| Volume Number: 30
Category(s): FALLING ROCKS AND ROCKS, STREETS AND HIGHWAYS |
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| Opinion Issued June 15, 2015 | |
| DAVID W. MCDANIEL | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-14-1592) | |
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Claimant appeared pro se. S. Anita Valentino, Attorney at Law, for respondent. |
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| PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 2001 Mercury Cougar was struck by a rock while traveling on the Montrose Drive entrance ramp to Interstate 64 in South Charleston, Kanawha County. Interstate 64 is a 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 on October 19, 2014, at approximately 8:00 p.m. Claimant was driving on the entrance ramp at a speed of approximately twenty miles per hour when a rock the size of a bowling ball fell onto his vehicle, breaking the windshield and causing the passenger side air bag to deploy. Claimant testified that it had rained for multiple days prior to the incident. Claimant further stated that he was familiar with this area of Interstate 64 and had never noticed rocks in the road. Claimant’s vehicle sustained damages in the amount of $2,439.50, including replacement of the windshield and air bag system. Claimant’s vehicle was covered by liability insurance only. The position of the Respondent is that it did not have actual or constructive notice of a rock fall at the site of Claimant’s incident for the date in question. Kevin T. Quinlan, a Division of Highways Claim Investigator, testified that the agency had not received any calls reporting a rock fall on that date, and had never had notice of previous rock falls in the area. Mr. Quinlan admitted that there were no signs warning motorists of potential rock falls near the site of the incident. 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 vs. Sims, 130 W.Va. 645; 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986). In the instant case, the Court is of the opinion that Respondent had, at least, constructive notice of rocks likely to fall at that point on Interstate 64. Although the Division of Highways had not received prior reports of rock falls in this area, the condition of the rock cliffs along the side of the road coupled with significant rain in the days preceding the incident were sufficient notice to Respondent that such an incident was possible. Further, there were no signs warning motorists of the potential for rock falls in this area. Thus, the Court is of the opinion that respondent is liable for the damages which proximately flow from its inadequate protection of the traveling public in this specific location of Interstate 64 in Kanawha County, and further, that respondent is liable for the damages to claimant’s vehicle in this claim; such damages, however, shall be limited to the amount necessary to replace Claimant’s windshield. In accordance with the findings of fact and conclusions of law as stated herein above, the Court is of the opinion to and does make an award to the claimant in this claim in the amount of $435.00. Award of $435.00. |
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| Summary: |
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