OPINION ISSUED APRIL 30, 1986
MAYNARD KNOTTS, INDIVIDUALLY, AND MAYNARD KNOTTS, AS
GUARDIAN AND NEXT FRIEND OF TRACY KNOTTS, AND ROBERT KNOTTS,
DEPARTMENT OF HIGHWAYS
TONI GIANFRANCESCO, INDIVIDUALLY, AND TONI GIANFRANCESCO, AS
PERSONAL REPRESENTATIVE, NEXT FRIEND, AND NATURAL PARENT OF
DUANE GIANFRANCESCO, A MINOR, (DECEASED)
DEPARTMENT OF HIGHWAYS
DALE F. MAYS, INDIVIDUALLY
DEPARTMENT OF HIGHWAYS
P. Lee Clay, Attorney at Law, for claimants.
Andrew Lopez, Attorney at Law, for respondent.
These three cases, arising out of the same event, were
pursuant to the agreement
of the parties' counsel. The claims arise out of an automobile
which took place on
September 21, 1979 on U. S. Route 250 near Glovers Gap, Marion
Claimant Dale Mays alleges he was injured in the accident. Claimant
Maynard Knotts seeks
damages for the destruction of his vehicle and for the death of his
spouse, Wanda Jean Knotts,
the driver of the vehicle. Toni Gianfrancesco's minor child, Duane
passenger in the vehicle, was also killed.
It is alleged that the respondent failed to repair certain
failed to post adequate
warning signs) and failed to maintain a guardrail at the scene of the
accident. The accident
occurred on September 21, 1979 at approximately 10:15 p.m. Wanda
Knotts was driving
her husband's 1971 Oldsmobile in a southerly direction on U.S.
250. The passengers in
the car were claimant Dale F. Mays, Duane Gianfranceso, and another
minor, Daniel Smith. The
vehicle approached a curve, went off the road, and landed upside
some distance from the
roadway. Claimants assert that respondent's negligence, with
potholes, the guardrail,
and the absence of a warning sign, was the proximate cause of the
The action was bifurcated by leave of Court. A hearing on the
liability was held on
January 13, 1986. Claimants presented evidence which was limited
entirely to establishing the
existence of the "defective" road conditions alleged.
Claimants established that there was no warning sign at the
the curve and that
some of the posts on the guardrail showed signs of rotting. There
conflicting evidence as to
the existence, size, and location of the alleged potholes.
It is not necessary in this case for the Court to make a finding
respect to the alleged road
conditions, because claimants failed to produce a scintilla of
on the issue of proximate
cause. Proximate cause is a vital and essential element of a
case, and the claimant has
the burden of proving it to justify recovery in any action based on
Claimants have not established that the alleged road conditions
causally related to the
car's leaving the highway. The mere existence of the alleged road
conditions, if proven, does not
give rise to a presumption of liability, and claimant's are
demonstrate that "but for"
the conditions the accident would not have occurred.
In the present case, claimant did not treat the issue of
Respondent, on the other
hand, suggested two theories of causation: mechanical defect in the
automobile and physical
defect of the driver. Moreover, the record indicates that it was
on the night of the
accident and the roads were wet. Under the circumstances, the Court
unable to infer, to the
exclusion of all other reasonable inferences, that the alleged road
conditions were in any wise the
cause of the accident on which the claims are predicated.
Situations may arise where negligence, on the part of the
hazards existing over a period of years and causing injury and
to persons and vehicles
lawfully using said highway, presents a moral obligation for which
claim should be allowed.
Spradling vs. State Road Commission, 5 W.Va. Ct.Cl. 77 (1949).
herein have not established that the alleged road conditions were
unusually hazardous so as to
warrant a finding that the State was under a duty to post a warning
or maintain a guardrail.
Generally, the State is under no such duty, since the posting of
markers and the erection of
guardrails is discretionary. Cooper vs. Department of Highways, 8
Ct.Cl. 178 (1970);
Chartrand vs. State Road Commission, 5 W.Va. Ct.Cl. 98 (1950).
Claimants have not established that respondent was under a duty to
erect a warning sign or
maintain a guardrail at the scene of the accident. They have not
established a breach of duty with
respect to the potholes since the existence, size, and duration of the
alleged potholes is unclear.
They have not established causation with respect to any of the
alleged road conditions.
Accordingly, no liability on the part of the respondent being
the Court is of the opinion
to and does disallow the claims.