OPINION ISSUED MAY 3, 1988

JOHN KELLISON, ADMINISTRATOR OF THE ESTATE OF
RICHARD ALLEN KELLISON, DECEASED
VS.
DEPARTMENT OF HIGHWAYS

(CC-85-396)

Thomas R. Michael, Attorney at Law, for claimant.
Nancy J. Aliff and Andrew Lopez, Attorneys at Law,
for respondent.

GRACEY, JUDGE:

This claim was filed by John Kellison, as Administrator of the Estate
of his son, Richard Allen
Kellison, whose death occurred as the result of a single car accident at
about 1:00 a.m. on
January 3, 1984, on West Virginia Route 7/11, a single-lane roadway, in
Harrison County.
Richard Allen Kellison was driving his father's automobile, a 1965
Buick. West Virginia Route
7/11 is a dead end road. It proceeds up a hillside to two residences and
an elementary school.
The decedent had visited Nina Adkins, whose home was at the top of the
hill close to the dead
end. As decedent left the Adkins' residence, he proceeded on Route 7/11.
When he reached a
curve near the bottom of a hill, and just before a small bridge, the
vehicle did not make the turn
onto the bridge, and left the travel portion of the road. The vehicle
went off the road at the near
end of the bridge, landed on its roof and caught fire. The decedent's
body was found in the
vehicle.

The claimant contends that the failure of respondent to repair or
replace a missing guardrail on
the bridge constituted negligence which was the proximate cause of the
accident and resulted in
the death of the decedent.

Respondent contends that notice of the condition of the guardrail on
the bridge was not given
until December 28, 1983, which did not provide respondent sufficient
time in which to effect
repairs to the guardrail. The road has a very low traffic count. The
postmortem examination
record revealed that the decedent had a blood alcohol level of .21.
Respondent contends that
the proximate cause of the accident was the fact that claimant left the
travel portion of the
roadway, probably due to his blood alcohol level.

Trooper Greg W. Lemasters, of the Department of Public Safety,
testified about his
investigation of the accident. He arrived at the scene at approximately
1:30 a.m. He stated that
there was no evidence that the accident vehicle had been moved prior to
his arrival. He noted
that he had placed tire tracks on his diagram in the investigation of
the accident. The tires on the
left or driver's side were on the right side of the entrance to the
bridge. The tracks of the tires on
the right or passenger side of the vehicle did not come close to the
actual entrance to the bridge.

Several affidavits were submitted by claimant to establish notice to
respondent of the condition
of the bridge. The affidavits were by residents ft the area who had
informed the respondent
concerning the missing guardrail in the months of November or December
prior to the accident.

Worthy Devericks, Jr., was employed at Cheers, a local bar in the area.
He testified that he
had observed the decedent, who was employed at Cheers but was a customer
at the time, sitting
at the bar on the evening prior to the accident. He stated that the
decedent appeared to have
been drinking. As a member of the Harrison
County Rescue Squad, Mr. Devericks was also
involved with the accident scene. He stated that, from the tracks, it
appeared as though the
decedent's car drove right into the creek.

John V. Onestinghel, Jr., assistant district engineer in charge of
maintenance, testified that the
respondent had received two telephone calls on December 28, 1983,
concerning the guardrails
on the bridge. This was the first notice that he had received about the
bridge.

A careful review of all the evidence indicates that there is no
adequate explanation for why the
decedent drove or for other reasons went off the road and into the creek
instead of proceeding
onto the bridge. For the Court to grant an award, it would necessary for
the Court to resort to
speculation which this Court will not do. See: Cassidy vs. Dept. of
Highways, 15 Ct.Cl 177
(1984); Charles & Allison vs. Dept. of Highways, CC-83-356 (Opinion
issued December 12,
1986) and Eller vs. Dept. of Highways, 13 Ct.Cl. 402 (1981).

For the reasons stated hereinabove, the Court is of the opinion to and
does deny this claim.

Claim disallowed.