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IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
MARGARET LOUISE WALSH-ELLISON
VS.
DIVISION OF HIGHWAYS
(CC-02-062)

Claimant appeared pro se.



Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:



Claimant brought this action for damage to her Ford Contour
which occurred when she was traveling on Route 19/21 in Raleigh
County and her vehicle struck a large hole on the edge of the road.
This portion of Route 19/21 is maintained by the respondent in
Raleigh 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 November
17, 2001, at approximately 8:00 a.m. The weather was clear and the
road surface was dry. Ms. Ellison was traveling Route 19/21 on her
way to see her mother in Oak Hill. At this location, Route 19/21
is a two-lane road with a double yellow line and white lines on the
edges. Claimant was traveling approximately thirty to thirty-five
miles per hour as she was approaching a red light. At the location
of this incident, there is a left turning lane for traffic to turn
onto South Fayette Street. Prior to the designated location for
the left turn, there is a restricted lane of travel with yellow
lines. The claimant testified that there was a truck that drove
into the turning lane too soon and was within the restricted lane.
The truck was very close to claimant's vehicle. In order to avoid
contact, claimant drove her vehicle slightly to the left where it
struck a large hole on the edge of the road. The impact destroyed
the two passenger side tires and wheels. The hole was
approximately eight and a quarter inches deep and extended from the
edge of the road and covered a small portion of the white edge
line. Claimant described the hole as very jagged and sharp around
the edges. She testified that she knew the hole was present and
that it had been there since June or July of 2001. Further, she
had called respondent's office to report this hole as well as other problems along the same stretch of road in approximately June of
2001 prior to the incident. Ms. Ellison submitted a repair
estimate for the two wheels in the amount of $132.64. and a repair
estimate in the amount of $105.89 for the two tires.

Claimant asserts that respondent was negligent in its
maintenance of Route 19/21 at this location and that its negligence
created a hazardous condition for the traveling public.

Respondent contends that it did not have a reasonable amount
of time to repair this location following the heavy rain damage to
the highways in Raleigh County and that under the circumstances it
adequately maintained route 19/21.

Michael B. Allen, employed by respondent in Raleigh County as
a foreman, testified that his responsibilities include maintaining
and monitoring the roads under his responsibility. This portion of
Route 19/21 is within his responsibility and he is familiar with
the location of this incident. He stated that Route 19/21 is a
high priority road and is heavily traveled. Mr. Allen was aware
that the shoulder of the road was in poor condition at this
location due to the heavy rains that occurred during the prior
summer months. He testified that there were higher priority routes
and locations to repair before reaching this particular hole on the
edge of the road.

It is a well established principle of law in this State that
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). For the respondent to be held 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 make adequate repairs.
Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept.
of Highways, 16Ct. Cl. 8 (1985).

In this claim, the evidence established that this portion of
Route 19/ 21 presented a hazard to the traveling public. The size
of this hole, its location in the road, and the fact that
respondent knew that it existed leads the Court to conclude that
respondent had notice of this hazardous condition and an adequate
amount of time to take corrective action. Thus, the Court finds
respondent negligent in this claim and claimant may make a recovery
for her damages.

Accordingly, the Court makes an award to claimant in the
amount of $238.53.

Award of $238.53.
CC-02-062
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
CATHERINE BRANICKY
VS.
DIVISION OF HIGHWAYS
(CC-02-121)

Claimant appeared pro se.

Andrew F. Tarr, Attorney at Law , for respondent.
PER CURIAM:

Claimant brought this action for damage to her 1988 Eagle
Premier which occurred when she was traveling north on Route 2
between Glendale and McMechen in Marshall County and her vehicle
struck a large rock in the road. Respondent was responsible at all
times herein for the maintenance of Route 2. The Court is of the
opinion to make an award in this claim for the reasons set forth
below.

