OPINION ISSUED NOVEMBER 24, 1986
LARRY J. WALLEN
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
This claim was originally filed in the names of Larry J. Wallen
J. Wallen, his wife. At
the hearing, the Court amended the style of the claim to reflect
sole owner of the vehicle.,
Larry J. Wallen, as claimant.
The claimant, on January 22, 1986, was operating his vehicle, a
Mercury Cougar, in a
southerly direction on U.S. Route 119, also known as Logan
or near an
intersection of State Route 10 when rocks fell from a cliff. One of
these rocks struck the
claimant's vehicle as it passed. The damage totalled $522.80, of
the claimant's insurance
paid $138.00. The claimant testified that U.S. Route 119 is a
highway with a median.
On the day of this incident, the roadway was damp. It was
12:00 noon. The
claimant was transporting his wife from her place of employment,
Save Rite Pharmacy, to the
post office in Logan. He was proceeding at approximately 35-40
hour. He was in the
right lane of the two southbound lanes. The claimant observed that
rocks fell from the cliff,
whereupon he switched his vehicle to the left lane to avoid these
A third unobserved rock
struck and damaged the vehicle in the right, rear quarter panel.
claimant testified that he
passed the cliff in travelling this route, and rocks falling from
cliff were a common occurrence
at this location. Three to four weeks prior to his accident, the
claimant observed the
respondent's crew cleaning up some rocks which had apparently come
the hill and were
blocking all four lanes of the highway.
The claimant described the concrete barriers which the respondent
erected between the
base of the cliff and the berm of the highway. On this particular
occasion, the rock which struck
the claimant's vehicle missed the barrier. The respondent was aware
the propensity of the
rocks to fall from the cliff at this location as evidenced by the
existence of the concrete barrier.
The barriers indicate that the respondent has taken measures to
the dangerous condition
of the falling rocks. The Court, then, is unable to find negligence
the part of the respondent,
and the claim must be denied.