| Volume Number: 30
Category(s): FALLING ROCKS AND ROCKS |
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| Opinion Issued August 19, 2014 | |
| RICHARD D. COLLINS | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-13-0444) | |
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Claimant appeared pro se. C. Brian Matko, Attorney at Law, for Respondent. |
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| PER CURIAM:
Claimant, Richard Collins, brought this action to recover damages which occurred when his 2002 Volvo V70 struck rocks in the roadway while traveling along Route 52 near Switchback, McDowell County. Route 52 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. The facts giving rise to this claim occurred on January 5, 2013, at approximately 9:40 a.m. The Claimant testified that while on a working sales trip in southern West Virginia he encountered a small hill along Route 52. At the crest of this hill, Claimant encountered rocks in the travel portion of the roadway, which Claimant maintains originated from a slip along the side of the road. Claimant claims that he had no way of seeing the rocks before he came upon them. Claimant states that there were no road signs present giving drivers warning of the potential for rock falls in the area. Route 52 is a two-lane United States route. It has painted edge lines and a yellow divider line. Claimant stated that road conditions were clear and dry on the date of the incident. Claimant’s vehicle was totaled as a result of its contact with the rocks. Claimant did not carry insurance on the date of the incident. Respondent argues that it had neither actual nor constructive notice of the condition present on along Route 52 on the date in question. However, Respondent’s witness, Andrew Thomas, Crew Supervisor in McDowell County, stated that this “pass” area is locally known for its frequent slips and rock falls. 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)). A party’s precise knowledge or state of mind concerning a situation often cannot be determined by direct evidence, but must instead be shown indirectly by circumstantial evidence. In the instant case, the Court is of the opinion that Respondent had, at the least, constructive notice of risk posed by rock slides in the area. The Claimant’s testimony, together with Respondent’s admission that this area is known for rock slides, and that there were no signs in place indicating to the traveling public that this is a known area for rock slides, leads the Court to conclude that Respondent was negligent. Thus, Claimant may make a recovery for the damage to his vehicle. Claimant did provide the Court with an invoice in the amount of $6,867.93, which amounts to the total value of his vehicle and the cost to tow the vehicle from the scene. It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $6,867.93. Award of $6,867.93. |
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| Summary: |
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