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West Virginia Court of Claims

Volume Number: 29
Category(s): FALLING ROCKS AND ROCKS
Opinion Issued February 14, 2013
TRISTAN MATHEWS
VS.
DIVISION OF HIGHWAYS
(CC-12-0073)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant, Tristan Mathews, brought this action for vehicle damage which occurred when his 2008 Chevrolet Malibu was struck by a series of small rocks while traveling along Interstate 79 near Clendenin, Kanawha County. Interstate 79 is a public road maintained by Respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 1:00 p.m. on September 20, 2011. Claimant testified that while he was driving to a job interview in Charleston his vehicle was suddenly struck by falling rocks near mile marker 22 in the southbound lane of Interstate 79. Claimant stated that he did not see the rocks fall and had no notice that there was any potential for the rocks to fall in the area. After Claimant pulled to the side of road to inspect the damage, employees of Respondent arrived to check on the Claimant. Respondent’s employees advised Claimant that they were in the area because they were notified of rock falls prior his incident. As a result of its contact with the rocks, Claimant’s vehicle sustained damage to its transmission and wheel assembly in the amount of $2,246.60. Claimant had only liability insurance at the time of the incident.
      The position of Respondent is that it did not have actual or constructive notice of the rock falls along Interstate 79 on the date of the incident. Respondent’s witness, Rick Light, testified that rock falls were common in the area of the incident and that Respondent has placed guardrails along the more dangerous areas of Interstate 79 to prevent the frequency of such incidents.
      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 the Respondent liable for 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. 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 rocks which struck the Claimant’s vehicle and that the rocks presented a hazard to the traveling public. Since there were numerous known rock falls along this stretch of road, and since Respondent has attempted to place guardrails in adjoining areas in order to prevent such occurrences, the Court finds that Respondent is liable for Claimant’s damage. Thus, Claimant may make a recovery for the damage to his vehicle.
      It is the opinion of the Court of Claims that Claimant should be awarded the sum of $2,246.60.
      Award of $2,246.60.
Summary:
     


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