OPINION ISSUED FEBRUARY 19, 1986
LOVA M. STOUT AND M. WOOD STOUT
DEPARTMENT OF HIGHWAYS
Gregory W. Evers, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
The claimants seek an award of $20,000.00 for personal injuries,
medical expenses, and
damage to their 1966 Plymouth automobile. Claimants were travelling
northbound on Route 20
at Gum Mountain near Buckhannon, Upshur County, on February 10,
Wood Stout testified that a large boulder rolled out in front of
and their vehicle collided
with it. He also testified that rocks have been falling in this
particular area since the 1950's as he
has lived there with his wife since that time. Claimant Lova Stout
testified "there were
always rocks falling down off of that hill."
R. F. Heflin, General Foreman for respondent in Upshur County,
testified that he was unaware
of any rock fall signs in the area of the accident in February
the day before the
accident, respondent's crew was plowing snow. He said that a crew,
time to time, would
go down to Gum Mountain and pick up all of the loose rocks and
road. He was unable
to document, through records maintained by respondent, that any of
respondent's crews had
worked on Gum Mountain on February 10, 1976.
This Court has held that the unexplained falling of a rock or
into a highway without a
positive showing that respondent knew or should have known of a
dangerous condition posing
injury to person or property is insufficient to justify an award.
Hammond v. Dept. of Highways,
11 Ct.Cl. 234 (1977). There was no evidence in this case of such
to or knowledge on the
part of respondent. Therefore, the Court must deny the claim.