The incident giving rise to this claim occurred on February
10, 2002, at approximately 2:30 p.m. Claimant and a friend were on
their way back from Glendale. Claimant was driving northbound on
Route 2 towards her home in Benwood in Marshall County. It was
cloudy outside but the roads were dry. She was traveling in the
far right lane. At this location, Route 2 has four lanes.
Claimant was just north of Glendale traveling at approximately
forty to forty five miles per hour when suddenly her vehicle struck
a large rock in the middle of her lane of travel. She stated that
she saw the rock just briefly before the vehicle struck it, but she
did not have enough time to react so as to avoid it. There was
only one other vehicle near her vehicle at the time of the
incident, and it was trying to pass her in the left lane. She
testified that the rock was approximately twelve to fifteen inches
long, eight to nine inches tall, and eight to ten inches wide. The
impact was strong enough to destroy the transmission in the
vehicle. She was forced to maneuver the vehicle off the road, and
wait on a tow truck. Fortunately, no one was injured, but the
vehicle was seriously damaged and had to be towed. Claimant stated
that she traveled this portion of Route 2 often. The last time she
traveled it was approximately four days before this incident. She
was aware that this area was a rock fall area, and that it is
marked with warning signs. Although she has never seen a rock fall
at this location prior to this incident, she testified that she has
traveled the same portion of Route 2 and observed numerous clean up
crews cleaning up rock falls. Claimant also testified that this
area is referred to as the "upper narrows" and is known for having
numerous rock falls. Claimant submitted a repair estimate for the
cost of replacing the vehicle's transmission. The estimated cost for replacing the transmission was $1,500.00 to $2,000.00.
Claimant also submitted into evidence a tow bill in the amount of
$35.00. Claimant testified that she gave the repair shop her
vehicle because the cost to replace the transmission was more than
the value of the vehicle. She purchased the vehicle in 1995 at a
price of approximately $4,900.00. The vehicle had approximately
fifty-one thousand miles on it when she bought it, and
approximately seventy thousand miles when this incident occurred.
Further, she testified that a few months prior to the accident a
few individuals had told her that the vehicle was worth
approximately $800.00 to $1,000.00. Claimant stated that she did
not have comprehensive insurance coverage that would cover any
portion of this damage. Claimant seeks the value of the vehicle
and the cost of the towing bill.

Claimant asserts that respondent knew or should have known
that this was a high risk area for rock falls and yet failed to
take timely and adequate measures to remedy this hazardous
condition.

Respondent did not present any evidence or witnesses in this
claim.

To hold respondent liable, claimant must establish by a
preponderance of the evidence that 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).

In the present claim, the Court is of the opinion that
respondent had at least constructive, if not actual notice, of rock
fall hazards in the area at issue. The area on Route 2 commonly
referred to as "the narrows" is a section of highway known for
dangerous rock falls which are a hazard to the traveling public.
The respondent's actions on the date of this incident were not
adequate to protect the claimant from the rocks which frequently
fall onto the highway. Thus, the Court is of the opinion that
respondent is liable for the damages which flow from its inadequate
protection of the traveling public in this specific location of
Route 2, and further, that respondent is liable for the damages to
claimant's vehicle in this claim. The Court is of the opinion to
make an award to the claimant for the fair market value of her
vehicle in the amount of $1,000.00, and an award for the cost of
the towing bill in the amount of $35.00. Thus, the Court makes a
total award to the claimant in the amount of $1,035.00.

In accordance with the finding of facts and conclusions of law
as stated herein above, the Court is of the opinion to make an
award to the claimant in the amount of $1,035.00.

Award of $1,035.00.
CC-02-121
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
BRYANT M. HATFIELD, JR.
VS.
DEPARTMENT OF MOTOR VEHICLES
(CC-02-167)

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 purchased a truck based upon title information issued
by the respondent State agency. After purchasing the truck and
being issued a clear title, claimant determined that the title
should have been noted as a rebuilt title. Claimant purchased the
vehicle for $6,000.00. However, the vehicle was worth only
$1,000.00; therefore, claimant seeks $5,000.00 in damages.

In its Answer, respondent admits the validity of the claim and
that the amount claimed is fair and reasonable. The Court is aware
that respondent does not have a fiscal method for paying claims of
this nature; therefore, the claim has been submitted to this Court
for determination.

In view of the foregoing, the Court is of the opinion to and
does make an award to claimant in the amount of $5,000.00.

