OPINION ISSUED MAY 31, 2002
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
LEE B. SIPPLE AND BRENDA G. SIPPLE
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimants brought this action for personal injuries and damage
to claimant Lee B. Sipple's vehicle which occurred when claimant
Brenda G. Sipple was operating her husband's vehicle on County
Route 8 in Mingo County, and Mrs. Sipple was forced to drive onto
the berm of the road to avoid an oncoming coal truck. When she
attempted to re-enter the roadway from the berm, she lost control
of the vehicle which then crossed both lanes of travel, went over
an embankment, and collided with some trees. Respondent was
responsible at all times for the maintenance of County Route 8.
The Court is of the opinion to make an award in this claim for the
reasons set forth below.
The incident giving rise to this claim occurred on March 20,
2000, between 10:00 a.m. and 11:00 a.m. Claimant Brenda G. Sipple
was driving her husband's 1988 Mercury Cougar and her husband was
with her in the front passenger seat. They were traveling south on
County Route 8 on their way to Wal-Mart to do some shopping. The
weather was cool and damp. It had rained earlier in the morning
but it had stopped by the time the claimants were traveling. The
road surface was damp but not saturated. County Route 8 at this
location is a narrow, two-lane road with double yellow lines.
There are no white lines on the edges of the road. The paved
portion of the road is approximately 17 feet wide. From the center
line to the edge of the pavement on the lane in which claimants
were traveling is approximately eight (8) feet in width. Mrs.
Sipple stated that she was traveling at approximately thirty to thirty-five miles per hour through a gentle left curve and she was
approaching a more severe left curve, when suddenly she was faced
with an oncoming coal truck. The coal truck was across the center
line and well into her lane of travel. She had to maneuver the
vehicle onto the berm of the road to avoid a head-on collision.
Both right side wheels were on the berm. Once the coal truck
passed, she slowed the vehicle down and attempted to maneuver it
back onto the road. However, both claimants testified that the
right rear wheel would not pull up onto the pavement and when she
attempted to maneuver the vehicle onto the road it suddenly shot
left across the road and went over the embankment. The vehicle
struck a tree and stopped. It then began smoking. Fortunately,
both claimants were able to get out of the vehicle safely.
Claimants went to Williamson Memorial Hospital where they were
treated and released. Mr. Sipple had a large cut on his forehead
which required seven stitches. Mrs. Sipple also suffered
significant bruising to her leg and stomach as well as a lacerated
lip. Mrs. Sipple has had some back pain as a result of this
incident and has been treated by a chiropractor. The 1988 Mercury
Cougar which was titled in Mr. Sipple's name only was totaled as a
result of this incident. The claimants submitted into evidence the
NADA value of the vehicle which had an average retail value of
It is the claimants' contention that the respondent was
negligent in its maintenance of the road at the location of this
incident and that this negligence created a hazardous condition
that was the proximate cause of the claimants' damages.
It is respondent's position that it did not have notice of the
condition at issue nor did it have an adequate amount of time and
resources to make the needed repairs. Respondent also asserts that
Mrs. Sipple was negligent in the operation of her vehicle which was
the proximate cause of the accident.
Mrs. Sipple testified that the edge of the road was not only
jagged but very deep compared to the berm and that when she
attempted to maneuver the vehicle back onto the road the back right
wheel was off the ground. She stated that she believes that this
is what caused the vehicle to shoot across the road and over the
embankment. Photographs submitted into evidence by the claimants
demonstrate that County Route 8 at this location is narrow. The
photographs also indicate that the right edge of the road is in
very poor condition. The evidence demonstrates that the pavement is
eroded along the right edge of the road where Mrs. Sipple was
forced to maneuver her vehicle due to the coal truck.
Mr. Sipple testified that he and Mr. Ernest Lockhart
photographed and measured the depth of the edge of the pavement
where the vehicle was forced to the berm. The depth between the
top portion of the pavement and the berm at this location is
approximately twelve inches. Mr. Sipple also testified that he
believed the right rear tire was in the air due to the jagged and
deep drop off and that once Mrs. Sipple maneuvered the vehicle back onto the pavement the back right tire caught something and caused
her to lose control. He also testified that Mrs. Sipple slowed
down adequately, but she was not close to being completely stopped
when she attempted to maneuver the vehicle back onto the highway.
Earnest R. Lockhart, testified that he arrived at the scene of
this incident shortly after it had occurred. He lives in the
vicinity of the incident and is familiar with County Route 8. He
stated that he personally spoke to someone with the respondent
regarding the condition of County Route 8 prior to the incident at
issue. He testified that he spoke to Norman D. Stepp who was
employed by the respondent on numerous occasions regarding the
condition of County Route 8 in general. He stated that they spoke
about the poor condition of County Route 8 and the problems that
the coal trucks were causing. However, the conversations were
regarding a large section of County Route 8, not just the location
of this incident.
