OPINION ISSUED AUGUST 15, 2002


CC-02-291
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA

BRENDA K. MITCHELL

VS.

REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY

(CC-02-298)

William E. Kiger, Attorney at Law, for claimant.

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 seeks $3,000.00 for an item of personal property that was entrusted to respondent's employees when she was taken to the North Central Regional Jail, in Doddridge County, a facility of the respondent. At the time of claimant's release, she discovered her diamond ring was missing. Thus far, respondent's employees have been unable to produce claimant's personal property.
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 for paying claims of this nature; therefore, the claim has been submitted to this Court for determination.
The Court has taken the position in prior claims that a bailment situation has been created if property of an inmate which is taken from that inmate, remains in the custody of respondent, and is not produced for return to the inmate at a later date.
Accordingly, the Court makes an award to the claimant herein in the amount of $3,000.00.
Award of $3,000.00.
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA



LARRY D. WHITEHAIR, SHARON WHITEHAIR,
DALE WHITEHAIR, and AMY WHITEHAIR

VS.

DIVISION OF HIGHWAYS

(CC-89-433)
Mark R. Staun and Douglas B. Hunt, Attorneys at Law, for claimants.
Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent.
GRITT, JUDGE:
Claimants, Larry D. Whitehair, Sharon Whitehair, Dale Whitehair, and Amy Whitehair, brought this action for One Million Dollars against the respondent for personal injuries sustained as a result of an automobile accident that occurred on November 10, 1987, on the northbound Little Sandy Bridge while they were traveling north on I-79 in Kanawha County. The hearing of this matter was held September 19 through 21, 2001, and April 2 and 3, 2002. Prior to the beginning of the hearing of the claim, the Court visited the scene of the incident. The Court is of the opinion to deny this claim for the reasons set forth more fully below.
The incident at issue in this claim occurred on the northbound Little Sandy Bridge, which bridge is located on I-79 near Elkview approximately ten miles north of Charleston in Kanawha County. The Little Sandy Bridge consists of two bridges that cross over Little Sandy Road and Creek. One bridge carries northbound traffic on I-79, while the other bridge carries southbound traffic. A gap of several feet divides the bridges from one another. Each bridge has a concrete deck and is over one thousand feet long. Each bridge has two traffic lanes and the bridges are supported by pillars. Both bridges contain 32-inch high concrete barriers or parapet walls that run along the sides of each bridge. The bridges are curved, with the traffic facing a curve to the left on the northbound bridge. There is a steadily increasing height between center. Guardrail is located at both the northern and southern ends of each bridge. There were striped object markers in place at each end of each bridge.1Charles Raymond Lewis, II, the Planning and Research Engineer with respondent's Traffic Engineering Division, testified there were striped object markers in place at each end of each bridge since 1985. These markers had been placed at these locations to warn the traveling public that they were entering a bridge. It is not certain whether or not that there was a "Bridge Freezes Before Roadway" sign in place for northbound traffic to observe at the time of this incident. There are grassy median strips that extend both north and south from both ends of the Little Sandy Bridges. The southern grassy median strip extends for 2.4 miles south of the bridges where it ends at a concrete median strip.
The incident giving rise to this claim occurred on November 10, 1987. The Whitehair family went to the Charleston Town Center Mall to do some early Christmas shopping and to have dinner. They left the mall at closing time which was approximately 9:00 p.m. Larry Whitehair, husband of Sharon Whitehair and father of claimants Amy and Dale Whitehair, was driving his1985 Buick LeSabre. Claimant Sharon Whitehair was in the front passenger seat while Dale Whitehair was in the back seat behind his father and Amy Whitehair was in the back seat behind her mother. When the claimants left Charleston Town Center Mall, there was some form of precipitation falling. The testimony regarding exactly what form of precipitation was actually falling is not entirely clear, but the majority of witnesses testified that it was raining lightly. Each of the claimants testified that Larry Whitehair did not have any trouble operating his vehicle between Charleston and the Little Sandy Bridges. There is nothing in the record that I-79 presented a hazard to the claimants until they reached the northbound Little Sandy Bridge. However, the closer the claimants got to their home in Elkview, the more the weather deteriorated. Sharon Whitehair testified that their vehicle was either on or very near the entrance to the northbound Little Sandy Bridge when she noticed that there were vehicles ahead of their vehicle on the bridge which appeared to be sliding. The claimants testified that there were two or three vehicles spinning out of control on the bridge ahead of their vehicle. All of the vehicles spinning out of control were in the right lane. Larry Whitehair was able to maneuver his vehicle around the first one or two vehicles. However, either the second or third vehicle slid or otherwise drifted from the right lane into the left lane directly into the path of the claimants' vehicle, and according to the testimony of claimant Larry Whitehair, that vehicle "clipped" claimants' vehicle. The claimants' vehicle continued to slide and came to rest at an angle against the concrete parapet wall on the left side of the northbound passing lane of the bridge. The rear of their vehicle was protruding into the passing lane. The resting-place of the claimants' vehicle was close to the northern end of the bridge. The Whitehair family suffered injuries as a result of the impact with the parapet wall. Larry Whitehair stated that he struck the steering wheel with sufficient force to break it. Sharon Whitehair testified that she struck the dashboard injuring her head, shoulder, and biting into her tongue. Dale Whitehair testified that he hit the back of the front seat hard enough to break it. Amy Whitehair also struck the back of the front seat causing her to have a bloody nose.
