|Volume Number: 30
Category(s): TREES AND TIMBER, BERMS
|Opinion Issued November 26, 2013|
|TYLER J. SHIPP|
|DIVISION OF HIGHWAYS|
Claimant appeared pro se.
Brian C. Matko, Attorney at Law, for Respondent.
| FORDHAM, JUDGE:
Claimant brought this action for vehicle damage which occurred when his 1993 Jeep Cherokee Sport struck a protruding stump while traveling along Georgetown Road near Beverly, Randolph County. Georgetown Road 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 2:15 p.m. on May 29, 2013. Claimant testified that while traveling home along Georgetown Road he noticed that a large stump was protruding from the shoulder of the roadway onto the travel portion of the roadway. Claimant stated that he could not avoid the stump because another vehicle was approaching from the opposite lane. Claimant recalled that the stump was not rooted when he struck it. Claimant maintains that the stump was rotted and appeared to become dislodged from the embankment before making contact with his vehicle. Georgetown Road is a two-lane road with painted edge lines and a center line. As a result of this incident, Claimant’s vehicle sustained a total loss. Claimant carried only liability insurance at the time of the incident.
Respondent’s witness, James Rossi, testified that this part of the highway had undergone contract cleanup work between May 12 and May 16, 2013 as a result of “Superstorm Sandy”. Claimant’s accident occurred on May 29, 2013. However, regarding the stump in question, he testified that it “very possibly” had rotted and fallen over by itself or in combination with the rain. Nevertheless, Respondent argues that it had no notice of the condition before the incident occurred.
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 condition of the embankment along this stretch of Georgetown Road. From the photographs entered as exhibits it is clear that there were still leaves and debris along the edge of the roadway, along this stretch of highway, even covering the white fog line. All of this leads the Court to believe that even though this road was not a high priority road in terms of maintenance, the Respondent had some notice of the hazardous condition of the roadway.
Claimant testified that he paid $2,000.00 when he purchased the vehicle, and that the previous owner had essentially sold it at a loss to him. The Court believes that to replace Claimant’s vehicle, the Kelly Blue Book value is $3,035.00. The Court further believes this is a fair and reasonable amount. Additionally, the Claimant incurred a towing bill of $75.00.
Based on the foregoing, the Court is of the opinion to make an award to Claimant in the amount of $3,110.00.
Award of $3,110.00.