OPINION ISSUED DECEMBER 3, 1987
ROBERT M. MOORE AND JUANITA MOORE
DEPARTMENT OF HIGHWAYS
Kenneth E. Kincaid, Attorney at Law, for claimants.
Andrew Lopez, Attorney at Law, for respondent.
On August 19, 1985, the claimants were travelling south on Route
Lerona when their
motor home left the travel portion of the roadway and proceeded
berm whereupon the
vehicle struck a hole. Claimant Robert M. Moore was driving the
home. He lost control
of the vehicle, and it struck a tree. The claimants allege
the part of respondent for
failure to maintain the berm, which constituted a hazardous
and seek $31,031.40.
The claimants are husband and wife and were travelling in their
Dodge X-Plorer, 24-foot
motor home. Mr. Moore was operating the vehicle and his wife was a
passenger. They had
visited Pipe Stem State Park and were proceeding toward Princeton
a.m. at the time of the incident. Route 20 is a two-land, asphalt
highway. The weather was clear
and the road was dry. The Moore vehicle was being approached by
vehicle in the
opposite lane. To compensate for the narrow width of the highway,
Moore attempted to
keep his motor home to the far right. In so doing, the motor home
slipped off the paved surface
of the road onto the berm and struck a hole located on the berm.
Testimony in the claim revealed that individuals who worked and lived
in the vicinity of this
accident were award of the existence of the hole. The hold was
to be 15 inches in
circumference and 7 inches deep. Complaints had been made to
presence of holes in the berm on Route 20. However, no complaints
made with specific
reference to this hole.
Corporal Dan Fulknier, a member of the Department of Public
accident. He testified that the width of Route 20 is approximately
feet. There is a double
yellow line in the center of the road. The depth of the pavement,
the top of the pavement to
the normal berm, was 7 inches. This differential extends the length
the entire berm in that area.
Corporal Fulknier stated that he was able to locate an accident
for an incident occurring
previous to August 19, 1985. The report documented an accident
have occurred on
or about July 14, 1985, at the same location as the present
However, the accident
report did not mention a hole in the berm.
The record also revealed that respondent had not received any
complaints concerning this area
of the road or the berm prior to the accident.
The evidence as presented fails to reveal why claimant Robert M.
drove his vehicle off
the travel portion of the road and onto the term at the accident
The paved highway would
facilitate the passing of two vehicles. The Court has held that a
traveler on the State's highways
travels at his own risk and uses the berm at his own risk. See Cole
Dept. of Highways,
CC-82-292, (January 17, 1986).
The Court has been unable to determine negligence on the part of
respondent in the
maintenance of the berm on Route 20. There was no apparent reason
the Moore vehicle to
veer onto the berm. In accordance with previous decisions of the
the claim must be
Judge David G. Hanlon did not hear nor participate in the decision