OPINION ISSUED AUGUST 10, 1987
JOHN R. KUSHNER & SHERYL KUSHNER
DEPARTMENT OF HIGHWAYS
Claimants appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
On July 20, 1986, at approximately 7:45 p.m., claimant Sheryl
was operating her
1982 Cutlass Cierra on Route 21/38 about 1.4 miles from the
Exit on Route 21.38
when her vehicle became stuck in gravel and incurred damage in the
amount of $177.75.
Claimant Sheryl Kushner originally filed the claim in her own name
against the West Virginia
State Department of Highways. However, the record reflects that the
vehicle is titled in the name
of both John R. Kushner and Sheryl Kushner. The Court, upon its own
motion, amended the
style to include John R. Kushner as a party claimant and the
of Highways as the
Claimant Sheryl Kushner testified that she was alone in the
the time of the incident.
As she was negotiating the turn onto Route 21/38, the vehicle sunk
the gravel on the road.
She was travelling at approximately 20 miles per hour. The gravel
extended across the blacktop
road which is about 30 feet wide. She stated that heavy equipment
been hauled through his
area. Her entire vehicle went into the gravel, and the impact
its movement. She
contacted respondent's office at Ripley and was informed that
had been using Route
21/38 to haul heavy equipment to a dam site. She had driven in this area
two weeks previous to
this incident, but had not experienced any problems.
Mr. Jackie L. Rhodes, son-in-law of the claimants, testified that
travelled the area on the
Friday before claimant's Sunday accident. At that time, he observed
working. There were no markings, barricades or identification of
holes. On Sunday evening,
the condition of the roadway was essentially the same, but the
the road had been
Mr. Dale Casto, respondent's County Maintenance Supervisor for
that a federal dam was being erected in this location and suppliers
material for that project
were using the road in question. Route 21/38 was affected in that
base was lost in a number
of spots. The respondent was in this area doing repairs on the road
the 15th and 16th. He
was not aware of any complaints until Mr. Rhodes informed him of
It is the opinion of the Court that respondent was negligent in
to warn the travelling
public of a hazardous condition. See: Smith vs. Dept. of Highways,
CC-85-320 (April 30,
1986). The Court therefore makes an award to claimant in the amount
Award of $177.75.