OPINION ISSUED AUGUST 15, 2002




CC-01-138

CC-01-138
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


ROY L. HOLSTEIN and SHEILA HOLSTEIN

VS.

DIVISION OF HIGHWAYS

(CC-01-160)



Claimant appeared pro se.

Xueyan Zhang, Attorney at Law, for respondent.


PER CURIAM:

Claimants brought this action for damage to their 1993 Volvo Station-Wagon which occurred when claimant Sheila Holstein was operating their vehicle on Route 114 in Pinch, Kanawha County, and the vehicle struck a large hole in the road. This portion of Route 114 is maintained at all times herein by respondent in Kanawha County. The Court is of the opinion to make an award in this claim for the reasons stated more fully below.
The incident giving rise to this claim occurred on April 4, 2001, at approximately 4:45 p.m. The claimant Sheila Holstein was driving a 1993 Volvo Station-Wagon northbound on Route 114, also called Indian Creek Road. She was on her way home with approximately 350 pounds of groceries in the car that she had just purchased for the local food pantry that several churches in the area support. The weather was cold and cloudy with a few snow flurries, however the road surface was not slick. Mrs. Holstein described the traffic as very heavy that day in both directions. She was traveling through a straight stretch near Seneca Hills Subdivision in Pinch, with another vehicle directly in front of her. Due to the vehicle being in front of her, she was unable to see the large hole in front of her in time enough to avoid striking it with her vehicle. Mrs. Holstein estimates that she was approximately fifteen feet from the hole before she saw it. Given such a short time to react, and the lack of an adequate berm to maneuver onto, she had no alternative but to drive into the hole. The impact was hard, but initially the claimants did not know the significance of the damage. Approximately four days later, Mrs. Holstein was driving the same vehicle when she was alerted by another motorist that she had a flat tire. Claimants went to have this tire replaced and at this time the mechanics discovered that there was additional damage. One tire was destroyed, the right front wheel was cracked and bent, and the right rear wheel was bent. The total cost of the replacements and repairs for this damage was $965.17. However, claimants had comprehensive insurance coverage that covered this loss with a deductible of $250.00. Therefore, claimants are limited to a recovery in the amount of their deductible.
Claimants contend that respondent knew or should have known of such a large hole in the road on Route 114 and that it should have taken adequate measures to repair this hole.
Mrs. Holstein testified that Route 114 at this location is a two-lane, blacktop road with double yellow lines and white lines on the edges. She also testified that she was traveling the speed limit of forty miles-per-hour. According to Mrs. Holstein, there are numerous holes in the road along this portion of Route 114. She described this hole as being between one and a half to two feet from the white edge line within the lane of travel. Although she could not state how deep it was, she did state that it was at least one foot wide. Mrs. Holstein also stated that at this location there is a ditch and a rock cliff on the right side of the road and on the left side there is a steep drop off over a hill.
The law is well established in this State that the respondent is neither an insurer nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 811 (W.Va. 1947). To hold respondent liable, the claimant must establish by a preponderance of the evidence that the respondent had actual or constructive notice of the road defect at issue and a reasonable amount of time to make adequate repairs. Pritt v. Dept. of Highways, 16 Ct.Cl. (1985).
In the present claim, claimants established by a preponderance of the evidence that the respondent had at least constructive, if not actual, notice of this hole. The size of this hole, its location into the travel portion of the road, and the fact that this incident occurred in April leads the Court to conclude that the hole had been in existence for a long enough period of time that adequate repairs should have been made. Thus, the Court finds that respondent was negligent in this claim.
Accordingly, the Court makes an award to claimants in the amount of $250.00
Award of $250.00.



CC-01-160
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


ROBERT W. COLEMAN

VS.

DIVISION OF HIGHWAYS

(CC-01-163)



Claimant appeared pro se.

Xueyan Zhang, Attorney at Law, for respondent.


