OPINION ISSUED DECEMBER 20, 2000
JOANN FORESTER AND RICHARD C. FORESTER
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimants brought this action for vehicle damage sustained
when their son was driving their vehicle and he drove onto a
deteriorated berm on County Route 38, locally known as Campbell
Hill Road, in Moundsville. At this location, County Route 38 is
maintained by respondent in Marshall County. The Court is of the
opinion to make an award in this claim for the reasons more fully
set forth below.The incident giving rise to this claim occurred
on July 4, 2000, at approximately 3:00 to 5:00 p.m. Claimants'
son, Joshua Daniel Forester, was traveling on County Route 38 in
claimants' 1989 Jeep Cherokee at a speed of about twenty to
twenty-five miles per hour. Mr. Forester was proceeding from his
residence to John Marshall High School. Mr. Forester frequently
travels this road. Claimants were following behind their son in
another vehicle. At this location, County Route 38 is a narrow,
two-lane, asphalt road of secondary priority with a steep grade. It
is approximately sixteen to eighteen feet wide and it does not have
any centerline or edge lines. Moreover, there is no berm area.
Guardrail is located on one side of the road whereas on the other
side of the road there is a sloping embankment that is covered by
vegetation. As Mr. Forester proceeded downhill, he was confronted
by an oncoming pickup truck proceeding uphill. Mr. Forester
maneuvered the vehicle toward the edge of the road in order to
safely pass the truck. Suddenly, the vehicle began to skid and
sank about twenty inches into the vegetation in the berm area. The
vehicle then bottomed out after traveling a short distance in the
berm area. The impact burst the two passenger side tires and
damaged the underneath of the vehicle. Since the vehicle was
insured only under a liability motor vehicle insurance policy,
claimants were responsible for the sustained damage in the amount
The position of respondent is that it did not have notice of
the defective condition of the berm on County Route 38 in Marshall
County. According to County Administrator Ronald William Faulk,
the area in question is a known landslide area. During the 1980's,
a piling project was conducted in order to stabilize the area.
Respondent paved the road several years ago, but Mr. Faulk stated
that the berm had not been built up to the edge of the pavement.
After the incident, respondent placed almost one-half ton of gabion
stone on the berm. Mr. Faulk further testified that respondent did not have any records of complaints regarding this area within the
past twelve years.
This Court has been very consistent in regard to berm claims.
In Sweda vs. Department of Highways, this Court held:
"The berm or shoulder of a highway must be maintained in a
reasonably safe condition for use when the occasion requires, and
liability may ensue when a motorist is forced onto the berm in an
emergency or otherwise necessarily uses that berm of the highway."
Id., 13 Ct. Cl. 249 (1980) (citing 39 Am. Jur. 2d Highways,
Streets, and Bridges § 488).
When a motorist uses the berm of the road in an emergency
situation, that motorist may be entitled to recover damages if the
berm is not properly maintained by respondent. Meisenhelder vs.
Department of Highways, 18 Ct. Cl. 80 (1990).
In this claim, the evidence established that respondent had at
least constructive if not actual knowledge of the berm area of
County Route 38. The Court is of the opinion that the berm of the
road constituted a hazardous condition. Claimants' son should
have been able to rely on a safe berm when confronted by oncoming
traffic. Consequently, there is sufficient evidence of negligence
on the part of respondent by which claimants may recover their
In accordance with the findings of fact and conclusions of law
stated herein above, the Court is of the opinion to and does make
an award in this claim.
Award of $510.61.