OPINION ISSUED MAY 3, 1988
STEVEN D. CLOWER
DEPARTMENT OF HIGHWAYS
Gordon T. Ikner, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
Claimant seeks an award in the amount of $50,000.00 for personal
injuries incurred when his
1981 Omni Miser was involved in an accident on West Virginia Route
West Virginia. The accident occurred on February 27, 1986. Claimant
alleges that respondent's
negligent maintenance of the road was the proximate cause of the
Route 60/6 is also known as Otter Creek Road. It is a dirt and
road off of Route 60
and ending at I-64. During wintertime periods of freezing and
ruts develop in the road
from use by a school bus and personal vehicles of some 16 families
living along the road.
Claimant's home, where he had lived for about 11 years, is about
a mile from Route 60.
Early in the morning, he had taken five school children out to
to a Christian school bus
stop. He was returning to his home, at about 8:30 a.m., when his
accident occurred. He
described the road as being about 14 feet wide. He said he had
sharp curve and was
going up a gentle hill, at a speed of about 15 to 17 miles per
staying out of the ruts, when
his wheels slipped into the ruts and the front of his car hit a
which protruded into the side of
the roadway. His car was damaged beyond economical repair. His head
the rearview mirror,
and he suffered a severe scalp laceration. On cross examination, he
admitted that he might have
been going 20 miles per hour. Respondent's investigator, Claude
testified that the
claimant had told him, on July 11, 1986, that he had been
miles per hour at the time
of his accident.
Claimant and his wife testified of making complaints to respondent
concerning the condition of
the road during the weeks before the accident.
It is obvious to the Court that Route 60/6 is a secondary road;
primary, more heavily
travelled roads, must be given priority in maintenance by
that there is hardly
anything which the respondent could have done, in view of time,
and budget limitations,
to alleviate the winter condition of Route 60/6. The Court,
cannot find the respondent
negligent. The Court is of the opinion that the claimant was
in operating his vehicle at a
speed greater than was reasonable under the circumstances then and
existing and that this
was the circumstances then and there existing and that this was the
proximate cause of his
accident and injury.