PER CURIAM:

Claimant brought this action for damage to his 1999 Ford Taurus which occurred when he was operating his vehicle on County Route 20 in Kanawha County and his vehicle struck a large hole in the road. Respondent was responsible at all times for the maintenance of County Route 20. The Court is of the opinion to make an award in this claim for the reasons stated more fully below.
The incident giving rise to this claim occurred on April 15, 2001, at 10:00 a.m. Claimant Robert Coleman was traveling eastbound on County Route 20, also known as Kanawha Forest Road. The weather was clear and the road surface was in good condition. Mr. Coleman was one and four tenths of a mile east of Connell Road proceeding to Kanawha Forest. He had just driven out of a curve when, suddenly and without warning, his vehicle struck a large hole on the right side of his lane. It was a hard impact which jolted the claimant and immediately burst his front passenger side tire. Mr. Coleman testified that the hole was five feet long, three feet wide, and approximately eight inches deep. It was located within the travel portion of the road and extended to the very edge of the road. He also testified that County Route 20 at this location is a narrow, two-lane road. Although the traffic was very light at this time, he did approach an oncoming vehicle near the location of this incident. He stated that he travels this road once or twice a year, but that he had not done so in the past year prior to this incident. He also stated that he did not see the hole prior to the impact and that it was full of water which made it more difficult for him to notice. As a result of this incident, claimant had to purchase two new passenger side tires and rims. The vehicle also had to have a four wheel alignment. The total cost of these repairs was $857.70. However, claimant had comprehensive insurance coverage that covered these expenses so he may only recover $200.00 which is the deductible amount of his insurance policy.
Claimant contends that respondent knew or should have known of such a large hole in the road and that it should have taken adequate measures to correct it. Its failure to do so was the proximate cause of claimant's damages. Claimant introduced photographs at the hearing of this matter demonstrating that this hole was large in length and width, and it was significantly deep. Some of the photographs depicted the hole extending well into the travel portion of the road. Furthermore, the photographs, as well as Mr. Coleman's testimony, indicate that this hole was nearly full of water, which could make it difficult for drivers of vehicles to observe the size and significance of this hole until right upon it.
It is respondent's position that it was not aware of the hole until after this incident and that it was not negligent in its maintenance of County Route 20.
Chet Burgess testified on behalf of respondent. Mr. Burgess testified that he is the maintenance supervisor for respondent at the St. Albans Headquarters, in Kanawha County. He is responsible for the maintenance of County Route 20 including the location of this incident. He stated that he is familiar with the portion of road at issue. Mr. Burgess described County Route 20 as a secondary, two-lane, blacktop highway with a center line but no edge lines. The road is eighteen feet wide with each lane being approximately nine feet wide. Mr. Burgess testified that he did not have prior knowledge of this hole. He also stated that his office receives and records public complaints regarding County Route 20. He searched the records and found no complaints regarding a hole at or near the location of this incident. In addition to responding to public complaints, he stated that normal routine maintenance for County Route 20 consists of one inspection every month or two. Finally, Mr. Burgess testified that this hole appeared to be a fairly recent hole that probably developed during the winter months prior to this incident.
The law is well established in this State that respondent is neither an insurer nor a guarantor of the safety of motorists on its roads. Adkins v. Sims, 46 S.E.2d 811 (W.Va. 1947). To hold respondent liable, claimant must prove by a preponderance of the evidence that the respondent had actual or constructive notice of the defect in question and a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).
In the present claim, the size of the hole and the fact that it extended well into the travel portion of the road leads the Court to conclude that it had been in existence for a long enough period of time for respondent to have been aware of its existence and to have made adequate repairs. Furthermore, this incident occurred in the middle of April. Even if the hole developed during the winter, respondent had adequate time to notice it and make the necessary repairs. Thus, the Court finds that respondent was negligent in the maintenance of County Route 20 at this location and that this negligence was the proximate cause of the claimant's damages.
Accordingly, the Court is of the opinion to and does make an award to the claimant in the amount of $200.00.
Award of $200.00.


CC-01-163
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


MARY ALICE HAMBY

VS.

DIVISION OF HIGHWAYS

(CC-01-192)



Claimant appeared pro se.

Andrew F. Tarr, Attorney at Law, for respondent.


