OPINION ISSUED JANUARY 19, 2001
KAREN J. SUTPHIN
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage sustained when
her vehicle struck a low berm while she was traveling westbound on
County Route 24, locally known as Pisgah road, in Princeton. At
this location, County Route 24 is maintained by respondent in
Mercer County. The Court is of the opinion to deny this claim for
the reasons more fully set forth below.
The incident giving rise to this claim occurred on July 4,
2000, at approximately 5:00 to 6:00 p.m. Claimant was traveling
westbound on County Route 24 in her 1995 Pontiac Grand Am at a
speed of about thirty-five to forty miles per hour. No other
traffic was present on the road. She travels this portion of road
on a regular basis and was last on the road earlier in the day. At
this location, County Route 24 is a two-lane road with double
yellow lines indicating the center of the road surface and white
lines indicating the edge of the pavement. The road is nineteen
feet wide. This portion of road is straight and level although it
is in between two curves. The edge of the pavement is about eight
inches higher than the berm area. As claimant was driving in this
straight stretch, she veered off the road and her vehicle went into
the low berm area. The impact burst the tire, bent the rim and
damaged the undercarriage of the vehicle. The sustained damage
exceeded the deductible feature of $500.00 in her motor vehicle
insurance policy. In accordance with the Court's decision in
Summerville et al. vs. Division of Highways, any recovery would be
limited to the amount of her deductible feature. See Id., 18 Ct.
Cl. 110 (1991).
The position of respondent is that it did not have notice of
the low berm on County Route 24 in Mercer County. According to
Crew Leader Supervisor Melvin Blankenship, there was a drop-off
from the edge of the road that proceeds into a ditch. Respondent
had conducted a paving project on this road in June 2000.
Respondent then tried to build up the berm area of the road after
the paving project. However, Mr. Blankenship testified that there
was no way to build up the berm area because the ditch line within
respondent's thirty foot right of way must abut against the paved
portion of the road in order to accommodate the residents in the
area who have driveways with drains beneath them. Mr. Blankenship
further testified that the problem would remain unless the private
landowners with property adjacent to the road chose to do something about it.
This Court has been very consistent in regard to berm claims.
When a motorist uses the berm of the road in a non-emergency
situation, that motorist takes the berm as the motorist finds it.
Sweda vs. Department of Highways, 13 Ct. Cl. 249 (1980).
In the present claim, the evidence established that respondent
had actual knowledge of the low berm on County Route 24 in Mercer
County. The Court is of the opinion that the low berm area
constituted a hazardous condition to the traveling public.
Notwithstanding this finding of negligence on the part of
respondent, the Court is also of the opinion that claimant was
negligent in the operation her vehicle. In a comparative
negligence jurisdiction such as West Virginia, the negligence of a
claimant can reduce or bar recovery of a claim. Therefore, the
Court finds that the negligence of claimant was equal to or greater
than the negligence on the part of respondent. Consequently, the
negligence of claimant is a complete bar to recovery in this claim.
In accordance with the findings of fact and conclusions of law
stated herein above, the Court is of the opinion to and does deny