J. Robert Rogers, Attorney at Law, for claimant.
Andre Lopez, Attorney at Law, for respondent.


This claim was originally filed in the name of Clyde McPherson,
Administrator of the Estate of
Lossie J. McPherson, deceased, and Clyde McPherson, individually. At the
hearing, counsel for
the claimant informed the Court that Clyde McPherson is now deceased,
and counsel requested
that the style be amended to reflect Everett C. McPherson as
Administrator of the Estate of
Clyde McPherson, deceased and Everett C. McPherson as Administrator DBN
of the Estate of
Lossie J. McPherson. The Court so amended the style of the claim.

The decedents were husband and wife. On June 4, 1978, Clyde and Lossie
McPherson had
been visiting at the home of their son, Everett C. McPherson. when they
left their son's home at
3:00 to 3:30 p.m. to return to their home in Nitro, West Virginia, they
proceeded on Manilla
Ridge Road, also known as State Route 5, in Putnam County. Clyde
McPherson was operating
his 1978 Blazer and Lossie McPherson was a passenger. The weather was
clear and the road
was dry. the McPherson vehicle was being approached by an Oldsmobile in
the opposite lane
which was operated by Stephen Lazear. The McPherson vehicle went onto
the berm and then
dropped off an embankment, whereupon it rolled into pastureland. Lossie
J. McPherson died as
a result of the accident. Clyde McPherson was injured. He was taken by
ambulance to Thomas
Memorial Hospital where he remained for four days. This claim is for the
alleged damages in the
amount of $325,000.00.

Claimant alleges that this accident occurred due to the failure of
respondent to maintain the
berm and shoulder area of Manilla Ridge Road in a proper manner.
Claimant asserts that the
term consisted of fly ash material which was unstable and gave way when
the McPherson
vehicle was driven onto the berm in an attempt to provide room for the
approaching vehicle to
safety pass.

Testimony in the claim revealed that the paved portion of Manilla Ridge
Road at the point of
this accident was approximately 15 feet in width. the berm was 18 to 20
inches in width and
consisted of fly ash material and tar. There were weeks and grass
growing beside the berm area.
A crop-off from the berm of approximately 10 feet led to pastureland

The witnesses to the accident testified that the driver of the
McPherson vehicle appeared to
drive the vehicle onto the berm and then the vehicle went over the
drop-off and rolled into the
pastureland. The reason for the action taken by the driver was not
established through the
testimony of the witnesses.

The testimony also revealed that the respondent had not received any
complaints concerning
problems that travelers of Manilla Ridge road may have had with the berm
at the location of the
accident, which is the subject matter of this claim.
From all of the evidence presented to the Court in this claim, the
Court is unable to ascertain
the reason for Clyde McPherson to drive his vehicle onto the berm at the
accident site. The
paved portion of the road was wide enough for two vehicles to pass. This
Court has held that it
will not resort to speculation in determining liability of the
respondent. The Court has also held
that a traveler on the State's highways travels at his own risk and uses
the berm at his own risk.
See: Sweda vs. Dept. of Highways, 13 Ct.Cl.249 (1980); Hedrick vs. Dept
of Highways, 15
Ct. Cl. 288 (1985); and Cole vs. Dept. of Highways, CC-82-292, Jan. 17,

The Court has been unable to determine negligence on the part of the
respondent in the
maintenance of the berm on Manilla Ridge Road. Whether the berm gave way
or whether the
driver of the vehicle drove off the berm has not been established by the
evidence herein.

Therefore, the Court finds in the claim that there was no apparent
reason for the McPherson
vehicle to veer onto the berm of Manilla Ridge Road. In accordance with
prior decisions of this
Court, the claim must be denied.

Claim disallowed.