PER CURIAM:

Claimant brought this action for damage to her 1989 Chevrolet S-10 pick-up truck which occurred when she was operating her vehicle on Route 49 near Merrimac, Mingo County, and a tree fell and struck her vehicle. Respondent was responsible at all times for the maintenance of this portion of Route 49 in Mingo County. The Court is of the opinion to make an award in this claim for the reasons stated more fully below.
The incident giving rise to this claim occurred on April 26, 2001, at approximately 8:50 a.m. The weather was clear and the road surface was dry and in good condition. Claimant Mary Hamby was on her way to school at Southern West Virginia Community College. Ms. Hamby was traveling northbound on Route 49 and was approximately three hundred feet from her home when suddenly and without warning a tree fell from the hillside to her right and struck her vehicle. She heard something hit the top of her truck. She accelerated in an attempt to avoid it, but the tree still struck the hood and cracked the windshield. Route 49 is a two-lane, blacktop highway with a center line and two white edge lines. It is considered a priority one route. However, Ms. Hamby described the highway at this particular location as "falling in". She testified that the southbound lane had been falling in for a significant period of time. Respondent had placed some beams or piling to stabilize the road approximately one year prior to this incident. When respondent placed the beams and piling, it had to close the southbound lane. To allow the continual flow of traffic, respondent had made a cut into the hillside on the northbound side of the road to extend that lane. Ms. Hamby testified that after the lane widening construction, the tree which struck her vehicle was growing only two or three feet from the road. Ms. Hamby also stated that the tree was rotten because it broke into many little pieces after striking the truck. Her vehicle sustained damages as a result of this incident.
Claimant described the damages that the tree did to her vehicle including damage to the hood which she replaced. The front and back fenders also were replaced. In addition, the windshield was damaged and needs to be replaced, as does the passenger side mirror and the sun visor. Claimant submitted three different invoices from various body shops for the costs to repair her vehicle. The estimates were in the amounts as follows: $1,594.76, $1,881.89, and $1,472.75. Claimant did not have comprehensive insurance coverage to cover any of her losses. Therefore, she made the repairs necessary to receive an inspection sticker so as to be able to drive the vehicle again. Replacing the hood and two fenders cost $500.00. However, she still needs to replace the windshield and the mirror which will cost approximately $350.00. The vehicle was a gift to Ms. Hamby. At the time of this incident, she had owned the truck for three years. She believes the person who purchased it for her paid approximately $2,000.00 for the truck.
Claimant asserts that respondent was negligent in its maintenance of Route 49 at the location of this incident and that this negligence created a hazardous condition for the traveling public.
To substantiate her position, claimant introduced numerous photographs of parts of the tree which struck her vehicle. One photograph depicted a fairly large part of a dead tree lying on the side of the road. Another photograph depicted a smaller piece of wood which appeared to have broken off of the main tree. The photographs support claimant's testimony that the tree was dead when it struck her vehicle. It appears that the tree had been dead for a significant period of time. In addition, claimant also introduced into evidence photographs showing that the hillside on the side of the road from where the tree fell was slipping in and that the root system of the trees was being disturbed. This evidence also supports claimant's testimony that someone had cut into the hillside.
