OPINION ISSUED JANUARY 19, 2001
ROY J. MCDANIEL
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage sustained when
his vehicle went over an embankment while he was traveling in
inclement weather on County Route 1, near Bomont. At this
location, County Route 1 is maintained by respondent in Clay
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 December
24, 1999, at approximately 7:30 to 8:15 a.m. On the morning in
question, Mr. McDaniel was traveling on County Route 1 near Bomont
in his 1989 four-door Chevrolet Celebrity at a speed of about
twenty miles per hour. About three inches of snow and ice had
accumulated on the road surface and on the side of the road. Mr.
McDaniel frequently travels this portion of road. At this
location, County Route 1 is a curvy single lane, asphalt, second
priority road. The road does not have lines on the road surface or
guardrails. Unbeknownst to Mr. McDaniel, another traveler had a
mishap on the road and he was standing at the side of the road.
When Mr. McDaniel saw the individual on the side of the road, he
attempted to slow the speed of his vehicle. However, as he applied
the vehicle's brakes to avoid the individual, he lost control of
his vehicle and it slid off the road and over a thirty-five feet
embankment. The vehicle landed on its top in a creek and Mr.
McDaniel sustained minor personal injuries. Since Mr. McDaniel was
insured under a liability motor vehicle insurance policy only, he
was responsible for the sustained loss estimated in the amount of
$1,691.00.At the hearing, claimant asserted that the originals
of his receipts were destroyed in an unrelated fire. Copies of
those receipts were adduced on September 20, 2000, as post hearing
exhibits and establish claimant's loss in the amount of $1,261.16.
The position of respondent was that it did not have notice of
the condition of County Route 1 in Clay County. According to
Transportation Crew Supervisor I Larry Eugene Hubbard, respondent's
garage in Clay County has five trucks for snow removal and ice
control activities. Mr. Hubbard further stated that secondary
roads, such as County Route 1 are treated as soon as possible after
all of the primary roads have been treated.
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). Respondent may not be held liable for the lack
of guardrail on a highway. See Id. In claims of this nature, the
Court has consistently held that the State cannot be expected or
required to remove hazardous conditions from highways during the
winter months. Morris vs. Div. of Highways, 21 Ct. Cl. 117 (1996);
Treadway vs. Dept. of Highways, 16 Ct. Cl. 101 (1986). In the
present claim, the evidence failed to establish that respondent was
negligent in its maintenance of County Route 1 at the time of
claimant's accident described herein. While the Court is of the
opinion that claimant's incident was the result of snow and ice on
the road surface of County Route 1, that fact alone is insufficient
to establish negligence on the part of respondent. Claimant was
familiar with the road and should have been aware of potential
conditions on the road during the winter months. Consequently,
there is no evidence of negligence on the part of respondent upon
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