| Volume Number: 30
Category(s): DRAINS AND SEWERS |
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| Opinion Issued August 19, 2014 | |
| JUNIOR ROWE | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-11-0680) | |
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Claimant appeared pro se. C. Brian Matko, Attorney at Law, for Respondent. |
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| PER CURIAM:
Claimant, Junior Rowe, brought this action to recover for property damage to his residence in Paynesville, McDowell County. Claimant alleges that damages have occurred and are occurring as a result of negligent drainage maintenance originating from W. Va. Route 83 (hereinafter “Route 83") in Paynesville. Route 83 is a public road maintained by Respondent. The Court is of the opinion to deny an award in this claim for reasons more fully stated below. Claimant seeks damages against the Department of Highways alleging negligence resulting in specific damages to his dwelling. The facts upon which Claimant, who represented himself in this matter, relies for his claim primarily occurred on two specific heavy rain events, and after certain alleged modifications to Route 83 were made. Claimant alleges that a runoff of rainwater has destroyed his driveway. Claimant’s testimony was that in both rain instances his property was flooded from rain water originating from Keen Ridge Road, which is situated perpendicular to Route 83. Specifically, Claimant alleges that Respondent failed to prevent flooding of his property by its failure to maintain proper drainage and service on Route 83. Route 83 intersects with, and water flows from, Keen Ridge Road down onto Route 83. Claimant claims that there were two specific instances when major flooding occurred to the dwelling on his property. He further claims that since the water causing his damage traversed Keen Ridge Road and Route 83 and onto his property, such damage is the direct result of the Respondent’s failure to properly maintain and service Route 83. Claimant alleges damages to his property in the amount of $15,150.00, which is the estimate to repair and replace the foundation, basement wall, porch and certain heating and electrical equipment. Respondent defends this matter by stating that it is not guilty of negligence and that the only instances alleged by Claimant occurred during a “state of emergency” in Claimant’s immediate area as well as surrounding counties. Specifically, the first flood damage of which Claimant complains occurred in 2010 and the second in 2011. Respondent represented to the Court that in both of these years the Governor declared a “state of emergency” for McDowell County. However, Respondent has failed to provide the Court with exact dates of these alleged states of emergencies. Respondent also argues that Claimant placed his dwelling’s location (mobile home) directly in the path of the natural water drainage in the area of Claimant’s property. Claimant admitted on cross examination that he obtained no professional information or opinions prior to selecting his dwelling’s location. The Court conducted a view of the subject property and notes that the Claimant placed his mobile home dwelling at the base of a steep bank (approximately 60 degree incline) from which water naturally flows. This created that hazardous situation for the Claimant. The composition of the steep bank soil is sandstone, which appears to be rapidly deteriorating. While there is no question that Claimant’s situation requires attention and correction, his damages are not the result of any negligence of the Respondent. Claimant’s damage is more likely than not the result of Claimant placing his dwelling in the direct path of a natural water drainage area, and under abnormal circumstances flooding has occurred. The Court cannot engage in speculation and Claimant has the burden to plead and prove by a preponderance of the evidence that his damages were a direct and proximate result of negligent conduct by Respondent. In this matter, Claimant has not met his burden and the claim must be denied. See generally, Stanley v. Division of Highways, 19 Ct. Cl. 31 (1991); Lawson v. Department of Highways, 15 Ct. Cl. 169 (1984). Claimant further testified that Respondent, in response to his complaint of flooding on his property, placed an elevated berm on Route 83 next to his property, which according to Claimant had stopped any flooding of his property near the dwelling. However, Claimant testified that the placement of the berm has caused drainage and damage in the area of his driveway. Responsibility for properly controlling the flow of water from Route 83 across Claimant’s property falls upon the landowner. Claimant testified and acknowledges that he was unable to place a drain in the area of the driveway because a burial site he created on the property would be damaged by such construction. The Court having viewed the area believes that a drainage system could be constructed in such a manner as not to interfere or affect the burial site on Claimant’s property. Because of the extreme weather conditions causing the incidents alleged by Claimant, the inappropriate placement by the Claimant of the Claimant’s dwelling in a natural water drainage area, and the refusal of the Claimant to place ad rain on his driveway area, and the lack of any evidence of the Respondent’s negligence, the Claimant has failed to meet his burden of proof, and his claim must be denied. Based on the foregoing, the Court does hereby deny Claimant’s claim. Claim disallowed. |
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| Summary: |
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