WEST HAMLIN VFD, INC. VS. STATE FIRE MARSHAL (CC-86-349)
The Court denied a claim to a volunteer fire department as the claimant had
failed to file
proper documents with the State Fire Marshal’s Office p. 12
WEST VIRGINIA SAFETY COUNCIL, INC. VS. DIVISION OF HIGHWAYS (CC-87-50)
The Court made an award for film which respondent failed to return to claimant
as part of a
lease agreement p. 26
STREETS AND HIGHWAYS
ADKINS VS. DIVISION OF HIGHWAYS (CC-86-218)
A claim for vehicular damage where negligence on the part of the respondent is
not established by the claimant will be denied by the Court. A portion of the
road had washed away but respondent established that it had placed warning
paddles for the traveling public p. 1
ALLEN VS. DIVISION OF HIGHWAYS (CC-87-83)
The Court denied a claim for damage to claimant’s vehicle where the claimant
was aware of the holes in the pavement, but claimant failed to establish actual
or constructive notice on the part
of the respondent p. 49
ANAWALT WESLEYAN CHURCH VS. DIVISION OF HIGHWAYS (CC-86-40l)
Respondent had not placed a clearance sign on a railroad underpass as this is
not mandatory; therefore, claimant’s action for damages to a truck which struck
the underpass is denied. p. 19
ASTORG MOTOR COMPANY VS. DIVISION OF HIGHWAYS (CC-86-184)
A claim for damage to a vehicle where the owner of the vehicle is not the named
claimant will
be denied by the Court p. 2
BAUER VS. DIVISION OF HIGHWAYS (CC-86-331)
Claimants’ vehicle sustained damage when it struck a large section of road but
respondent established that it had not been performing work. A utility or
independent contractor may have been doing work for which respondent is not
liable p. 8
CAPLAN VS. DIVISION OF HIGHWAYS (CC-86-155)
Damage to the claimant’s vehicle occurred when it struck a catch basin
which had deteriorated. The Court found that the catch basin was maintained in
the customary manner and no breach of
duty by respondent was shown p. 105
RANDY CLINE AND LEONA KAY CLINE VS. DIVISION OF HIGHWAYS (CC-87-69)
Claimants were involved in an accident alleged to be caused by debris left on
the road surface by employees of the respondent; however, the Court denied the
claim as there was no evidence of negligent maintenance of the road and the
Court will not speculate as to the negligence on the
part of the respondent p. 161
W.Va.j REPORTS
STATE COURT OF CLAIMS 237
CUNNINGHAM VS. DIVISION OF HIGHWAYS (CC-87-229)
Claimant’s vehicle sustained damage when it struck an angle iron on the
highway, but the Court denied the claim as there was no notice to respondent
that an object was on the
highway p. 125
DOSS VS. DIVISION OF HIGHWAYS (CC-88-98)
Claimant’s vehicle was damaged by a tar-like substance. The Court made an award
as the road surface did not have sufficient chips to protect vehicles from
splashing tar p. 148
ANITA ANN ERWIN VS. DIVISION OF HIGHWAYS (CC-88-154)
Where the hazardous condition on the roadway (a piece of concrete which had
hooved up from the surface of Corridor G) appeared suddenly and respondent
acted promptly to warn the traveling public, the Court will not find negligence
on the part of the respondent p. 163
FRIEND, ET AL. VS. DIVISION OF HIGHWAYS (CC-85-327)
Where respondent maintained a local service road by posting a warning sign for
the traveling public as to the character of the road. The Court denied a
wrongful death claim where the
decedent drove off of a narrow dirt road p. 111
HUFFMAN VS. DIVISION OF HIGHWAYS (CC-86-151)
A claim wherein respondent had repaired a defective condition in the road and
it suddenly reappeared due to rain. The Court denied the claim as the State is
neither an insurer nor a guarantor of the safety of the motorists on its
highways p. 6
HUNTER VS. DIVISION OF HIGHWAYS (CC-86-188)
A claimant must prove that respondent had actual or constructive notice of a
defect in the road which caused damage to a vehicle in order for the Court to
make an award p. 7
JIVIDEN VS. DIVISION OF HIGHWAYS (CC-86-452)
The Court denied a claim based upon high water at the location of claimant’s
accident as the claimant failed to prove respondent had actual or constructive
notice of the high water
problem p. 20
KNOTT, ET AL. VS. DIVISION OF HIGHWAYS (CC-85-351)
The Court made an award to claimant where his wife was fatally injured in an
accident caused by respondent s failure to properly maintain a drain ditch on
the side of a highway. Ice formed creating a hazardous condition on the road
for which respondent was negligent p. 54
KOUNS, ET AL. VS. DIVISION OF HIGHWAYS (CC-86-215)
Claimant alleged that her husband died in an accident which was caused when his
automobile struck ice adjacent to the berm of the road. The Court denied
liability as the evidence established that the decedent was traveling at an
excessive rate of speed for the condition on the road. p.57
238 REPORTS STATE
COURT OF CLAIMS [W.Va.