It is respondent's position that it did not have notice of any tree hazards or potential tree hazards at the location of this incident and that it adequately maintained Route 49 at the location at issue.
Bill Parsley, an equipment two operator for the respondent in Mingo County, testified that he is responsible for operating large trucks, various heavy equipment, and for cutting brush along the highways including Route 49 at the location at issue. He is also familiar with the facts of this incident. He agrees with the claimant that there is a bad place in the road where the tree fell. He stated that personnel from one of the other departments had placed some "piling" which caused some problems with the road at that location. On the date of this incident, Mr. Parsley and his crew were cutting weeds and brush along Route 49. However, they did not cut any brush or otherwise work at the location where this incident occurred, but Mr. Parsley did drive by the location between 10:00 and 10:30 a.m. on the date of the incident. He testified that he did not see any trees at the location of the incident that were near the road that concerned him. In addition, he testified that neither he nor his crew noticed any trees that presented a potential risk of falling onto the highway on the date of the incident. Furthermore, he had traveled this portion of Route 49 prior to this incident and he had worked on it as well and he did not notice any potential risks regarding tree falls. Finally, he stated that he had not received any complaints regarding tree falls or potential tree falls at this location prior to this incident.
It is a well established principle of law that the State is neither an insurer nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 811 (W.Va.1947). To hold respondent liable, the claimant must establish by a preponderance of the evidence that the respondent had actual or constructive notice of the defect in question and a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). In cases involving falling trees or tree limbs, the Court has held that respondent is liable for dangerous trees or tree limbs on its property or right-of-ways. The general rule this Court has adopted is that if a tree is dead and poses an apparent risk, then respondent may be held liable. Wiles v. Div. of Highways, 22 Ct. Cl. 170 (1999).
In the present claim, the Court is of the opinion that respondent had notice of the hazard presented by the tree in question and had a reasonable amount of time to take corrective action. The evidence adduced at the hearing established that the tree was dead and that it was located well within the respondent's right-of-way. Further, the evidence also established that respondent had done some construction work on the road and in doing so made a cut into the hillside and weakened the soil and root system of this tree. This activity created a hazard to the traveling public for potential tree falls.
Thus, the Court finds that respondent was negligent in this claim and that this negligence was the proximate cause of claimant's damages. Given the fact that the estimates submitted to the Court are higher than the value of the vehicle at the time of this incident, the Court will grant an award based upon the difference between the market value of the truck before the incident and the value of the truck after the incident which the Court has determined as being $250.00. Claimant also may recover the $500.00 she spent on existing repairs plus an additional $350.00 to replace the windshield and the mirror.
Accordingly, the Court makes an award to claimant in the amount of $1,100.00.
Award of $1,100.00.









