OPINION ISSUED DECEMBER 3, 1987
ROGER L. MICHAELSON, INDIVIDUALLY
AND ROGER L. MICHAELSON, AS NEXT FRIEND
OF LYNETTE MICHAELSON, A MINOR,
AND LOIS J. MICHAELSON
DEPARTMENT OF HIGHWAYS
Joseph C. Cometti, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
On September 29, 1983, at about 10:00 o'clock p.m., claimant Lois
operating a 1982 Ford Escort station wagon, titled in the name of
husband, claimant Roger
L. Michaelson, in a southerly direction on Coal River Road, also
as Secondary Route 3,
sough of St. albans in Kanawha County. She was accompanied by their
Lynette. They were on their way to their home, near St. albans,
Marmet. About a mile
after passing Indian Head subdivision, the vehicle crossed the
line and struck a
northbound old Ford three-quarter ton truck being operated by a
Michaelson has no recollection of what happened from the time she
the Indian Head
subdivision until she regained consciousness, pinned in the car,
the accident had occurred.
The claimants allege that a defect in the highway surface must have
caused her to lose control of
the car, thus causing the collision. An award of damages in the
amount of $59,097.61 was
The Michaelson vehicle had passed a small, broken blacktop area, along
the westerly side of
the pavement, just prior to the occurrence of the collision.
apparently believe that the
right front wheel struck, or passed through, this broken blacktop
and that this caused Mrs.
Michaelson to lose control.
Trooper N.K. Davis investigated the accident. He had noted the
blacktop and testified
that it extended no more than a foot into the travel portion from
edge of the highway. The
vehicles had come to rest generally beside each other, and both
north. The Michaelson
car was on the berm and embankment on the easterly side of the
The truck was mostly
in the northbound lane. The debris was on the right side of and
immediately behind the
truck. The collision had involved the front of the Michaelson car
the right front of the pickup
truck. He had measured the distance, diagonally across the
lane, from the broken
blacktop to the right front of the pickup truck, as 110 feet.
behind the pickup truck
were 26 feet long. He estimated the pavement width as 24 feet.
Mrs. Michaelson testified that, prior to the accident, she had
travelled the subject section of
the highway frequently, at least every other day, and she described
highway as being "a
hoovy road, dippy." She described the injuries she and her daughter
hospitalization and treatment, and the medical expenses incurred.
Dayton Price, the operator of the pickup truck, testified that he
travelling about 47 miles
per hour. He was going up a slight grade and was shifting down to a
lower gear. He described
the oncoming car as apparently being out of control, combing into
lane, then apparently
regaining control, then apparently out of control again.
Leo Francis Bodie, an Associate Professor of mechanical
West Virginia Institute
of Technology, was presented as a witness by the claimants. His
visit to the accident scene
had been o the day prior to his appearance as a witness. He had
the width of the
pavement and said it was just over 20 feet wide. In answer to a
hypothetical question, including a
number of facts and a number of assumptions, he indicated that the
Michaelson car might have
been thrown out of control if it had hit the broken pavement area.
conceded that the car
might have been out of control for a different reason.
There was no evidence that the Department of Highways knew or
have known of the
broken pavement edge. For the respondent to be held liable for
caused by such a
highway defect, the claimant must prove that the respondent has
or constructive notice of
the existence of the defect, had failed to correct it within a
reasonable time, and that the defect
was the cause of the damages. The State is neither an insurer nor
guarantor of the safety of
travellers on its highways. Adkins vs. Sims, 130 W.Va. 645, 46
(1947). The Court
cannot base an award on speculation or conjecture. The Court must,
therefore, deny this claim.