OPINION ISSUED NOVEMBER 24, 1986
BUFORD E. MARKER
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
On September 22, 1985, the claimant was proceeding up the hill
the Gorman Shelter in
Coonskin Park, Kanawha County, in his 1981 Olds 98 Regency. His
dropped off the
berm of the road resulting in the damage to the vehicle. The rim of
vehicle was damaged and
the front end was knocked out of alignment in the amount of $47.79.
claimant had originally
filed the claim with the State Road Commission as the party
The Court sustained
claimant's motion to amend the respondent State agency to the
The claimant testified that he, his wife, and three children were
proceeding in Coonskin Park to
attend an Olin Company picnic at the park. It was approximately
p.m. and the weather was
clear. As claimant's vehicle passed another vehicle, his vehicle
off the road onto the
berm. There was a slight difference in elevation between the
the paved surface and the
surface of the berm. It is a blacktop surface and is ordinarily
enough for two vehicles to
pass. There was no center line on the road. The place at which
claimant's vehicle left the
highway was in a straight area, and the claimant was travelling at
miles per hour.
The claimant alleges that the oncoming vehicle forced him to drive
vehicle off the travel
portion of the roadway. The allegation that the berm was not even
the surface of the road
does not establish negligence on the part of the respondent. The
negligence, if any, may well
have been the actions of the driver of the oncoming vehicle,
claimant onto the berm. For
these reasons, the Court disallows the claim.