After coming to a complete stop, Dale Whitehair testified that he recalls his parents asking if everyone was all right. Larry Whitehair tried to restart his vehicle a few times but it was too badly damaged to start. The testimony is unclear as to which parent made the statement, but one of them stated that they could not stay in the car. Regardless, the entire family immediately exited the vehicle. Amy Whitehair exited the vehicle through the right rear door. At approximately the same time, Sharon Whitehair was exiting the vehicle through the right front door. Larry Whitehair could not exit through the driver side door because it was jammed against the parapet wall. Therefore, he had to crawl over to the right front door to exit the vehicle. Dale Whitehair was the last person to exit the vehicle because his feet got tangled up with Amy Whitehair's purse straps when he was tossed around in the back seat during the accident. Once he got his feet free from the purse straps, he was able to exit the vehicle through the left rear door. Each claimant testified that he or she left the vehicle out of fear that another car was going to slam into their vehicle on the icy bridge. They all stated that their intentions as a group were to reach an area of safety. The claimants, except for Amy Whitehair, testified that the bridge surface was very slick and that they had a difficult time standing up without holding on to something. According to the claimants, almost as soon as they exited the vehicle they observed another vehicle coming directly towards them. They testified that they were trying to climb over the parapet wall into the what they believed to be the southbound lanes of I-79 to place the wall between themselves and other northbound vehicles. Each claimant testified that he or she believed that each was simply stepping into the southbound lane.2Although the statements herein reflect the testimony from each of the claimants at the hearing of this claim, the Court notes that interrogatories sworn to by claimants Sharon Whitehair, Dale Whitehair, and Amy Whitehair filed in an action then pending in the Kanawha County Circuit Court against Larry Whitehair stated as follows: "...the Defendant [Larry Whitehair] negligently advised and encouraged the Plaintiffs to jump over the bridge to avoid oncoming traffic." Tragically, this was not another lane but the bridge parapet wall on the other side of which was a sheer drop to the ground below. Three of the four claimants testified that they believed they were not on a bridge at the time of the accident. Each of the claimants fell approximately 80 feet to the ground. Miraculously, they all survived this treacherous fall, but each family member suffered serious injuries.
Claimants contend respondent knew or should have known that the northbound Little Sandy Bridge presented an icy, hazardous condition to the traveling public; that respondent had a number of pre-treatment options which could have prevented or alleviated such icing conditions on the bridge, but failed to utilize any of these options; and that respondent failed to provide proper warning to the traveling public of a known hazardous condition. It is claimants' contention that respondent's failure to respond properly to this hazard constituted negligence and that this negligence was the proximate cause of the claimants' injuries sustained in their fall from the bridge.
Respondent asserts that it did not have adequate notice that there was ice forming on the northbound Little Sandy Bridge nor did it have a reasonable amount of time to apply remedial materials. Respondent also asserts that pretreatment options were not the proper standard to apply under these circumstances and pretreatment options would have been ineffective to prevent icing on the northbound Little Sandy Bridge. Further, respondent asserts that flashing warning signs and /or ice sensor devices would not have been helpful in this claim.
Patrick Rodgers, the operator of a 1985 Subaru hatchback, arrived on the scene after the claimants' vehicle came to rest. He stated that he had driven over the Little Sandy Bridges a few times prior to this incident. Mr. Rodgers had three passengers in his vehicle. Jeffrey M. Miller was the front seat passenger while Kristina D. Cyrus and Sally A. Jenkins were seated in the rear. Kristina Cyrus has since married and now uses her married name, Kristina Skross, by which she will be identified throughout this opinion. Mr. Rodgers and his passengers were students at West Virginia Wesleyan College and on the date of this incident they had also been shopping at the Charleston Town Center Mall. They were on their way back to Buckhannon when this incident occurred. Mr. Rodgers stated that it was only misting rain when they left the mall, but the further north he drove the heavier the rain became. He stated that it was approximately a little less than ten miles prior to the bridge when the precipitation changed from rain to a mixture of rain and snow.Mr. Rodgers testified that he did not have any problems operating his vehicle between Charleston and the northbound Little Sandy Bridge. This was corroborated by Kristina Skross who also stated that Mr. Rodgers had no trouble operating the vehicle until he arrived at the bridge. She further testified that in her opinion he was driving safely under the circumstances then and there existing. Mrs. Skross stated that she knew that they were on a bridge when this incident occurred. Both Mr. Rodgers and Mrs. Skross indicated that it was not until he was very close to the bridge that he started slowing down due to poor road conditions. At this point, he stated that it was very dark outside and visibility was poor. His vehicle was in the passing lane as he drove onto the northbound Little Sandy