OPINION ISSUED SEPTEMBER 25, 1986
J. W. BAUER
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
Claimant was operating his 1981 Chevrolet automobile in a westerly
direction on February 1,
1985, between 8:00 and 9:00 p.m. on MacCorkle Avenue at 58th
Kanawha City, when
the automobile struck the concrete curb of the median. Claimant
originally filed the claim with the
respondent being the West Virginia Court of Claims. The Court, on
own motion, amended
the style of the claim designating Department of Highways as
Claimant was alone in
his vehicle and proceeding west when this incident occurred. The
with the curb resulted
in damage to the tire of the vehicle in the amount of $54.38.
Claimant testified that, at the time of the incident, it was dark
the pavement was dry. He
was proceeding at approximately 40 to 45 miles an hour to Kanawha
He stated that, at
this point, there is a turn lane. He inadvertently drove the
into the turn lane and
proceeded to drive into the curb of the median strip which was
the intersection. Claimant
alleges negligence on the part of the respondent in failing to
this section of the curb of
the median which has deteriorated. The corresponding curb on the
alternate side of the median
has been tapered off. The section of the curb which claimant's
struck is missing a big
chunk of concrete.
The record discloses that claimant was proceeding in the wrong
traffic and struck the
curb of the median; and that the accident was not caused by the
negligence of the respondent.
Accordingly, the Court is of the opinion to, and does, disallow the