OPINION ISSUED JANUARY 19, 2001
VINCENT W. BROOKS AND JOHNNA BROOKS
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimants brought this action for vehicle damage sustained
when their vehicle struck a cut-away portion of road on the edge of
County Route 67/1 in Beech Bottom. At this location, County Route
67/1 is maintained by respondent in Brooke County. The Court is of
the opinion to deny this claim for the reasons more fully set forth
The incident giving rise to this claim occurred on the evening
of March 16, 2000. Claimant Vincent W. Brooks was traveling on
County Route 67/1 in his and his wife's 1992 Mercury Topaz.
Claimant frequently travels this portion of road and was on the
road earlier in the day. At this location, County Route 67/1 is a
two lane asphalt road. On the day in question, respondent was
conducting a ditching project in the area in question. Claimant
maneuvered his vehicle onto the berm in order to pull into a local
grocery store which was at a higher elevation than the road. As
the vehicle crossed the berm into the store parking lot, it struck
a cut-away portion of the berm. Claimant testified that he did not
observe any warning signs on the road. The impact damaged the
exhaust system of the vehicle. The sustained damage was in the
amount of $92.17.
The position of respondent is that it was not negligent in the
maintenance of County Route 67/1. According to County
Administrator Sheldon Beauty, respondent was conducting a ditching
project in order to remedy a drainage problem. Respondent was
working on its right of way. Mr. Beauty testified that the
store-owner had been contacted but refused to allow respondent to
cut the slope of his driveway leading to his store. During the
project, respondent had flaggers present and barrels were placed
along the construction site.
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, claimants 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 this claim, the evidence failed to establish that respondent was negligent in its maintenance of County Route 67/1.
Respondent was prevented by the store-owner from completing
properly the drainage project. Under the circumstances, the Court
is of the opinion that respondent took adequate measures to warn
the traveling public of potential problems entering the store
driveway. While the Court is sympathetic with claimant Vincent W.
Brooks' situation, the fact remains that there is insufficient
evidence of negligence on the part of respondent upon which to base
In accordance with the finding of fact and conclusions of law
stated herein above, the Court is of the opinion to and does deny