Award of $5,000.00.
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
RONALD R. JAWORSKI and JOANN JAWORSKI
VS.
DIVISION OF HIGHWAYS
(CC_02_204)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for damage to their 2000 Ford Taurus
which occurred when they were traveling on Route 2 north of
Glendale in Marshall County and the vehicle struck a large rock in
the road. Respondent was responsible at all times herein for the
maintenance of Route 2. The Court is of the opinion to make an
award in this claim for the reasons set forth more fully below.
The incident giving rise to this claim occurred on April 22, 2002
at approximately 6:00 a.m. Mr. Jaworski was driving and Mrs.
Jaworski was a front seat passenger. They were traveling from their
home in Glendale to babysit for their daughter in Elm Grove. There
was no precipitation; however, it was very foggy which reduced
visibility. The claimants were traveling at approximately
forty_five miles per hour in the right lane. Mr. Jaworski testified
that the incident occurred just north of Glendale. He stated that
they had just rounded a curve and approached a straight stretch in
the road when he suddenly saw three or four large rocks in the
road. He testified that he could not avoid striking all of them so
he quickly decided to drive the vehicle over the smallest rock,
which caused damage to the transmission pan. He described the rock
that the vehicle struck as approximately ten inches long and six
inches high. The other rocks were much larger. According to Mr.
Jaworski, he did not have time to apply his brakes because the
rocks were in his lane of travel just as he rounded a curve.
Claimants submitted a repair bill into evidence in the amount of
$274.18 for which they are seeking recovery, and a copy of an
invoice for a rental car in the amount of $78.60 which their
insurance paid $40.00. Therefore, claimants also seek to recover
their out_of_pocket costs related to the rental car in the amount
of $30.00.
Claimants assert that respondent knew or should have known that
this was a high risk area for rock falls and yet failed to take timely and adequate measures to remedy this hazardous condition.
It is respondent's position that it acted diligently in this claim
in that it had warning signs in place and other safety mechanisms
implemented to protect the public.
Christopher Minor, Transportation Crew Leader for respondent in
Marshall County at the time this incident occurred, has
responsibility for maintenance of the roads which includes
overseeing Route 2 at this location and responding to any reports
of fallen rocks. He testified that he is familiar with this portion
of Route 2 at the location of this incident and that it is a known
rock fall area. He also testified that there are rock fall warning
signs in place including one at the north end of Glendale and one
at the south end of McMechen so as to warn traffic going in both
directions. In addition to the warning signs, Mr. Minor stated that
respondent has high_intensity lights in place at various locations
through the narrows to illuminate the road for the traveling
public. Mr. Minor also testified that respondent did not have any
notice of this rock fall prior to this incident and responded to it
as soon as it was possible.
It is a well established principle 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, claimant must establish by a preponderance of
the evidence that 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).
In the present claim, the Court is of the opinion that respondent
had at least constructive, if not actual, notice of rock fall
hazards in the area at issue. This area on Route 2 is commonly
referred to as "the narrows" since it is a section of highway known
for dangerous rock falls which are a hazard to the traveling
public. Although respondent has warning signs in place and special
lights to help illuminate the highway at night, this has not proven
to be an adequate remedy to protect the traveling public from the
rocks which frequently fall onto the highway. This Court has
expressed its concern with the section of highway know as the
"narrows" in several previous opinions wherein awards were made to
members of the traveling public who had accidents caused by the
falling rocks. Dunn v. Division of Highways, 19 Ct. Cl. 163 (1992);
Dimmick v. Division of Highways, 22 Ct. Cl. 71 (1998); see also
Foster v. Division of Highways, 23 Ct. Cl. 248 (1999); Hundagen v.
Division of Highways, 23 Ct. Cl. 81 (1998); Williams v. Division of
Highways, 23 Ct. Cl. 109 (1999). Thus, in this claim, the Court is
of the opinion that respondent is liable for the damages which flow
from its inadequate protection of the traveling public in this specific location of Route 2, and further, that respondent is
liable for the damages to claimants' vehicle.
In accordance with the findings of fact and conclusions of law as
stated herein above, the Court is of the opinion to and does make
an award to the claimants in the amount of $312.78.
Award of $312.78.
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
JOYCE E.C. EDGELL and ROBERT N. EDGELL
VS.
DIVISION OF HIGHWAYS
(CC-02-219)

Claimants appeared pro se.

Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:

Claimants brought this action to recover for damage to their
real and personal property from a flood which occurred on or about
May 23, 2000. Claimants allege that the flood was the result of
respondents' failure to maintain its drainage system on McKimmie
Ridge Road (designated as Route 52) in Wetzel County. Respondent
was at all times herein responsible for the maintenance of this
road and its drainage system. The Court is of the opinion to grant
an award to claimants for the reasons stated herein below.

Claimants purchased their property adjacent to McKimmie Ridge
Road in the fall 1984. The road circles their property with a
hillside and the road above their property to the back of the
property. The road proceeds around their property on one side, and
then the road circles to the front of the property where the road
is below their property. Claimants had experienced no severe water
problems on their property for the sixteen years that they resided
on the property. According to claimant Mrs. Edgell, in May 2000
respondent replaced a culvert on the upper side of the road during
which time respondent also cleaned off the bank along the ditch
line; at that same time respondent also removed a "lip" of earth at
the edge of the road adjacent to claimants' property; and,
respondent slanted the roadway surface toward claimants' property. As described by Mrs. Edgell, the lip of earth along the edge of the
road was anywhere from six inches to eighteen inches in height. In
her opinion, this lip, consisting of dirt and stone built up during
routine maintenance by respondent, acted as a barrier for surface
water which flowed in the road. When the lip was removed during
the maintenance project, it allowed surface water from the road to
flow onto claimants' property. Additionally, she testified that
respondent filled in the ditch line on the opposite side of the
road from claimants' property. This ditch had been about a foot to
a foot and a half deep, but during the maintenance efforts by
respondent, it was filled in and became a shallow area for the
water. According to claimant Joyce Edgell, these maintenance
efforts by respondent resulted in excess runoff which flowed from
the hillside above their property, across McKimmie Ridge Road, over
the edge of the road, and onto claimants' property causing damage
thereto, all of which occurred during an evening storm beginning
around 5:00 p.m. to 6:30 p.m. on May 23, 2000. It rained off and
on during that night but the most severe rainfall occurred by 9:30
p.m. Claimant and her husband noticed that more water than usual
was flowing onto their property that evening. They worked in the
dark by flashlight in an attempt to dig a ditch to protect an out
building and their house. In the morning of May 24, 2000,
claimants took photographs depicting the conditions surrounding
their home and in the yard. As depicted in photographs taken by
claimants, the amount of mud and gravel covering the deck, patio,
out building, ditch, and their yard in general was considerable.

Claimants assert that another reason for the excessive amount
of water flowing onto their property during the flood was the fact
that a culvert respondent replaced under McKimmie Ridge Road had
not functioned properly prior to being replaced. The new culvert
was installed at a location above claimants' property at a location
different from the original culvert at the request of the
claimants. This new culvert, according to Mrs. Edgell's testimony,
was not large enough to handle the amount of water coming from the
hillside and it quickly filled up causing more surface water than
usual to flow over the road surface and onto claimants' property
causing damage to an outbuilding, deck, and covering their yard in
dirt and gravel. The mud was approximately two feet deep in places
on their property. A ditch that existed on claimants' property to
provide for water drainage from the road became filled with mud,
dirt, and gravel during the flood and that ditch had to be cleaned
out to continue to provide protection to their property from normal
runoff from McKimmie Ridge Road. The damages to claimants' real
property and personal property which were the result of the flood
on May 23, 2000, were documented in the amount of $9,812.00.
Claimants also allege annoyance and inconvenience as damages.