CC-01-192
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


FLORETTA TAYLOR

VS.

DIVISION OF HIGHWAYS

(CC-01-319)



Claimant appeared by and through her son, Thurmon S. Taylor.

Xueyan Zhang, Attorney at Law, for respondent.


PER CURIAM:

Claimant brought this action to recover costs associated with water damage to her real estate which she alleges is due to negligent maintenance of the drainage system for U.S. Route 52 in McDowell County. At the hearing of this claim, the Court amended the style of the claim to reflect the owner of the real estate as the only party in interest. The Court permitted claimant's son, Thurman S. Taylor, to present her claim as the claimant is physically unable to do so. Claimant's son is familiar with the circumstances of the claim and the Court determined that he has sufficient knowledge of the facts in the claim to testify and present the evidence on behalf of the claimant. Respondent is at all times herein responsible for the maintenance of U.S. Route 52 in McDowell County. The Court is of the opinion that respondent is liable in this claim for the reasons stated more fully below, and, further, the Court considers the claim to have been heard on the issue of liability only.
Claimant's son, Thurman S. Taylor, testified in this claim to set forth the facts in the claim as follows. Claimant's property and home are situate on Kyle Bottom Road in Kyle, McDowell County. U.S. Route 52 is a main road located on a hillside above claimant's property. The drainage system for U.S. Route 52 provides for a culvert beneath the highway which has its outlet end on a hillside some distance from claimant's property, but the water from the culvert empties such that the water flows to the drainage system for Kyle Bottom Road. Once the water flows to Kyle Bottom Road, there is a ditch line which carries the water in a downhill direction to claimant's property, and more specifically, to the edge of her driveway. At this point, claimant alleges that the water from the ditch line has no place to flow so it flows onto her driveway causing a muddy, impassable area for her on the driveway and in her yard. She attempted to remedy the situation by having 180 feet of six-inch pipe placed beneath her driveway and alongside the driveway to divert the water flowing directly onto her property towards the creek where it ultimately flows. Claimant also had gravel placed in her driveway to alleviate the muddy conditions. It is alleged that water has continuously flowed onto her property for the past twenty years. At one time, she paid an individual for work on her driveway but this did not alleviate the water problem. Claimant has suffered with the water problems for some twenty years. She has spent money for an attempted remedy, but to no avail. In 2001 she had her son (the witness at the hearing) install six-inch pipe under and along side of her driveway but the pipe is not of an adequate size to prevent excessive water from flowing onto the driveway and causing damage thereto. She also had gravel placed in the driveway and railroad ties put in to support the gravel. She expended $309.76 for the pipe and a grate. Claimant did not provide the Court with an estimate of the cost for remedying her water problems by installing fifteen-inch pipe in place of the six-inch pipe or replacing the gravel in the driveway.
Claimant asserts that the crux of her problem is the failure of respondent to provide for proper drainage on Kyle Bottom Road for the water flowing from U.S. Route 52. Therefore, respondent is negligent in its maintenance of its drainage system causing damage to her property.
Respondent contends that it has done all it can with its drainage system and that it is the responsibility of the claimant to provide a proper drainage system beneath her driveway to alleviate the water problems which she has on her property.
A crew leader employed by respondent at the Havaco substation in McDowell County, Paul Linzy Gullett, testified that he is familiar with claimant's property on Kyle Bottom Road. Although he is not personally aware that any complaints have been received by respondent about water problems on Kyle Bottom Road, he was part of the crew that installed the drainage structure placed by respondent at the location of claimant's driveway. Respondent installed a fifteen-inch pipe beneath the roadway some feet before claimant's six-inch pipe. The purpose of the new pipe is to divert the water flowing toward claimant's driveway to flow into the pipe which goes beneath the road and then into a drainage ditch on the opposite side of the road where the water eventually flows to a creek. It was Mr. Gullett's opinion that claimant is responsible for any excess water that flows onto her driveway and property even though it flows from respondent's drainage structures.
For the respondent to be held liable for damages caused by inadequate drainage, claimant must prove that respondent had actual or constructive notice of the existence of the inadequate drainage system and a reasonable amount of time to correct it. Orsburn v. Div. of Highways, 18 Ct. Cl. 125 (1991); Ashworth v. Div. of Highways 19 Ct. Cl. 189 (1993).
After a careful review of the evidence in this claim, as well as the photographs submitted by in this claim, the Court is of the opinion that the proximate cause of the damage to claimant's property is respondent's failure to maintain an adequate drainage system for the water flowing from U.S. Route 52. Respondent knew of the drainage problems at this location for a significant period of time and that the claimant was experiencing an excessive amount of water flowing onto her property. However, respondent failed to provide for an adequate drainage system for the water flowing on Kyle Bottom Road from U.S. Route 52 to prevent excessive water from flowing onto claimant's property. Thus, the Court has determined that claimant herein may make a recovery for the damages to her property.
In accordance with the findings as stated herein above, the Court directs the Clerk of the Court to set this claim for hearing on the issue of damages as soon as may be practicable.




CC-01-319
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


GINO CRITILLI

VS.

DIVISION OF HIGHWAYS

(CC-01-335)


Paul C. Camilletti, Attorney at Law, for claimant.

Andrew F. Tarr, Attorney at Law, for respondent.


PER CURIAM:

