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West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): FALLING ROCKS AND ROCKS
Opinion Issued January 12, 2015
HOBERT D. DEPTA
VS.
DIVISION OF HIGHWAYS
(CC-14-0167)
     Claimant appeared pro se.
     Francis M. Curnutte III, Attorney at Law, for Respondent.
     PER CURIAM: Claimant, Hobert D. Depta, brought this action to recover damages which occurred when his 2004 Ford truck struck a large rock while traveling along Route 10 near Eaerling, Logan County. Route 10 is a public road maintained by Respondent. The Court is of the opinion to grant an award in this claim for the reasons more fully stated below.
      The facts giving rise to this claim occurred on January 11, 2014, at approximately 12:30 p.m. Claimant stated that while traveling along Route 10 he reach the top of a hill at which time his vehicle struck a rock in the travel portion of the roadway. Claimant testified that it was quite foggy during the date of the incident, and that as he approached the top of a hill, his vision was obstructed. Claimant testified that the stretch of highway has a reputation for frequent rock falls. Claimant states that Respondent should have had constructive notice of the situation. As a result of the incident, Claimant’s vehicle became airborne and sustained damages to the tires and rods in the amount of $7,000.00. Claimant carried liability insurance only on the date of this incident.
      Respondent argues that it had neither actual nor constructive notice of the condition present on along Route 10 on the date in question. Therefore, Respondent maintains that it cannot be held liable in this claim.
      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 least constructive notice of the rock along Route 10 on the date in question. Given the reputation in the community for frequent rock falls in the area, the Court finds that Respondent has a duty to limit the instances, or at the very least, warn motorists of the dangers and prevalence of such rock falls. The Court nevertheless finds that Claimant is not completely absent fault. The evidence suggests that Claimant was at least ten percent (10%) at fault for this incident. Therefore, an award is recommended; however, the award shall be reduced by 10% based on Claimant’s comparative fault.
      Based on the foregoing, the Court is of the opinion to, and does hereby, grant Claimant’s claim.
      Award $6,300.00.
     
Summary:
     


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