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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 10, 2012
ROBERT E. DUVALL AND ELIZABETH C. DUVALL
VS.
DIVISION OF HIGHWAYS
(CC-10-0628)
     Claimants appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimants brought this action for vehicle damage which occurred while Mr. Duvall was driving their 2004 Ford F-350 Super Duty. Claimants’ trailer rolled over and struck their vehicle while entering their driveway located along County Route 55 near West Liberty, Ohio County. County Route 55 is a public road maintained by Respondent. The Court believes that Claimant should receive an award in this claim for reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 11:30 a.m. on September 26, 2010. County Route 55 is a two-lane road with painted white edge lines and a center line. Respondent contracted Lash Paving Incorporated to pave County Route 55 prior to this incident. After completion of the paving project, Claimants’ vehicle sustained damage when the trailer it was hauling flipped over while Mr. Duvall attempted to pull into his driveway. Claimants testified that the damage is due to an extremely steep grade leading from the highway to Claimants’ driveway. In fact, Claimants characterized the condition as a severe “drop-off”. Claimants stated that they measured the drop-off to be approximately fifteen inches. As a result, the Claimants’ vehicle sustained extensive damage to the trailer as well as the truck’s toolbox. The amount of damages totaled $4,493.66. Claimants’ vehicle had insurance, which requires a $250.00 deduction; therefore, any award to Claimant is limited to the amount of the deduction.
      The position of the Respondent is that it did not have actual or constructive notice that the roadway posed a risk at the time of the incident. Furthermore, Respondent’s witness maintains that the contractor is responsible.
      The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to hold Respondent liable for road defects of this type, Claimant must prove that Respondent had actual or constructive notice of the defect and a reasonable amount of time to take corrective action. Pritt v. Dep’t of Highways, 16 Ct. Cl. 8 (1985); Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986).
      In the instant case, the Court is of the opinion that Respondent had, at the least, constructive notice of the poor workmanship that lead to this incident. The unusually steep grade leading from the roadway to Claimants’ driveway leads the Court to conclude that Respondent was negligent. Thus, Claimants may make a recovery for the damage to their vehicle.
      It is the opinion of the Court of Claims that the Claimants should be awarded the sum of $250.00.
      Award of $250.00.
Summary:
     


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