OPINION ISSUED JULY 21, 1987
ESTA M. ADKINS, ADMINISTRATRIX OF THE
ESTATE OF CECIL ADKINS, JR., DECEASED
DEPARTMENT OF HIGHWAYS
Robert Losey, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
Claimants Esta M. Adkins brought this action as Administratrix of
Estate of Cecil Adkins,
Jr., her husband, who dies in a single-vehicle accident on August
The accident in which claimant's decedent died occurred on Mud
Road, also known as
Little Seven Mile Road. The road is designated as Local Service
and is located near
Huntington, in Cabell County. The vehicle involved in the incident
automobile owned by claimant and/or the decedent. The evidence is
clear as to whether
Cecil Adkins, Jr. or the other individual in the vehicle, Ernest
was operating the vehicle.
The vehicle went over an embankment, whereupon it struck an exposed
line owned by
Cumberland Gas Company. The gas line apparently ruptured and
with the flames
engulfing the interior of the vehicle. Cecil Adkins, Jr. and Ernest
were burned beyond
recognition and died.
Claimant alleges that the failure of respondent to properly mark
section of Mud River
Road, where there was no berm and where an embankment was at the
portion of the road, constituted negligence which was the proximate
cause of the death of
claimant's decedent. Claimant alleges damages in the amount of
The evidence revealed the following facts. Claimant's decedent,
Adkins, Jr., and a
coworker, Ernest Ball, were employees of Tri-State Materials
Corporation. Mr. Adkins was the
pilot of a tugboat for the corporation. On the day of this
Adkins left his home in
Huntington, West Virginia, at approximately 5:20 a.m. to go to work
Lesage, West Virginia.
He picked up Ernest Ball, and the two of them intended to pick up
another coworker, Sam
Chapman, who lived on Mud River Road approximately one mile from
site of the accident.
Claimant was unfamiliar with this road having last been in the area
approximately five or six years
previous to 1976. At the scene of the accident there was a section
road which was subject to
slide conditions. The ground adjacent to the edge of the pavement
away until the edge of the pavement was at the break of the slide
There was no berm.
Weeds had grown up at the edge of the pavement and extended above
approximately eighteen inches. In an attempt to remedy the slide
problem, the respondent had
widened the road on the left side of the orad by grading along a
hillside. This widened portion of
the road was also paved. The stretch of road before this particular
was curved and on an
upward grade. There were three signs on the stretch of road
the side area. One of
the signs was a "ONE LANE ROAD AHEAD" sign, one was a reverse curve
sign, and one
was a 45 mile-per-hour speed limit sign. There was also a small
barricade sign before the curve
in which the slide was located. There is no evidence as to actual
barricade signs or warning
paddles at the point of the slide area. A charred paddle was found
beneath the vehicle, but it is
now known if the paddle was in place at the time of the incident.
Adkins vehicle, for reasons
unknown, went off the paved portion of road at the slide area. The
line which was exposed
was struck by the vehicle and ruptured, resulting in the death of
On the date of the accident, respondent's employee, Ralph Aills,
sign shop supervisor for
District Two, was assigned the task of reviewing the signs on Local
Service Route 19 at the
accident scene. He filed a report which is in evidence in this
His report contained a
diagram of the signs and the relationship of the signs with the
site. The first three signs
were fairly close together. The first sign is the "One Lane Road
sign; next is the reverse
curve sign; then a 45 mile-per-hour speed limit sign. Approximately
feet further towards the
accident scene was a small orange and white barricade paddle
the beginning of the
curve and approximately 300 to 500 feet from the slide area. The
portion of road was 20
to 22 feet wide in the curve where the slide was located. As
previously, the road has
been carved out of the hillside on the left side.
It is the opinion of the Court that the respondent fulfilled its
to maintain the road in the
area of the slide by widening the road for the travelling public.
was also evidence that the
respondent has placed barricade paddles at the side area although the
evidence is unclear as to
whether a barricade paddle was present at the time of this
The reason the driver of the vehicle proceed off of the travel
of the road is unknown.
This Court will not resort to speculation. See: Arthur vs. Dept. of
Mental Health, 12 Ct.Cl.
124 (1978), and Charles vs. Dept. of Highways, CC-83-356, (Dec. 12,
The Court is not unmindful of the tragedy which occurred, nor of
inherent impulse for
compassion. However, the Court, for the reasons stated above, is of
opinion to, and does,
deny this claim.