Bridge. As soon as he drove onto the bridge he immediately knew that it was covered with ice. The only vehicle that he observed on the bridge at that moment was the claimants' vehicle which was resting against the left side of the bridge at the point on the bridge where the northbound lanes turn to the left. Claimants' vehicle was resting against the wall near the north end of the bridge. Upon observing the claimants' vehicle, Patrick Rodgers proceeded to try to drive into the right lane when his vehicle spun around on the ice and did at least one 360-degree turn. Mr. Rodgers initially brought his vehicle to rest with the rear of his vehicle facing the right side of the claimants' vehicle. He testified that his vehicle initially stopped approximately one or two feet away from the claimants' vehicle. According to Mr. Rodgers and Mrs. Skross, there was no collision between the Rodgers' vehicle and the claimants' vehicle. As soon as he brought his vehicle to a stop, he looked back and saw a Buick traveling directly towards his vehicle. The Buick, driven by Ramona Gunnoe, slammed into the right front of Mr. Rodgers' vehicle. The impact of this collision spun his vehicle around such that the left front portion of his car came to rest against the right front fender of the Whitehair vehicle. Ms. Gunnoe's vehicle came to rest in the grassy median approximately thirty-five yards north of the location of the initial impact. Mr. Rodgers' stated that all of the damage to his Subaru was caused by Ms. Gunnoe's vehicle. After the impact from Ms. Gunnoe's vehicle, the three passengers in Mr. Rodgers' vehicle got out of the vehicle and stepped onto the bridge while Mr. Rodgers stayed in the vehicle to try to contact the State police. Mr. Rodgers saw the first police car arrive on the scene. The police officer was traveling northbound on I-79, and when he reached the bridge, his vehicle slid out of control and almost struck the Rodgers' vehicle. Once Mr. Rodgers was finally able to get out of his vehicle, he noticed that the bridge was a "solid sheet of ice." He described it as being half an inch thick. Patrick Rodgers remembers looking up and seeing his passengers walk north along the concrete wall to the grassy median area off the bridge on the left side of I-79. According to Mr. Rodgers, the distance from the accident scene to the end of the bridge appeared to be around 35 to 50 yards. Mr. Rodgers testified that he did not see the claimants during this entire sequence of events, including up to and after his vehicle was struck by the Gunnoe vehicle.
Mrs. Skross testified that she and Sally Jenkins exited Patrick Rodgers' vehicle approximately one or two minutes after the collision. Once out of the vehicle, she and Sally Jenkins began walking towards the end of the bridge along the left side of the bridge next to the parapet wall when she saw three people sitting on the wall. She stated that one person appeared to be standing right behind them. According to her observations, it appeared that there were two children and their mother sitting on the wall and the father was standing behind them. Suddenly, she observed the four people jump off the bridge. The three people sitting on the wall jumped first. The woman was the last one sitting on the wall to jump followed by the father, who was the last one to jump. Mrs. Skross testified that she does not believe that anyone else saw them jump. She recalls looking over the side of the bridge where they had jumped to determine whether or not she should jump. However, Ms. Jenkins warned her that she could not see the ground or what was below and that she should not jump. Mrs. Skross also stated that she could see across to the southbound bridge as well as observing steam rising up from underneath the southbound bridge. Once she decided not to jump, Mrs. Skross and Ms. Jenkins ran to the end of the northbound bridge and stopped on the left side of the interstate in the grassy median. Mrs. Skross estimated that it took a matter of seconds to reach the end of the bridge from the location where she saw the claimants jump. She also added that it was not slippery at the location on the bridge where they ran off of it. Mrs. Skross made a sworn statement to the investigating officer, State Trooper K.T. Quinlan, on the night of this incident, which statement was corroborated by her testimony regarding her observations of the claimants jumping off the northbound Little Sandy Bridge. Also in this statement, she identified the wrecked vehicle as a white Buick and stated that she saw people getting out of the Buick while the vehicle she was in was still spinning.
The first police officers arrived at the scene of the accident at approximately 9:36 p.m. Deputy Jesse Johnson of the Kanawha County Sheriff's Office participated in the investigation of the accident. Approximately fifteen to twenty minutes prior to the accident, Deputy Johnson had driven across the southbound Little Sandy Bridge. He was traveling from the Elkview detachment to Charleston. He testified that the roadway had been damp all evening, but he stated that there had not been any ice on the roads. He also testified that when he drove over the southbound Little Sandy Bridge prior to the accident, the conditions on the bridge were cool and damp and he had no problem traveling across the bridge at that time. Deputy Johnson got to the scene of the accident at the same time as Officer K. T. Quinlan of the West Virginia State Police. By the time Deputy Johnson and Officer Quinlan arrived at the scene of the incident at approximately 9:36 p.m., the conditions on the northbound Little Sandy Bridge had seriously deteriorated. Both officers stated that there was black ice on the bridge.
