OPINION ISSUED APRIL 26, 1989
HARRY ALLAN WHITE, INDIVIDUALLY, AND AS
ADMINISTRATOR OF THE ESTATE OF GEORGIA M. WHITE
DEPARTMENT OF HIGHWAYS
A.J. Ryan and Randy G. Clark, Attorneys at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
On or about January 6, 1985, claimant's wife, Georgia White, was
travelling on State Route
49 near Matewan, Mingo County, in a 1983 Chevrolet pickup truck.
Georgia White was operating slid on a patch of ice on the highway.
lost control of the
vehicle which struck a wall. She died in the accident. Claimant
$175,000.00 for the
wrongful death of his wife.
Claimant alleges that the area where the accident occurred is
improperly ditched. In addition,
this defective condition has existed for a long period of time, and
respondent had constructive
notice of said defect, and, therefore, is negligent.
Deborah Kay Scott, daughter of the deceased, was following her
vehicle in another
vehicle on the night of the incident. She testified that she left
home at approximately 8:30
p.m. accompanied by Georgia White and Shirley Johnson. They went to
Doug's Lounge and
then to the Silver Dollar. These are social establishments. She
that her mother had a
single drink at Doug's, and she did not stay with her at the Silver
Dollar. She was unable to state
whether her mother had a drink at the second bar. They left the
bar between 3:00 a.m.
and 3:30 a.m. Georgia was driving the pickup truck. Yvonne Montgomery
was driving the
vehicle in which Deborah Scott was a passenger. She estimated that
speed of the
Montgomery vehicle was approximately 25-30 miles per hour. The
operated by Georgia
White passed the Montgomery vehicle. There was a double yellow line
present according to
Deborah Scott. She estimated that the speed of the White truck was
approximately 40-45 miles
per hour. When Georgia White attempted to drive back into her lane
travel, the vehicle slid on
the ice. It then slid into a wall adjacent to the left side of the
and bounced back across the
road to the other side of the road. Georgia White and Donnie were
"... like up agin the
brick wall and Shirley, she was laying over in those people's
further testified that on
the trip from Doug's Lounge to the Silver Dollar, they passed the
of the accident site for the
second time. When they passed the accident site for the third time
evening, the accident
occurred. She also indicated that 25 miles per hour speed limit
were present on the night in
question on Route 49 South and Route 49 North.
Nora Talbert has lived in a residence adjacent to State Route 49,
Matewan, since 1940.
She stated that it is in a low lying area. After the flood in 1977,
house was raised six feet.
Presently, the house is level with the highway. There is a concrete
between her property
and State Route 49. She testified that there has been a problem
drainage. "... we have no
where for the water to go except out on the highway." She stated
there is frequently standing
water in that location. None of the road
is ditched. She further testified that before the 1977
flood, the respondent constructed a ditch line near Sulfur Creek.
ditch is no longer present,
but she could not confirm whether it was present at the time of
White's accident. Mrs.
Talbert stated that the White accident occurred where Sulfur Creek
intersects with State
Wendell B. Mullins, County Maintenance Superintendent for Mingo
checked records maintained by respondent to determine if there were
this particular section of Route 49 prior to January 6, 1985. He
find any complaints
about this section of Route 49. Charles R. Lewis, II, Planning and
Research Engineer with
respondent, testified that he reviewed the accident reports from
1, 1987 through the
date of the accident. He found no reports of accidents for that
period. He did find a report
of an accident which had occurred prior to 1981. It occurred on
This Court has repeatedly held that the State is not a guarantor
safety of travelers on its
highways. Adkins vs. Sims, 130 W.Va 645, 46 S.E.2d 81 (1947).
made where it has been established that respondent had actual or
constructive notice of a
defect, and, having adequate time, failed to correct the defect or
provide warning signs or
barriers. The Court has also held that the State will not be
nor expected to keep it
highways free of ice and snow at all times. The presence of an
ice patch on a highway
during winter months is generally insufficient to charge the State
negligence. See 39 AM.
JUR. 2d Highways, Streets and Bridges, §506. See also Woofter vs.
2 Ct.Cl. 393 (1944); Christo vs. Dotson, 151 W.Va. 696, 155 S.E.2d
The Court is of the opinion that Georgia White, having travelled
49 frequently, was
aware of the potential hazard of ice at this location. This road is
marked in the area of the
accident site with a double yellow line indicating a no passing
The evidence established
that she was operating her vehicle at a speed which was not safe
conditions then and
there existing. It is the opinion of the Court that these factors
the proximate cause of this
accident. For these reasons, the Court is of the opinion to, and
deny this claim.
Judge Wallace did not participate in the hearing or the decision