OPINION ISSUED JULY 8, 1987
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
On April 5, 1986, the claimant was operating his 1980 Oldsmobile
westerly direction on
West Virginia Secondary Route 42 between Midkiff and Mud River
Lincoln County. At
this site, on the right-hand side, there is a section of the road
has washed away. An
oncoming truck approached claimant's vehicle. The headlights from
truck deterred claimant
from seeing the deteriorated section of the road. As a result,
claimant's vehicle left the road,
went over a bank, and struck a rock cliff. There was damage to the
bumper, the right front
fender, and windshield of claimant's vehicle. Claimant seeks
for damage to the
vehicle and for personal injuries. Claimant alleges that respondent
negligent for its failure to
have warning signs and guardrails at this location.
At the time of this incident it was approximately 9:30 p.m. and
claimant was operating
his headlights on low beam. The road in question is a two-lane,
highway. The road
Scott Carl Adkins, Jr. testified that he viewed the accident scene
took photographs on
April 8, 1986. He stated "... the berm had gone off into the road, till
it met the road, and some
of the term was missing." He estimated that four to six inches of
pavement area itself was
Mr. Jackie Weaver, road supervisor in Lincoln County for
the time of this
incident, testified that respondent tried several times to stop the
slipping of this particular road.
He further testified that respondent frequently placed paddle-like
up right along the edge of
Mr. Roger Lovejoy, county maintenance supervisor in Lincoln County
respondent on April
5, 1986, testified that the road in question is a low priority or
secondary road. He stated that
prior to this incident, there were safety paddles in the break
on this road.
The evidence in this case reveals that the road in question is a
secondary road. The respondent
had placed warning paddle signs on several occasions prior to this
incident which indicates that
respondent did take safety precautions for the travelling public.
The Court is of the opinion that negligence on the part of the
respondent has not been
established and, therefore, the Court denies this claim.