Lewis Adkins, a former employee with respondent, was a truck driver for respondent at the time of this incident. He has since retired. One of Mr. Adkins' responsibilities while employed with the respondent was to drive a salt truck to treat roads during the winter when needed. During the winter of 1987 and 1988, Mr. Adkins was responsible for treating I-79 from the Westmoreland Exit in Charleston to the Elkview Exit in Elkview. This area includes the Little Sandy Bridges. He had been responsible for treating this portion of highway for six or seven years prior to this incident. He was familiar with the Little Sandy Bridges. Although Mr. Adkins was somewhat confused about the hours that he worked that evening, first explaining that he was on the midnight shift after the claimants' accident, the work logs from respondent established that he actually was working the evening shift, and thus his testimony was relevant for the time period in question herein. He testified that during his first trip across the northbound Little Sandy Bridge that night he noticed that the front tires on his truck slid a little on the bridge when he was applying salt to it. According to Mr. Adkins, he did not apply very much salt on the bridge on his first trip across it. Mr. Adkins testified that he informed his supervisor that it was not enough salt and that he needed to put more down based upon how slick this bridge was. Mr. Adkins testified that he was told not to place a heavy layer of salt on the bridge by his supervisor. Mr. Adkins' supervisor is deceased and was not available to testify. After leaving the bridge, Mr. Adkins traveled north to finish treating I-79 up to the Elkview exit. It was approximately twenty or thirty minutes after he left the northbound Little Sandy Bridge that he heard about the incident herein. Mr. Adkins then proceeded southbound to the Little Sandy Bridges where he observed the emergency vehicles and personnel on both of the I-79 bridges. Once he observed the accidents that had occurred, Mr. Adkins went back to the respondent's garage where he got a larger load of salt. He drove back to the northbound Little Sandy Bridge and placed a thicker layer of salt on this bridge as well as the other bridges on his route.
Hugh McLean, a highway engineer currently employed with a private engineering firm, testified as claimant's expert witness. Mr. McLean visited the Little Sandy Bridges, took measurements, reviewed several depositions in this claim, and reviewed construction drawings and records of the Little Sandy Bridges in forming his expert opinions. It is based upon this information and his knowledge in the field of highway engineering that he is of the opinion that the icy conditions on the northbound Little Sandy Bridge were the cause of the automobile accidents which occurred. Further, these icy conditions could have been prevented by the respondent and the failure to do so constitutes negligence on respondent's part. Mr. McLean testified as to how icy conditions lead to the lack of a friction coefficient which can cause accidents. A friction coefficient is the friction that develops between two surfaces. In this particular claim, it is the friction between vehicular tires and the bridge deck. The friction coefficient allows the car to move, steer, and turn. If there is not an adequate friction coefficient, then the tires are not going to maintain their grip on the road and the vehicle will not respond as the driver directs. Therefore, ice can severely degradate the friction coefficient. He concluded that based upon numerous eye-witnesses testimony, including Officer Quinlan and Deputy Johnson, the northbound Little Sandy Bridge did have ice on it the night of this incident.
Mr. McLean is of the professional opinion that a system of flashing lights would have been helpful, especially to augment static warning signs which drivers tend to ignore after a period of time. Mr. McLean stated that the flashing lights would increase the drivers' attention to the fact that there was a hazard ahead. The second warning device that he asserts could have been used is a detection device attached to the bridge or installed in it that warns the respondent that conditions are conducive for icing to develop. Furthermore, Mr. McLean indicated that these various warning systems have been available as far back as the early 1960's and that they have been reasonably reliable. Mr. McLean is also of the opinion that the northbound Little Sandy Bridge should have been pre-treated to provide more protection for the traveling public. He described pre-treating as applying a de-icing solution or agent on the bridge surface in advance of a storm or in anticipation of an icing event. According to Mr. McLean, the de-icing treatment will remain effective, depending upon the amount of traffic and the solution used, from a few days up to two weeks. Mr. McLean testified that this de-icing treatment has been available and used successfully since the early 1970's. It is his expert opinion these measures, if taken on the northbound Little Sandy Bridge, may have prevented the claimants' accident.
Charles Raymond Lewis, II, Planning and Research Engineer of the Traffic Engineering Division for respondent testified as an expert witness on behalf of respondent. His general responsibilities with respondent include processing accident studies and traffic safety studies. He serves in the highway safety improvement program and also works in training. He testified that the Division of Traffic Engineering works in five areas including planning, design, construction, maintenance, and operation of the highways. Mr. Lewis is familiar with the Little Sandy Bridges. He has driven over them and stopped to look at the bridges in his job capacity a total of at least a dozen times. In conducting his investigation for this claim, he visited the site three times, reviewed records, interpreted plans, and compiled information regarding the bridges. In preparation for testifying, he also reviewed the report of the claimants' expert witness, as well as the depositions and prior testimony. After reviewing all of this information, Mr. Lewis concluded that respondent had not failed adequately to maintain the northbound Little Sandy Bridge and was not negligent in this claim for the following reasons. Mr. Lewis testified that the standard procedures for icy bridge conditions such as this are for respondent to patrol the bridge periodically when it appears necessary, to have a salt truck on standby so as to spot treat, and to rely on law-enforcement to report any deteriorating conditions. The salt trucks are