OPINION ISSUED FEBRUARY 3, 1989
WILLIAM RAY FITZWATER
DEPARTMENT OF HIGHWAYS
J. Michael Anderson, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
On August 29, 1984, claimant was operating an automobile, titled
father's name, on
State Route 92 at Callison Curve, Greenbrier County. He was
in the northbound lane.
His vehicle apparently struck gravel, whereupon he lost control,
vehicle crossed the
southbound lane and proceeded over a hill and dropped approximately
feet into a field.
Claimant seeks $55,000.00 for damage to the vehicle, lost wages,
pain and suffering.
Claimant alleges that the site of the accident was not identified
signs or other warning
devises, that there was no guardrail, and that respondent's failure
maintain the same
constitutes negligence. Respondent contends that the proximate
the accident was
claimant's negligence and that the erection of guardrails is
discretionary rather than mandatory.
Claimant testified that it was foggy and dark when he left his
Lewisburg, at about 4:45
a.m., to travel to Vepco in Bath County, Virginia. He was an
admitted that he was familiar with this route as he had been
it to work for four and
one-half months. He estimated his speed to be 25 to 30 miles per
the time of the
accident. Although the vehicle was titled in his father's name,
had possession of the
vehicle and drove it daily. At the time of this incident, he was
of any defects in the
automobile. He was 20 to 21 miles from his home when the accident
occurred. He was in the
right-hand, northbound travel lane when he heard the gravel. He
remembers only the sound of
the gravel, and no other specific details of the accident. He
"... since it was light fog, I
could probably see a couple of car lengths or so ahead of me."
Ira Young, who lives about twelve miles up Route 92 beyond Alvon,
testified regarding the accident site. He stated that he formerly
a school bus for 28 years.
He experienced sliding at the curve, and, in fact, testified,
when you're going north and go
around the curve, it elevates to just throw you over the hill. I've
going south on that curve
on that side and there's been wrecks there and you have to stop and
ice on the road, your
school bus will just slip right over just setting still. I've done
lots of times." He indicated that
he had contacted respondent concerning the lack of guardrails in
Claude Blake, an investigator for respondent, testified that he
personal knowledge as
to which signs were present at the site of the accident in August,
He agreed that the
guardrails currently in placed were not present at the time of the
accident, and he confirmed that
it is a 50-foot drop from the road to the field where the claimant
the automobile came to
Two certified engineers with respondent agency testified that
had been given to
respondent. Charles Raymond Lewis, III, Planning and Research
stated that the respondent was aware that there had been accidents
to August 1984 at
Callison Curve which involved vehicles going over the embankment.
respondent was also
aware that petitions had been filed and letters of complaint had
written to the respondent
concerning the Callison Curve. Robert C. Ware, an engineer for
respondent in District 9, stated
that the respondent's office in Lewisburg was aware, prior to
1984, that complaints
were made concerning the safety of Callison Curve.
The Court finds that the particular facts of this claim establish
negligence on the part of the
respondent. Respondent failed to eliminate an unusual hazard which
existed over a period of
years. This hazard caused injury and damages to persons and
lawfully using the
highway. This failure constitutes a moral obligation upon which
claim should be allowed.
Spradling vs. State Road Comm'n., 5 Ct.Cl. 77 (1949). However,
by his own
testimony, was travelling at a rate of 25 to 30 miles per hour. In
opinion of the Court, this
speed was too fast for the conditions then and there existing.
Therefore, the Court finds that
claimant was comparatively negligent. The Court will reduce the
claimant by ten per
cent to reflect this negligence.
Dorinda Fitzwater, claimant's wife, testified concerning claimant's
injuries. He spent 19 days in
the hospital. He missed four and one-half months of work. For the
two months, he remained
completely bedfast, and was unable to do anything without
was able to walk with
a walker when he became ambulatory. He then progressed from the
to the use of a cane.
His injuries included, among others, a pelvis broken in several
a collapsed lung, an injured
rib, and a ruptured bladder. He required a large number of
Therapy treatment assisted
him in learning to walk again.
Claimant testified that he was trained as an electrician, but he
longer able to pursue that
livelihood as he cannot carry the necessary tools. He is currently
employed as a foreman on
projects, but he pointed out that if a foreman's position is not
available, it is his opinion that he
would be unable to perform as an electrician. He is presently
as a construction
foreman. Claimant also testified that his recreational activities
present are limited. He is unable
to romp and play with his two sons, nor is he able to hunt or
Claimant's evidence as to damages indicated medical expenses in
amount of $22,476.58 of
which claimant is making a claim for $1,100.00. Claimant testified
his work loss was in the
amount of $14,500.00. The Court is of the opinion that claimant's
damages are in the amount of
$35,600.00 which will be reduced by ten per cent for comparative
negligence. The Court,
therefore, makes an award to claimant in the amount of $32,040.00.
Award of $32,040.00.