Respondent contends that it performed routine maintenance on
McKimmie Ridge Road (also referred to by its designated route
number as County Route 52 by respondent's employees) on May 15,
2000. Dale Richmond, an equipment operator for respondent in Wetzel County, testified that he operated the backhoe for
respondent on May 15, 2000, during the maintenance project on
McKimmie Ridge Road. He explained that the existing fifteen-inch
culvert was "bad" so it was replaced with an eighteen-inch culvert.
The new culvert was placed farther away from the original culvert
at the request of claimant Mrs. Edgell. He described the work
performed for replacing the culvert and that after the May 23,
2000, incident that the new culvert was filled with cement at the
request of the claimants. County Route 52 (McKimmie Ridge Road) is
a gravel road with a crown at the center for water to drain to
either side of the road. He filled in the ditch line on the road
opposite from claimants' property as the ditch was two to three
feet deep in places. The filled ditch line was much more shallow
after he finished the routine maintenance work.

Joe Mercer, a crew leader for respondent in Wetzel County,
testified that McKimmie Ridge Road is a gravel road and a bus
route. As such, it is a low priority road for maintenance
purposes. He visited claimants' property after the flooding had
occurred on May 23, 2000, and took photographs which depict the
ravine from the road proceeding down the hillside through
claimants' property. He did not remember the weather conditions on
May 23, 2000.

The Court, having reviewed all of the evidence in this claim,
is of the opinion that the maintenance efforts of the respondent
were performed to improve McKimmie Ridge Road; however, these
efforts were performed without regard to the amount of water that
flows from the hillside, across the road, and onto the property
below the road which is owned by claimants. The "lip" of earth and
gravel described by claimant Mrs. Edgell apparently afforded
protection to claimants' property from the natural flow of water on
McKimmie Ridge Road. While respondent's actions appear to be
reasonable under the circumstances, respondent did not take into
consideration the amount of water coming off its roadway.
Respondent did not provide protection to claimants' property when
it removed the "lip" of earth that protected the abutting property.
It exacerbated runoff problems when it filled in the ditch line on
the opposite side of McKimmie Ridge Road creating more surface
water runoff onto the road and thus onto claimants' property. All
of its actions were detrimental to claimants' property. Even
though claimants' property appears to be in a natural drainage area
there had not been severe water problems from runoff until
respondent's changes to the road, the ditch line, and the removal
of the lip of earth at the edge of claimants' property. An owner
of property which is abutting property owned by another is liable
for creating a situation whereby excessive water is diverted onto
the adjoining property. In the instant claim, claimants had not
experienced excessive water problems for sixteen years until the
actions by respondent in its maintenance of its road. Therefore,
the Court concludes that the actions of the respondent in its
maintenance of McKimmie Ridge Road were the proximate cause of the flooding on claimants' property on May 23, 2000.

As to the damages incurred by claimants, they established
through estimates the cost for restoring their property and the
replacement cost for damaged personal property. The Court
calculates actual damages in the sum of $9,812.00. The Court is
also of the opinion that claimants suffered annoyance and
inconvenience in their efforts to clean up the mud and gravel on
their property and in cleaning out their drainage ditch. They
spent several days in their efforts to restore their property so as
to make it usable. The Court has determined that the amount of
$3,000.00 for annoyance and inconvenience is fair and reasonable.

Accordingly, the Court is of the opinion to and does make an
award to claimants in the amount of $12,812.00.

Award of $12,812.00.
CC-02-219
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
TASHA NICOLE ROSS
VS.
DIVISION OF MOTOR VEHICLES
(CC-02-291)

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.

On January 30, 2002, claimant paid a traffic ticket in Dunbar,
Kanawha County. On June 2, 2002, claimant was pulled over by
police and informed that her license was suspended and she was
placed under arrest. Claimant was forced to pay $150.00 as a
percentage of her bail in order to be released from jail.
Apparently, respondent had failed to note that claimant had
received a ticket which she paid prior to the deadline of February
16, 2002. Claimant seeks reimbursement of $150.00 for the
percentage of bail she was required to pay as a result of respondent's error.

In its Answer, respondent admits the validity of the claim and
that the amount is fair and reasonable. The Court is aware that
respondent does not have a fiscal method to reimburse claimant for
a loss such as that experienced by claimant; therefore, the claim
has been submitted to this Court for determination.

The Court, having reviewed the facts and circumstances in this
claim, has determined that claimant is entitled to a recovery for
his sustained loss.

Accordingly, the Court makes an award to claimant in the
amount of $150.00.

Award of $150.00.