equipped with spreader boxes as well as salt and abrasives to spot treat the needed areas. Mr. Lewis testified that regardless of whether or not there was a "Bridge Freezes Before Roadway Sign" present at the time of the claimants' incident, it would probably not have made any difference in the outcome. Such a static warning sign is effective for non-local drivers who would tend to pay more attention to the sign due to a lack of familiarity with the highway. However, local drivers who drive the same section of road will already be aware of the condition and will tend not to rely upon signage for the highway. The local driver may not even notice the existence of the signs after passing the signs so often. Given the fact that both Larry and Sharon Whitehair had driven across the Little Sandy Bridges on a daily basis for several years, Mr. Lewis concluded that if there had been a sign present it would not have made a difference.
Mr. Lewis also addressed the issue of pre-treatment, which he described as anticipating a storm and then treating the road surface ahead of the storm usually with either sodium chloride or calcium chloride. It is his opinion that pre-treatment is not a viable option especially on an interstate where there is a heavier volume of traffic that would remove the substance. Furthermore, these pre-treatment substances are water soluble and even a moderate amount of rain would have washed the materials off the road surface quickly. Mr. Lewis testified that given the rain immediately prior to the accident, pre-treating the northbound Little Sandy Bridge would not have been helpful.
The next issue Mr. Lewis addressed was whether or not an ice detection or sensor device would have been helpful in preventing this incident. According to Mr. Lewis, ice detectors or sensors were available in 1987 and there were two such devices installed by respondent prior to 1987. There was one such device at the St. Albans/Nitro Bridge on I-64 and one on the Fort Hill Bridge. He testified that neither one of these devices was reliable. The sensors would either not detect the icy conditions and expose drivers to a high risk in that the driver would rely on the sensors to their own detriment or the sensors would give a false alarm and detect icy conditions when such a condition did not exist. Finally, Mr. Lewis also disagreed with the claimants' expert that respondent should have had in place a sensor device in conjunction with flashing warning lights. Again, he testified that such a device was unreliable based upon the same opinion given above, and since the sensors were unreliable, these devices should not have been used. Mr. Lewis concluded that in his opinion respondent took all maintenance precautions that it could possibly do on the night of this incident which was to rely on law enforcement and to spot treat the northbound Little Sandy Bridge.
It is a well established principle of law that the State of West Virginia 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 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 cannot be expected or required to keep its highways absolutely free of ice and snow at all times, and the presence of an isolated patch on a highway during winter months is normally insufficient to charge respondent with negligence. McDonald v. Dept. of Highways, 13 Ct. Cl. (1979). However, the respondent does owe a duty to travelers to exercise reasonable care and diligence in the maintenance of highways. Lewis v. Dept. of Highways, Ct. Cl. 136 (1986).
In the instant claim, the Court is of the opinion that respondent acted reasonably under the circumstances then and there existing. Respondent did not have adequate notice of the icy conditions on the northbound Little Sandy Bridge, and it did not have a reasonable amount of time to take corrective actions. Flashing warning signs would not have been effective in this claim such that the placement of such signs in all probability would not have prevented the accidents which occurred on the northbound Little Sandy Bridge that night. The sensor and detection type devices available to respondent at that time were not proven to be reliable. In addition, the pre-treatment options recommended by claimants' expert would not have been helpful in this claim because the traffic and rain would have removed it before such substances would have been effective. According to respondent's expert, respondent met the appropriate standard of care which was to spot treat icy areas on the roads and bridges. Mr. Adkins testified that he had just salted the northbound Little Sandy Bridge approximately fifteen minutes prior to this incident. Although Mr. Adkins may have wanted to apply more salt at the time, there was no evidence presented that the application of more salt would have or could have prevented this incident particularly in light the testimony of Mr. Lewis, respondent's expert witness. While the Court is sympathetic to what happened to the Whitehair family and what each of them has been through since this accident, the Court is of the opinion that the respondent acted diligently in its maintenance of the northbound Little Sandy Bridge on the date of this incident and was not negligent. Inasmuch as the Court finds no negligence on the part of the respondent, it is not necessary to consider the claimants' negligence that contributed to their injuries. However, the testimony of the claimants that they did not know they were on a bridge, especially in light of the claimants' familiarity with the bridge and the testimony of the other witnesses, lead to the conclusion that the claimants knew or should have known they were on a bridge at the time they decided to cross the parapet wall on the northbound Little Sandy Bridge. Further, since the Court has determined that the respondent was not negligent in the maintenance of the bridge, it is not necessary to consider the claimants' argument with regard to the doctrine of sudden emergency.
In accordance with the findings of fact and conclusions of law as stated herein above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
the bridges and the ground below the bridges from both ends of each bridge to the

IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


MACEL E. RHODES, INDIVIDUALLY,
AND AS NEXT FRIEND OF
ROMAN ALEXANDER TARANTINI, AN INFANT

VS.

DIVISION OF HIGHWAYS

(CC-97-431)


Shari L. Collias, Attorney at Law, for claimants.

Andrew Tarr, Attorney at Law, for respondent.


PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered into by claimant and respondent wherein certain facts and circumstances of the claim were agreed to as follows:
1. On November 25, 1995, claimant and her son, Roman Alexander Tarantini, were passengers in a vehicle being driven by Michael Tarantini. They were traveling southbound on I-79 near the town of Amma in Roane County when the vehicle struck a boulder that had fallen from the adjacent hillside and landed in the southbound lane of the interstate.
2. Respondent was responsible for the maintenance of I-79 in Roane County at all times herein. Respondent did not have notice of the boulder that had fallen onto the interstate at the time of claimants' accident; however, respondent did have notice that rock falls had occurred at milepost 22 of I-79 with increasing frequency in the previous couple of years prior to the date of this incident herein. Even though respondent had knowledge of previous rock falls, respondent had failed to place warning signs at the location of claimants' accident to advise the traveling public that the area was a rock fall area. Respondent had not taken any corrective measures to address the falling rock problem.
3. As a result of this incident, claimant suffered severe personal injuries and claimant's son suffered minor physical injuries.
4. Respondent and claimants have agreed to settle and compromise this claim for $110,000.00 to be paid as follows: the claimant Macel E. Rhodes is to receive the total sum of $105,000.00 for her past and future pain and suffering, estimated out-of-pocket past and future medical expenses and estimated lost wages. The claimant Macel E. Rhodes as the legal guardian of Roman Alexander Tarantini, an infant, is to receive the total sum of $5,000.00 for medical expenses and for the loss of consortium, love, affection, services, society and companionship of and from his mother, Macel E. Rhodes, during the period of her treatment and recovery from the injuries she received as a result of the accident.
The Court has reviewed the facts of the claim and finds that respondent was negligent in its maintenance of I-79 in Roane County on the date of this incident; that the negligence of respondent was the proximate cause of the injuries suffered by claimant Macel E. Rhodes and her son, Roman Alexander Tarantini, an infant; and that the amount of the damages agreed to by the parties is fair and reasonable. Thus, claimants may make a recovery in this claim.
Accordingly, the Court is of the opinion to and does make an award in the amount of $110,000.00 as set out herein below.
Award of $105,000.00 to Macel E. Rhodes.
Award of $5,000.00 to Macel E. Rhodes as the legal guardian of Roman Alexander Tarantini, an infant.


CC-97-431
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


RICKY E. BOWMAN AND DIANNA M. BOWMAN SMITH

VS.

DIVISION OF HIGHWAYS

(CC-98-225)



G. Patrick Jacobs, Attorney at Law, for claimant.

Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent.


WEBB, JUDGE:

