OPINION ISSUED JANUARY 19, 2001
BENJAMIN DALE HERSMAN
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage sustained when
his vehicle struck a rock while he was traveling southbound on U.
S. Route 219 near Ronceverte. At this location, U. S. Route 219 is
maintained by respondent in Greenbrier 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 October 11,
1999, at approximately 9:30 p.m. Claimant was traveling on U. S.
219 in his 1990 Ford Mustang at a speed of about fifty miles per
hour. He was proceeding from Fairlea to his residence in Organ
Cave. Claimant's girlfriend, Candy Hunter, was following him in
another vehicle from a distance of about three car lengths. At
this location, U. S. Route 219 is a primary, two-lane road with
double yellow lines indicating the center of the road surface and
white lines indicating the edges the pavement. A ditch is located
on the side of the road about six feet from a fifteen foot
embankment and a hillside about three hundred feet high. As
claimant drove his vehicle around a sharp turn in the road, he
observed a rock about thirty feet in front of his vehicle on the
road surface. Claimant tried to maneuver his vehicle to the side
of the road in order to avoid the rock, but the passenger side of
the vehicle struck the rock. Ms. Hunter was able to drive her
vehicle around the rock. Claimant testified that he did not
observe any "Falling Rock" signs along the road. About twenty
minutes before this incident, he had traveled the road in the
opposite direction and he did not observe any rocks on the road
surface at that time. The impact with the rock burst the front
passenger side tire, bent the rim, necessitated alignment of the
vehicle as well as damaging the passenger side of the vehicle.
Since claimant was insured only under a liability motor vehicle
insurance policy, he was responsible for the sustained damage in
the amount of $790.84.
The position of respondent is that it did not have notice of
a rock fall occurring on U. S. Route 219 on this date. According
to Crew Supervisor II Keith Hollinghead, this area is not known as
a rockfall area. In fact, prior to this incident respondent had
no records of any rock falls occurring in this particular area of
U.S. Route 219.
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, claimant 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). However, the Court has consistently held that the
unexplained presence of a rock on a road surface is insufficient to
justify an award. Mitchell vs. Division of Highways, 21 Ct. Cl. 91
In this claim, the evidence failed to establish that
respondent had not taken adequate measures to assure the safety of
the traveling public while traveling on U. S. Route 219 in
Greenbrier County. The fact that claimant had been on the road
twenty minutes before the incident and did not observe a rock in
the road indicates that respondent did not have notice of the rock
on the road. While the court is sympathetic to claimant's plight,
the fact remains that there is no evidence of negligence on the
part of respondent by which to base an award.
In accordance with the findings of fact and conclusions of law
stated herein above, the Court is of the opinion to and does deny