Robert R. Sowa, Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.


Claimants brought this action to recover monetary damages which
resulted when claimant
George O. Winemiller was in an accident which came about when he drove a
vehicle into a large
hole caused by a slide. The vehicle belonged to William Hamilton and
Carolyn S. Hamilton, the
brother-in-law and sister of claimant George O. Winemiller.

Claimant Winemiller was travelling north on West Virginia Route 4,
Braxton County, in a 1982
Eagle station wagon on November 29, 1985, at approximately 3:15 a.m. At
that time he was
involved in a single vehicle accident which occurred when he drove the
vehicle into a
deteriorated section of the roadway where a slide had occurred. The
exact time of the slide has
not been established, but it was estimated to be between 2:30 and 3:30
in the morning. Claimant
Winemiller sustained injuries to his person and damages to the vehicle
for which claimants seek
$500,000 as compensation.

It is claimants' position that respondent was negligent in failing to
take action to rectify the
hazard or to provide warning devices to alert the travelling public of
the existence of the hazard
created by the slide. Claimants also allege that construction of the
Sutton dam, which was
completed in this area over twenty years ago, contributed to the slide.
Claimants contend that
the way in which the dam was controlled caused the earth beneath the
road to erode due to the
raising and lowering of the water in the Elk River. Therefore, claimants
contend that the
respondent knew or should have known that erosion would occur to the
earth beneath the road
which would eventually cause a slide such as the one that did occur in
the claim herein. The hole
created by the slide was approximately 20 feet long, 250 feet wide, and
30 feet deep.

In order to establish liability on the part of the respondent, there
must be either actual or
constructive notice and sufficient time for respondent to take
precautionary measures.
Respondent contends that its employees acted in an expeditious manner to
warn the travelling
public of the hazard created by the slide and that it did not have prior
knowledge that such a
slide would occur.

Testimony from Linda Pardue, the Braxton County dispatcher on November
29, 1985,
revealed that she first received information from an employee of the
Storck Baking Company
concerning the slide on Route 4 at 3:11 a.m. She immediately called
William Tucker,
respondents' Maintenance Supervisor for Braxton County, also at
approximately 3:11 a.m. or
shortly thereafter.

Mr. Tucker drove to the area of the slide. He estimated that he arrived
at the slide at
approximately 3:20 to 3:25 a.m. Upon his arrival, he saw a vehicle in
the hole created by the
slide but could not see if anyone was in the vehicle. There were two
unidentified people at the
slide. He gave them a flashlight and directed them to block the road. He
then proceeded to the
Sutton Go-Mart for help and returned to the scene. The EMS squad arrived
shortly thereafter.
He testified that there had been no problems in the slide area prior to
November 29, 1985, and
that there are neither weight restriction signs nor falling rock signs

Jack Bowen, Assistant Chief Deputy for Braxton County, testified that
he had driven over this
particular section of the road at approximately 2:30 a.m. At that time,
the slide had not yet

Joseph Denault, respondent's Assistant District Engineer for
Maintenance, testified that he had
travelled this route often, but he had never personally observed any
problems at the slide

Lydia Dorko, respondent's District One Design Engineer, testified that
she had not received
any complaints about the area of milepost 22.42 (the slide area) prior
to December 2, 1985,
when she inspected this particular area of Route 4.

It is the opinion of the Court that claimants have failed to establish
negligence on the part of the
respondent in this claim. The respondent did not have sufficient time to
reach the scene of the
slide to place warning devices prior to the time at which claimant came
upon the slide.
Respondent's employee proceeded to the slide area as soon as he was
notified of the hazard
and took steps to protect the traveling public to the best of his
ability. The Court further finds
that respondent could not have predicted the occurrence of this slide.
In a similar case,
(Motorists Mutual Ins. Co. vs. Dept. of Highways, OPINION ISSUED
December 3, 1988), the
Court found that "there was no evidence that respondent knew or should
have known of the
propensity of the road to collapse." In the instant claim, there was no
evidence that respondent
had knowledge of the propensity of this area of the road to collapse.
Although the Court is not
unmindful of the seriousness of the injuries received by claimant George
O. Winemiller, the Court
must deny this claim.

Claim disallowed.