OPINION ISSUED FEBRUARY 19, 1986
DEPARTMENT OF HIGHWAYS
Dwight Coburn, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
On March 22, 1985, at approximately 3:30 or 4:00 p.m. claimant's
vehicle, a 1984 Chevette,
ran over a rock which had rolled out into the road. Claimant's son,
driver of the vehicle, was
travelling to his home from Marshall University on State Route 10
Lincoln County. The vehicle
sustained damage in the amount of $166.80. The claimant, Arthur
had originally filed
this claim in his own name and that of his son, Dwight Coburn.
the record reflects that
Arthur Coburn is the titled owner of the vehicle. The Court, upon
amended the style of the claim to dismiss Dwight Coburn as a party
Claimant's son testified that he was coming out of a curve and
to see the rock. He
travelled that route three or four times weekly, but stated that it
not a rockslide prone area.
He estimated the rock to be the size of a basketball.
This Court has held that the unexplained falling of a rock or
into a highway without a
positive showing that respondent knew or should have known of a
dangerous condition posing
injury to person or property is insufficient to justify an award.
Hammond vs. Department of
Highways, 11 Ct.Cl. 234 (1977). There was no evidence in this case
such notice to or
knowledge on the part of respondent. Therefore, the Court must deny