OPINION ISSUED JANUARY 19, 2001
NORMAN CROUSE AND LILLIE MAE CROUSE
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage sustained when
their son-in-law was driving their vehicle and it struck a rock.
He was traveling northbound on Route 10 between Cyclone and Davin.
At this location, Route 10 is maintained by respondent in Wyoming
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
28, 1999, at approximately 6:30 to 7:00 p.m. Claimants' son-in-law
Wiley Russell Martin was operating their 2000 Dodge Neon at a
speed of about forty-five to fifty miles per hour. Mr. Martin's
wife, Tammy Sue Martin, was seated in the front passenger seat.
Claimant Lillie Mae Crouse and her son, Curtis Crouse, were seated
in the back seats. No traffic was present on the road. At this
location, Route 10 is a paved, two-lane road. The road is marked
with double yellow lines indicating the center of the road surface
and white lines indicating the edges of the road surface. Mr.
Martin testified that he did not observe any "Falling Rock" signs
on the road. As Mr. Martin was driving the vehicle through a turn
and was coming out of the turn, he was confronted immediately by a
large rock in the travel portion of the road. The rock was located
about two feet from the white line on the edge of the road surface.
Mr. Martin was unable to maneuver the vehicle around the rock and
the vehicle struck the rock on the driver's side of the vehicle.
Afterwards, claimants' son moved the rock off of the travel portion
of the road. The impact with the rock broke the vehicle's
transmission and the vehicle had to be towed to a garage for
repairs. The sustained damage exceeded the deductible feature of
$500.00 in claimants' 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 their deductible feature. See Id., 18 Ct. Cl. 110 (1991).
The position of respondent is that it did not have notice of
a rock on Route 10 in Wyoming County. According to Assistant
Supervisor James David Cox, the area is not posted as a rockfall
area. Mr. Cox further testified that the area in question is not
a known rockfall area, but there are a few rocks which fall each
year. Prior to this incident, respondent had no records of a
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, a 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 Route 10 in Wyoming County.
While the Court is sympathetic to claimants' plight, the fact
remains that 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