IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA



JERRY E. WORKMAN

VS.

DIVISION OF HIGHWAYS

(CC-02-151)



Claimant appeared pro se.

Xueyan Zhang, Attorney at Law, for respondent.



PER CURIAM:

Claimant brought this action for damage to his 1999 Mercury Cougar which occurred when he was traveling eastbound on Route 60 in Huntington, Wayne County, and his vehicle struck a jagged portion of the concrete median on the road. Respondent was responsible at all times herein for the maintenance of Route 60. The Court is of the opinion to make an award in this claim for the reasons set forth more fully below.
The incident giving rise to this claim occurred on February 22, 2002, at approximately 3:00 p.m. Claimant was traveling eastbound on Route 60 at approximately twenty miles per hour. At this location, Route 60 is a four lane divided highway. There are two lanes going in each direction and each double lane is approximately twenty-three feet wide. The lanes are divided at this location by a contoured concrete median approximately four to five inches high. There is a small portion of the median that was removed and paved over in order to allow traffic to be able to cross the median and reach a local business. Claimant was traveling from Ceredo to Chesapeake, Ohio. The weather was overcast but there was no precipitation and the road surface was dry. There was heavy traffic both in front of claimant and behind him. He testified that he was traveling in the right lane where there was a large tractor-trailer hauling a bulldozer on it in front of him. Claimant maneuvered his vehicle into the left lane to pass the tractor-trailer and as he did so he noticed that other vehicles doing the same thing were swerving to the left to avoid striking the bulldozer's blade which was sticking out into the travel portion of the road. Claimant stated that he had a limited amount of time to react and quickly maneuvered his vehicle to the left. When he did so, his two left tires struck the jagged edge of the concrete median. The impact bent both left side rims and burst both left side tires. He testified that there was a large square shaped metal plate that set at an angle in the center of the concrete median. He testified that the metal plate covers a manhole or drainage system but it is not properly constructed and maintained. According to the claimant, one end of the metal plate is resting on the pavement while the other end is several inches higher off the ground resting on the concrete median. Claimant estimates that there is an approximate eight to ten-inch drop between the concrete median and the lower end of the metal plate. Claimant testified that it appeared that the plate had been knocked out of position by a large truck and that had it been in the correct position that this incident would not have occurred. Claimant submitted a repair bill for two tires and an alignment in the amount of $165.95 and another repair bill for two wheels in the amount of $212.00. Claimant seeks a total of $381.95 in damages. Claimant does have comprehensive insurance coverage which would cover these damages. However, his deductible feature is $500.00 which clearly exceeds the amount of his damages.
Claimant asserts that respondent knew or should have known that the metal plate being out of position presented a hazardous condition to the traveling public.
It is respondent's position that it did not have notice about the metal plate and that it is not respondent's duty to maintain this portion of the median.
Geoffrey Adkins, County Storekeeper for respondent in Wayne County, testified that he is responsible for maintaining Route 60 at the location of this incident. Mr. Adkins testified that a portion of the concrete median at this location was taken out by respondent approximately ten years ago to create an area of access to a local business driveway. He also stated that there is a drop inlet near the same location and that it is supposed to be covered up with the steel plate at issue in this claim. According to Mr. Adkins, the steel plate is normally bolted down but it has been knocked loose most likely by a large truck and that is the reason it was at an angle when claimant encountered it. Mr. Adkins testified that respondent has not received any complaints regarding the median in the past ten years nor was respondent aware that the steel plate had been knocked loose. Further, he testified that respondent does not maintain the center lane for travel purposes. He stated that it is not a turn lane or a lane for vehicular traffic. Instead, he stated that it is present to keep the lanes of traffic away from each other. However, Mr. Adkins also stated that the steel plate was not in its normal position on the date of this incident. He stated that the plate was "ajar" probably due to an impact from a truck. He also stated that it appeared that the bolts were missing. In addition, Mr. Adkins testified that the steel plate was not designed to have any safe guard or protection around it to keep traffic from striking it.
It is a well established principle that the State is neither an insurer nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). For the respondent to be held liable for damage caused by a road defect, it must have had either actual or constructive notice of the defect and a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986).
In the present claim, the Court is of the opinion that respondent had at least constructive if not actual notice that the steel plate was ajar and out of its intended position. Given the fact that this is a heavily traveled road, and that the location of this incident is within the City of Huntington, leads the Court to conclude that respondent knew or should have known that the condition existed. Further, the steel plate being out of position created a hazardous condition for claimant who was forced to maneuver his vehicle slightly onto the median due to an adjacent vehicle with a wide load. It was reasonable for claimant to rely upon the safety of the median under these circumstances. Therefore, the Court is of the opinion that respondent was negligent in this claim and that its negligence was the proximate cause of claimant's damages.
Accordingly, the Court is of the opinion to and does hereby make an award in this claim in the amount of $381.95.
Award of $381.95.