Claimant Ricky E. Bowman originally brought this action for damage to his vehicle and for personal injuries to his minor daughter Dianna Bowman; however, Dianna Bowman is now of majority so she is a proper party claimant. The incident which brought about this claim occurred when claimant Dianna Bowman was traveling north on Route 214 in Yawkey, Lincoln County, lost control of the vehicle she was driving which was owned by her father, and had an accident on property belonging to respondent. This portion of Route 214 and the adjacent property is maintained by respondent in Lincoln County. The Court is of the opinion to deny this claim for the reasons stated more fully below.
Claimants contend that respondent was negligent in its maintenance of the berm of Route 214 at the location of this incident in that the culvert hole was located too close to the road and it was camouflaged by high grass and weeds creating a hazardous condition to drivers. Claimants also contend that respondent could have placed a grate over the large culvert hole to prevent vehicles that are forced to use the berm from driving into such a deep hole. In the alternative, claimants contend that respondent could have at least put up warning signs to alert drivers of the hazardous condition ahead. Claimant Ricky Bowman seeks an award in the amount of $10,575.00 for damage to his vehicle. His vehicle was appraised by Ricky Woodrum who testified that he is certified in estimating vehicle damage. Mr. Woodrum testified that the damage to the vehicle exceeded its value. The results of the appraisal were based on top N.A.D.A. book value. Ms. Bowman suffered personal injuries as a result of this incident, but all of her medical expenses were paid for by insurance.
Respondent asserts that driver error on the part of claimant Dianna Bowman was the cause of this accident because Ms. Bowman negligently lost control of her vehicle as she was proceeding around the curve prior to the Yawkey substation. Respondent also asserts that Ms. Bowman should have been able to regain control of her vehicle on the gravel lot prior to reaching the culvert hole, because the distance from where the vehicle entered the lot to the culvert hole is approximately two hundred feet. Further, respondent states that the culvert was six feet off the roadway which it considers to be a safe distance from the road, and, thus, does not present a hazard to the traveling public.
Claimant Dianna BowmanAt the time of this accident, Ms. Bowman was not married; since that time she has married and now uses her married name, Dianna Michelle Smith. Although Mrs. Smith's friend referred to her as "Shelly," the Court will refer to her as Dianna Bowman for the purposes of this opinion. was sixteen years of age at the time of the incident which is the subject matter of this claim. Ms. Bowman was a student at Duval High School when this incident occurred. On May 28, 1998, she received a phone call while at school from a friend's mother who asked if she and her friend, Tracy Miller, would come to the hospital to be with her daughter whose grandfather had just died. Dianna Bowman, Tracy Miller, and a male friend named "Gary" got permission to leave Duval High school early. Dianna Bowman drove her father's 1997 Chevrolet Cavalier with Ms. Miller and Gary as passengers. They left school between 11:30 a.m. and noon to drive to Charleston Area Medical Center in Charleston. Claimant Dianna Bowman dropped off her friend Gary at his home just a few miles from the school. Tracy Miller remained in the vehicle with Ms. Bowman as a front seat passenger. They proceeded driving on Route 3 until reaching the intersection of Route 3 and Route 214. At the intersection, claimant Dianna Bowman had a yield sign at which she brought the vehicle to a complete stop. She then turned onto Route 214 and proceeded northbound for a short distance before reaching a curve. She estimated that she was traveling between thirty-five and forty miles per hour in a fifty-five mile per hour zone. She rounded the curve safely, but just as she was coming out of the curve, a white truck allegedly crossed the center line and forced Ms. Bowman's vehicle partially off the road where she proceeded onto a gravel parking lot owned and maintained by the respondent. Claimant Dianna Bowman's passenger also testified that she observed the white truck cross the center line and come about one foot into Ms. Bowman's lane of travel. Ms. Bowman stated that it was approximately a foot to a foot and a half into her lane. She testified that she had very little room to maneuver and that when she did go off the road just slightly, her tires hit the gravel. She attempted to maneuver the vehicle back onto the road, but the vehicle kept sliding out of control and "fish-tailing" in the gravel. The vehicle then slid sideways over a large culvert hole on the gravel lot and flipped over on its top. Apparently, one of the tires caught the hole causing the vehicle to flip over on its top and slide a significant distance from the hole where it came to rest. Both claimant Dianna Bowman and Ms. Miller were temporarily trapped in the vehicle. Ms. Bowman was eventually able to climb out of the vehicle on her own. She immediately went and helped Ms. Miller out of the vehicle. Fortunately, Ms. Miller was not injured. However, Ms. Bowman had a serious cut on the side of her head which was bleeding significantly. She also had a less serious cut to her left middle finger which was also bleeding.
Ms. Bowman further testified that she had driven this section of road many times and was very familiar with it. She stated that she had to drive over this section of road to get to most places due to the location of her home.
Claimant Ricky Bowman testified that he closely examined the culvert hole at issue and estimated it to be approximately six feet deep and approximately eight to ten feet in diameter. He described the hole as being only four feet from the edge of the road. In addition, he introduced photographs into evidence that depicted thick, high grass, weeds, and shrubbery that had grown around the culvert hole. The photos also demonstrated that this hole was not visible to the traveling public due to the high weeds, grass, and shrubbery. Mr. Bowman opined that it was feasible to place a metal grate of some kind over this hole, or, in the alternative, that it was feasible and safer for the respondent to continue running the culvert pipe underground in which case there would be no hole at all.
