OPINION ISSUED NOVEMBER 25, 1987
PATRICIA and ROGER LIMING
DEPARTMENT OF HIGHWAYS
James H. Coleman, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
Claimants, Roger and Patricia Liming, brought this action to
medical expenses, loss of
work, damages to a vehicle and loss of consortium, all of which
when claimant Patricia
Liming was injured in a vehicular accident on November 24, 1979. On
date claimant Patricia
Liming was proceeding in a westerly direction on U.S. Route 119,
known as W.Va. Route
10 or Logan Boulevard. She was driving a 1980 Mercury Capri. As she
passed a truck, she
attempted to return to the "slow" lane when her vehicle struck a
cover which was
standing upright in a perpendicular manner to the manhole itself.
vehicle struck the manhole
cover and flipped over onto its top whereupon Patricia Liming was
injured and the vehicle was
totalled. Claimants allege damages in the amount of $54,000.00
Counsel stipulated that there was negligence in the maintenance of
manhole. The only
question for the Court is the determination of responsibility for
maintenance of the manhole
and the manhole cover. Claimant contends that W.Va. Route 10 is a
highway and, therefore, the respondent is responsible for the
of the highways.
Respondent contends that the manhole and its cover are the property of
the City of Logan;
therefore, any negligence with respect to the manhole is the
responsibility of the City of Logan.
The respondent maintains that it is not liable to claimants for
received resulting from the
negligent maintenance of the manhole or its cover.
The Court, having considered the record and attendant exhibits, is
the opinion that the
respondent is liable for primary negligence in this claim. The
in question is a four-land,
concrete highway. The manhole is located in the middle of the two
westbound lanes. The
evidence revealed that the manhole cover was defective and that the
hazardous condition was
known to the respondent. The respondent failed to take measures to
the travelling public of
this hazardous defect on a State maintained highway. The respondent
failed to take
corrective action; or, in the alternative, to require the City of
to take corrective action to
alleviate the defect on the State maintained highway.
The Court is also of the opinion that claimant Patricia Liming was
negligent in her operation of
the vehicle as she failed to observe the manhole cover in a timely
manner to avoid striking it.
Therefore, the Court will apply the doctrine of comparative
and assess 10% of the
negligence to her.
As a result of the accident, claimant Patricia Liming suffered a
compression fracture of the first
lumbar vertebra and a lumbrosacral strain. A body cast was applied
period of four weeks
after which claimant wore a back brace for six weeks. At the time
this incident she was
employed as a nurse in the ICU division of Logan General Hospital.
was able to continue
working with limitations placed upon her for lifting no more than ten
pounds. At this time she still
experiences pain with her lower back. Her loss of work was in the
of $540.00. Her
medical bills were in the amount of $1,270.08. The loss of her
was covered by her
insurance carrier. The Court is disposed to and does make an award
$2,810.08 to claimant
Patricia Liming, which will be reduced by 10% to $2,529.07.
Claimant Roger Liming alleges loss of consortium for which the
makes an award to him
in the amount of $500.00.
Award of $2,529.07 to Patricia Liming.
Award of $500.00 to Roger Liming.