KUSHNER VS. DIVISION OF HIGHWAYS (CC-86-3I9)
Claimants vehicle sustained damage when it sank into gravel placed by the
respondent on a portion of the road. Respondent failed to warn the traveling
public of the hazardous condition and
the Court made an award p. 25
LIMING VS. DIVISION OF HIGHWAYS (CC-81-424)
Claimants vehicle struck a man hole cover causing injury to her. The Court made
an award as it determined that the man hole cover was defective and presented a
hazardous condition which
was known to the respondent p. 43
LUSK VS. DIVISION OF HIGHWAYS (CC-88-58)
Where the driver of the vehicle was operating a vehicle at an excessive rate of
speed for the conditions then and there existing. The Court denied a claim when
the vehicle was damaged after
sliding on the snow removal material p. 137
MARTIN VS. DIVISION OF HIGHWAYS (CC-86-304)
Claimant was denied an award for damage to her vehicle which struck a hole in
the road as
claimant failed to establish notice on the part of the respondent p. 23
MCMILLAN VS. DIVISION OF HIGHWAYS (CC-86-322)
Claimant alleged his motorcycle slid on gravel caused by respondent s repairs
to the road. The Court concluded that respondent did not have actual or
constructive notice of the hazard and
denied the claim p. 60
MICHAELSON, ET AL. VS. DIVISION OF HIGHWAYS (CC-85-16)
Claimants alleged a defective condition on the road causing a vehicular
accident but respondent had notice and reasonable time in which to correct the
defect. The Court will not base an award
on conjecture or speculation p. 61
MOTORISTS MUTUAL VS. DIVISION OF HIGHWAYS (CC-87407)
Claimant s vehicle was damaged when the road collapsed and his vehicle flipped
over the bank. The Court denied the claim as respondent was unaware that the
road was in imminent
danger of collapsing p.64
O’DONNELL VS. DEPARTMENT OF FINANCE (CC-82-248)
Claimant fell on a sidewalk but the Court disallowed the claim as there was no
negligence in
the maintenance of the sidewalk p. 138
PETTY VS. DIVISION OF HIGHWAYS (CC-86-393)
The Court made an award for damages to claimants lawn where snow removal
equipment
caused the damage p. 14
W.Va.] REPORTS
STATE COURT OF CLAIMS 239
PRATT VS. DIVISION OF HIGHWAYS (CC-88-109)
The Court made an award to claimant for damage to his vehicle which struck a
hole in the road as the Court held respondent liable for failure to repair a
very large hole which could not have
developed overnight p. 143
SOUTH VS. DIVISION OF HIGHWAYS (CC-87-160)
Claimant’s vehicle was damaged by a railroad spike on the road. The Court
determined that
respondent had no notice of the condition and denied the claim p. 108
SPANGLER VS. DIVISION OF HIGHWAYS (CC-87-29)
Claimant’s vehicle came onto an area of high water on a highway and alleged
respondent was negligent in failing to place warning signs. The Court
determined that the claimant failed to establish that respondent had actual or
constructive notice of the high water on the
highway p.119
SUZANNE STEINMAN VS. DIVISION OF HIGHWAYS (CC-87-717)
The Court denied a claim for damage to claimants vehicle which struck a hole at
the edge of the road surface as no evidence was presented that respondent had
notice of the defect in the
road p. 167
CHARLES R. WELCH, SR. AND PHYLLIS 3. WELCH VS. DIVISION OF HIGHWAYS
(CC88-96)
A claim for damage to a vehicle which occurred due to ice on the road surface
was denied by the Court which held that an isolated patch of ice on a highway
is generally insufficient to establish
negligence on the part of the respondent p. 164
WITHROW VS. DIVISION OF HIGHWAYS (CC-86-225)
Respondent failed to place warning signs or a barrier where a portion of
the pavement on a road was cut out of a work location. The Court determined
that respondent was
negligent p. 47
WRIGHT VS. DIVISION OF HIGHWAYS (CC-87-1 18)
Claimants vehicle was damaged when it struck a hole in the road. The Court held
that respondent failed to adequately maintain the highway as respondent was
aware of the defect on a
major highway p. 98
TAXES AND TAXATION
FAIRMONT VS. DIVISION OF HIGHWAYS (CC-86-238)
A municipal corporation furnished fire protection to respondent and respondent
failed to pay
the fire service fee. The Court made an award to the claimant p. 78
240 REPORTS STATE
COURT OF CLAIMS [W.Va.
TREES
BARKER. ET AL. VS. DIVISION OF HIGHWAYS (CC-87-115)
Claimants alleged that respondent performed a grading operation which caused a
tree to fall upon their house. The Court was unable to find negligence upon the
respondent as the record failed to establish respondent performed any grading
in the area p. 110
BROWNING VS. DIVISION OF HIGHWAYS (CC-87-506)
The Court denied a claim where the tree which caused damage to claimant’s
vehicle was not
established to be on the respondent’s right of way p. 131
ISON VS. DIVISION OF HIGHWAYS (CC-88-61)
Where respondent did not have actual or constructive notice that a tree was
blocking the road. The Court denied a claim for damage to a vehicle which
struck a tree p. 133
LAGOWSKI VS. DIVISION OF HIGHWAYS (CC-87-240)
The Court made an award for damage to the vehicle when a tree was blown onto
the vehicle and the Court found that the tree was close enough to the road to
present a hazard to the traveling
public p. 128
OTHER
EDENS VS. STATE OF WEST VIRGINIA (CC-87-218)
Claimant established that he was unjustly arrested and imprisoned and the Court
made an award which in its discretion fairly and reasonably compensated the
claimant under West Virginia
Code §14-2A-13a p. 146
GREGG VS. DEPARTMENT OF FINANCE AND ADMINISTRATION (CC-79-514)
Claimant sustained severe injuries while employed by an independent
contractor performing renovation work on the State Capitol Building. Claimant
alleged that respondent failed to provide a safe work place in accordance with
OSHA regulations. The Court held that this is a claim under the Workers’
Compensation Fund as deliberate intent was not established on the part of the
respondent p. 51