Norman D. Stepp, a crew leader for the maintenance division
for the respondent at the Gilbert substation in Mingo County,
testified that he had received complaints from numerous individuals
regarding the portion of County route 8 where this incident
occurred. He stated that the road has been damaged, especially the
shoulders, by the large volume of heavy coal trucks that use it.
According to Mr. Stepp, the road was built in approximately 1930
and it was not designed for heavy coal trucks. He explained that
coal trucks have been using the road heavily for approximately six
years. He testified that the coal trucks are doing significant
damage especially on the shoulders of the road where they "rut" the
shoulders out and cause large drop-offs between the pavement and
the berm. Mr. Stepp also testified that respondent is responsible
for maintaining the berm of the highways including those on County
Route 8. He added that the berm of a highway is to be used by the
public. In his opinion, the berm provides a safety net in the
event that a driver has to use it in an emergency and to avoid
Cecil W. Collins, a Maintenance Supervisor-Transportation
Worker II for the respondent in Mingo County, testified that the
coal trucks have made County Route 8 a dangerous road at times. He
stated that there are many locations along County Route 8 that
vehicles are forced to yield to the coal trucks and use the berm in
order to avoid a collision. He also stated that County Route 8 is
a small secondary road that was designed for regular vehicular
traffic and that it is adequate for that purpose, but it is too
narrow in places to accommodate coal trucks. According to Mr.
Collins, what has in essence happened is that the burden of
avoiding coal truck collisions on County Route 8 has shifted to the
individual driver for whom the road was intended. Mr. Collins
testified that the road is not adequate to handle coal truck
traffic as well as regular vehicles and he agrees with the
claimants that the road can use some improvements. However, he
testified that given the confines of maintaining the primary routes including U.S. Route 52, as well as other roads in the area,
with a limited number of crew, he believes that the respondent has
done an adequate job in maintaining County Route 8. Mr. Collins
admitted that the depth of the berm away from the road surface at
the location of this incident is a safety factor. According to Mr.
Collins, this berm is not in the condition that it should be.
However, Mr. Collins pointed out in his testimony that there are
many competing interests at a given time for the respondent to
contend with especially during the winter months when the crews are
under snow removal and ice control. These competing interests
based on the time of year as well as weather factors must be taken
into consideration by the respondent. Therefore, according to Mr.
Collins the respondent did the best job it could under these
Earl D. Bevins, the Assistant District Engineer in District
Two located in Huntington which includes Mingo County, testified
that he believes that the respondent is doing a credible job given
the circumstances which it confronts in Mingo County. There are
numerous factors that have to be taken into consideration in
determining what maintenance work must or can be done. These
factors include the road priority, the weather, available personnel
and financial issues. Given these considerations, Mr. Bevins
testified that the respondent did the best it could under these
It is a well established principle of law that the State is
neither an insurer nor a guarantor of the safety of motorists on
its roads and highways. Adkins v. Sims, 46 S.E.2d 811 (W.Va.1947).
To hold the respondent liable, the claimant must establish by a
preponderance of the evidence that the respondent had actual or
constructive notice of the defect in question and a reasonable
amount of time to take corrective action. Chapman v. Dept. of
Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct.
Cl. 8 (1985). The State owes a duty of reasonable care and
diligence in the maintenance of a highway. Parsons v. State Road
Comm'n., 8 Ct. Cl. 35 (1969). The respondent also has a duty to
maintain the berm of a highway in a reasonably safe condition for
use when the occasion requires. Compton v. Div. of Highways 21 Ct.
Cl. 18 (1995). Liability may ensue when a motorist is forced onto
the berm in an emergency or otherwise necessarily uses the berm of
the highway and it fails. Sweda v. Dept. of Highways, 13 Ct. Cl.
In this claim, the evidence established that County Route 8 at
the location of this incident presented a hazardous condition to
the traveling public. The evidence also established that the
respondent had actual notice of this condition and a reasonable
amount of time to take corrective action. Testimony also
established that the berm at the location of this incident has to
be used often by the traveling public to avoid colliding with
oncoming coal trucks and that this berm is in a very poor
condition. The Court is aware of the fact that the respondent is faced with competing interests, especially during the winter months
to maintain the State's roads and highways and that County Route 8
was not built for heavy coal trucks. However, the Court is of the
opinion that the respondent failed adequately to maintain the road
and the berm at this location and that this failure was the
proximate cause the accident herein. However, the Court is also of
the opinion that Mrs. Sipple failed to maintain control of the
vehicle and that her negligence is equal to or greater than the
respondent's. Therefore, based upon the rule of comparative
negligence no award is granted to Mrs. Sipple in this claim.
However, the Court is of the opinion that claimant Lee B. Sipple
may recover for the loss of his vehicle in the amount of $2,300.00,
the injuries to his head, and for his pain and suffering in the
amount of $700.00 for a total award of $3,000.00.
In accordance with the finding of facts and conclusions of law
as stated herein above, the Court is the opinion to and does make
an award to claimant Lee B. Sipple of $3,000.00.
Award of $3,000.00 to Lee B. Sipple.