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West Virginia Court of Claims

Volume Number: 30
Category(s): FALLING ROCKS AND ROCKS
Opinion Issued July 30, 2013
RICHARD LEWIS
VS.
DIVISION OF HIGHWAYS
(CC-12-0072)
     Claimant appeared pro se.
     Michael J. Folio, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant, Richard Lewis, brought this action to recover damages which occurred when his 2009 Chevrolet Trailblazer was struck by rocks along W. Va. Route 10 near Man, Logan County. W. Va. Route 10 is a public road maintained by Respondent. The Court is of the opinion to grant an award in this claim for reasons more fully stated below.
      Respondent has been completing construction along a new section of W. Va. Route 10 which is situated just above the old route. Claimant testified that while traveling along the old route, rocks were disturbed by the construction above and fell to the old route below. These rocks struck Claimant’s vehicle. The incident occurred at 4:50 p.m. on January 17, 2012, and the weather on the day in question was clear and dry. As a result of the incident, the westbound lane of W. Va. Route 10 was blocked and Claimant’s vehicle sustained damage to its body in the amount of $1,656.85. Claimant carried collision insurance with a $500.00 deductible amount.
      The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). Therefore, in order to hold Respondent liable for road defects of this type, Claimant must prove that Respondent had actual or constructive notice of the defect and a reasonable amount of time to take corrective action. Pritt v. Dep’t of Highways, 16 Ct. Cl. 8 (1985); Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986). “Actual notice” is based on direct evidence known by a person or entity while “constructive notice” is defined as "[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of . . .; notice presumed by law to have been acquired by a person and thus imputed to that person." Mace v. Ford Motor Co., 221 W. Va. 198, 653 S.E.2d 660 (2007) (citing Black’s Law Dictionary at 1090 (8th Ed. 2004)).
      In the instant case, the Court is of the opinion that Respondent had, at the least, constructive notice of a risk posed by the construction above the old route. Therefore, Respondent was negligent for failing to take appropriate measures to prevent rock falls. Thus, Claimant may make a recovery for the damage to his vehicle in the amount of his deductible.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $500.00.
      Award of $500.00.
Summary:
     


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