Claimant brought this action for damage to his 1981 Cadillac which occurred when he was traveling on County Route 86/7 in Marshall County and his vehicle struck a large broken sign post. Respondent was responsible at all times herein for the maintenance of County Route 86/7 in Marshall County. The Court is of the opinion to make an award in this claim for the reasons set forth herein below.
The incident giving rise to this claim occurred on June 10, 2001, between 4:00 p.m. and 5:00 p.m. Claimant and his girlfriend were traveling to a friend's graduation party. It was a clear, warm, sunny day. The road surface was dry and in good shape. Claimant was driving on County Route 86 at approximately fifty to fifty-five miles per hour. He slowed the vehicle to approximately fifteen to twenty miles per hour as he made a right turn onto County Route 86/7 also referred to as Marshall Drive. Once he made the turn onto County Route 86/7, he was forced to maneuver his vehicle onto the berm of the road in order to allow an oncoming vehicle to safely pass. As he maneuvered his vehicle to the right, he heard a loud explosion type noise and a metallic object dragging underneath his car. This was followed by a second similar explosion type noise. He got out of his vehicle to find that it was impaled on a broken sign post sticking up from the ground on the berm of the road. Both passenger side tires had burst and it took two tow trucks to maneuver the vehicle off of the sign post. The impact destroyed two tires, damaged the muffler, exhaust pipe, carburetor and the fuel tank. Claimant testified that he did not see the sign post before striking it with his vehicle because he was watching for traffic as he made the right turn. He was also watching for the oncoming vehicle which he let pass, and his view of the sign post was obscured by the lay of the land at this location. County Route 86/7 is designated as a two-lane road. However, according to the claimant it is narrow and difficult for two vehicles to pass without one driver having to maneuver onto the berm, especially in this incident involving two large vehicles. Claimant submitted repair bills in the amount of $819.39 for the damage to his vehicle.
Claimant asserts that respondent knew or should have known of the broken sign post and failed to remove it in a timely fashion. Its failure to do so created a hazardous condition to the traveling public.
Respondent contends that it did not have notice of the broken sign post prior to this incident. James R. Wurtzbacher, the Traffic Services Supervisor for respondent in District Six which includes the area at issue in Marshall County, is responsible for supervising the maintenance of signs in Marshall County. According to Mr. Wurtzbacher, County Route 86/7 is seventeen feet wide and that the location where this incident occurred was on the respondent's right-of-way. He testified that he did not have any prior notice that there was a broken sign post at the location at issue. He did not become aware of this broken sign post until after this incident. Mr. Wurtzbacher testified that on June 13, 2001, a new speed limit sign was put in place at or near the location of this incident. He also testified that this sign was put up by respondent because the previous sign was missing. However, he could not state why it was missing or when it disappeared.
The State is neither an insurer nor a guarantor of the safety of persons traveling on its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). To hold respondent liable, the claimant must establish by a preponderance of the evidence that the respondent had actual or constructive notice of the road defect in question and a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). Respondent has a duty to maintain the berm of a highway in a reasonably safe condition for use when the occasion requires. Compton v. Division of Highways, 21 Ct. Cl. 18 (1995).
In the present claim, the Court is of the opinion that the respondent had constructive, if not actual, notice of the broken sign post. The evidence establishes that the broken sign post was on respondent's right of way. Given the damage caused to claimant's vehicle, it is obvious that the sign post was high enough and that it should have been noticed by the respondent's employees during routine maintenance. Further, the fact that this is a narrow road, it is foreseeable that a driver would need to use the berm at this location to allow oncoming traffic to pass safely. The evidence also establishes that the claimant was allowing another vehicle to pass and he acted reasonably in using this berm. Therefore, the Court is of the opinion that the respondent failed to adequately maintain the berm at this location and that this failure was the proximate cause of the damages to claimant's vehicle.
Accordingly, the Court is of the opinion to and does make an award to the claimant in the amount of $819.39.
Award of $819.39.


CC-01-335
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


JARED B. CASDORPH AND BERNARD G. CASDORPH

VS.

DIVISION OF MOTOR VEHICLES

(CC-02-057)



Claimant appeared pro se.

Joy M. Bolling, Assistant Attorney General, for respondent.


PER CURIAM:

This claim was submitted for decision based upon the allegations in the Notice of Claim and respondent's Answer.
Claimant Jared B. Casdorph seeks $70.00 for paying a fine when he was stopped by the WV State Police on January 21, 2002, and his driver's license check with respondent indicated that his license was suspended. He received the fine based upon the check on his driver's license. Respondent had failed to remove the suspension from claimant's records when his driver's license had been reinstated on August 2, 2001. Claimant was required to pay the fine due to the inaccurate records inadvertently maintained by respondent.
In its Answer, respondent admits the validity of the claim as well as the amount, but the Court is aware that it does not have a fiscal method to pay the claim.
In view of the foregoing, the Court is of the opinion to and does make an award to claimant in the amount of $70.00.
Award of $70.00.