West Virginia Senior State Trooper David Michael Lee was the investigating police officer at this incident. He was first notified of the incident at 1:00 p.m. and arrived on the scene at 1:15 p.m. He indicated that the time of the accident was at approximately 12:20 p.m. Trooper Lee took measurements, photographs, and statements from all individuals involved including the two eye witnesses, and then put his findings in the West Virginia Uniform Traffic Accident Report. According to the accident report, the weather at the time of the incident was cloudy, but there was no rain and the road condition was dry. Trooper Lee did not testify to or indicate in his accident report, what caused this incident. He did list as a "contributing circumstance" the driver's failure to maintain control of the vehicle. However, he testified that the reason he put this down was the mere fact that she lost control of the vehicle and left the roadway. Trooper Lee did not know at what speed Ms. Bowman was traveling. He testified that her vehicle stopped sliding between 75-90 feet from the culvert hole. He based this testimony from his drawing in the accident report, which while not to scale was still adequately drawn by using relevant and helpful reference points. Trooper Lee was unable to substantiate Ms. Bowman's claim that another vehicle forced her off the road either by eye-witness testimony or other evidence obtained from the scene. Finally, Trooper Lee also stated that the culvert had "some weeds and shrubbery around it."
Darrell Quintrell, an employee of the respondent at the Yawkey substation, testified that he was operating the end-loader when he heard a large amount of gravel hitting the back of the machine very hard. That caused him to turn around to see claimant's vehicle lying on its top. He was the first to arrive on the scene and he helped the girls walk across the road to the substation office to help stop Ms. Bowman's bleeding and to try to calm them until the ambulance arrived. Jeff Hughes, also an employee at the Yawkey substation, witnessed the incident and had already called 911. Mr. Quintrell testified that he encouraged Ms. Bowman to call her father which she reluctantly did. According to Mr. Quintrell, she was afraid to call him because she had damaged his car. Ms. Bowman and Ms. Miller were transported by ambulance to Charleston Area Medical Center General Division where they were treated and released.
At the location of this incident, State Route 214 is a two-lane road with a yellow center line and white lines on each edge. It is a first priority, blacktopped highway with a width of approximately eighteen feet six inches. According to Larry Pauley, the Lincoln County Supervisor for respondent, the hole where the culvert is located is on respondent's property. The Yawkey substation is adjacent to State Route 214. Directly across Route 214, respondent owns a lot for the storage of gravel and salt that is adjacent to the road and this lot is also part of the substation. There is a culvert pipe with its inlet end on respondent's headquarters lot which passes beneath the highway and then through the gravel/salt storage lot to the creek. The culvert pipe itself is an 18 inch or 24 inch diameter pipe and it may be thirty to forty feet in length. The culvert hole is located on the gravel/salt storage lot. He described the culvert hole as being some six feet from the edge of the pavement of Route 214. He explained that this is actually a "clean-out" or a drop inlet to provide an opening where employees have access to the culvert pipe for cleaning it out. The culvert pipe is cleaned out from that hole on an as needed basis by respondent's employees. There is no grate over the culvert hole. It is his opinion that a grate is not needed over the culvert hole as the six foot area between the hole and the Route 214 is sufficient for travelers on the highway to make a recovery.
Jeffrey L. Hughes, an equipment operator for respondent in Lincoln County, testified that he was driving a dump truck from respondent's gravel storage lot at the time of this incident. His truck had just been loaded with gravel by Mr. Quintrell who was operating the end-loader. Mr. Hughes testified that after being loaded with gravel he started driving south on Route 214. He testified that he drove into the curve at issue in this claim and all the sudden he heard "a commotion." This caused him to look in his rear view mirror where he saw a car fishtail on the gravel parking lot, hit the culvert, and then turn over. Mr. Hughes did not notice what type of vehicle it was that had just passed him. He stated "it was just any other vehicle as far as when I passed the vehicle." He does not recall seeing any other vehicles on the road other than his and the one that went off the road. He testified that his vehicle was not across the yellow line into the other lane. Furthermore, he stated that his truck was loaded, he had just started driving from respondent's lot, and he had not gained much speed when he observed claimant's accident occurring.
In the instant claim, the Court is of the opinion that the respondent may have been negligent in regard to the location and maintenance of the hole on its property adjacent to Route 214; however, this was not a proximate cause of the accident. To be actionable, respondent's negligence must be a proximate cause of the claimant's injuries. Tracy v. Cottrell, 206 W.Va. 363; 524 S.E.2d 879 (1999); Louk v. Isuzu Motors, Inc., 198 W.Va. 250; 479 S.E.2d 911 (1996); Roush v. Johnson, 139 W.Va. 607, 80 S.E.2d 857 (1954). Drivers also have a duty of reasonable care in operating their vehicles while driving on West Virginia's highways. The evidence established that claimant Dianna Bowman did not properly maintain control of her vehicle under the circumstances. The evidence as to whether or not some other vehicle did, in fact, cross the center line and force the claimant off the road is contradictory in the record. However, regardless of the answer to this issue, the facts are such that claimant Dianna Bowman had sufficient time and space while on the gravel lot to bring the vehicle under control. A reasonably prudent driver would have been able to maintain control of the vehicle. The Court concludes that claimant Dianna Bowman was negligent in her failure to maintain proper control of the vehicle she was operating on Route 214 and that such negligence was the sole proximate cause of the accident. Therefore, claimants Ricky E. Bowman and Dianna Bowman may not make a recovery in this claim.
In accordance with the finding of facts and the conclusions of law as stated herein above, the Court is of the opinion to and does deny this claim.
Claim disallowed.