OPINION ISSUED NOVEMBER 19, 1985
DEPARTMENT OF HIGHWAYS
Nancy Jane Scardina, appeared on behalf of claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
This claim was originally filed in both the names of Joe Scardina
and Nancy Jane Scardina, but when testimony established that the
damaged vehicle, a 1973 Plymouth, was titled solely in the name of
Joe Scardina, the Court amended the style of the claim to reflect
Nancy Jane Scardina, claimant's wife, was operating the vehicle in
a northerly direction on Route 19, in Morgantown, Monongalia
County, on August 16, 1984, at about 11:45 a.m., when her mother,
seated in the right front seat, pulled the ashtray out and it
dropped to the floor. There was a lighted cigarette in it. Mrs.
Scardina pulled off to the berm on her right, opposite the
Coliseum, and stopped to retrieve the ashtray and lighted
cigarette. While doing this, her mother suggested walking the
children to a fruit stand some distance behind them. Instead, Mrs.
Scardina elected to back the car, on the berm, to the fruit stand.
In so doing, she backed the car into a growth of weeds three to
four feet tall. As she did so, she backed over the stump remains of
a metal light pole, hidden by the weeds. The car was hung up. A
wrecker removed it. The car seemed to Mrs. Scardina to be
driveable, and she drove to a restaurant' nearby, at Star City, and
stopped for coffee. Returning to the car, she saw a puddle of oil
but thought it might be from a car previously parked there. As she
drove to Clarksburg, her home, a noise grew louder. She took her
mother and granddaughter to their respective homes and then drove
to the Department of Highways garage for Harrison County where her
husband, the claimant, was employed. He heard his car arriving. He
had her drive it to some office, and then on home, barely making
it. Inspection later revealed leaking transmission seals and damage
to the new bumper, floor pan, muffler, tail pipe, etc. Estimates of
repair and the wrecker bill were in the total amount of $747.94,
the amount claimed.
James M. Beer, II, respondent's Area Maintenance Engineer for
Monongalia, Preston and Taylor counties, testified that the object
which she struck was what was left of a 30-foot light pole owned by
the City of Morgantown; that Monongahela Power Company had the responsibility for its maintenance.
The Court perceives no negligence on the part of the respondent.
It is the opinion of the Court that when Mrs. Scardina voluntarily
backed the car into the patch of weeds three or four feet tall, she
assumed the risk that something, hidden from her view by the weeds,
might be there.