OPINION ISSUED DECEMBER 19, 1988
RANDY CLINE AND LEONA KAY CLINE
DEPARTMENT OF HIGHWAYS
Warren R. McGraw, Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
Claimants were travelling in a northerly direction on W.Va. Route
approximately five miles from Oceana. Claimant Leona Kay Cline was
1980 AMC, and her husband, Randy Cline, was a passenger in the
Claimants' vehicle left the right hand or travel lane of the
skidded, slid around, and
struck a 1974 Oldsmobile 442 which was proceeding south on W.Va.
10. Following the
impact with the automobile travelling in the opposite direction,
claimants' vehicle proceeded over
an embankment. Claimants allege negligence on the part of
its failure to maintain
this section of roadway. Claimants contend that respondent's
had left dirt in the road
while maintaining the ditch line. Claimants view the alleged dirt
debris on the roadway as a
hazard and seek compensation of $25,000.00 for the loss of their
automobile and for permanent
disabling injuries to claimant Leona Cline.
Respondent asserts that ditching operations were performed by
respondent three days prior to
this accident, on June 24, 1986, by means of accepted engineering
practice, and that material
was not left on the highway by its ditching crew.
Claimant Leona Kay Cline was travelling at a speed of
35-45 miles per hour.
She had successfully completed her driving test at Jesse, and was
returning home. The roadway
was damp as it had been raining. Both claimants admitted that they
no personal knowledge
as to how the alleged material came to be on the roadway surface as
had not observed
respondent's men working at the scene. The claimants' vehicle was
total loss, and they gave it
to another party. Therefore, claimants did not receive any salvage
for the vehicle.
Ezra Watson Keyser testified that he was the driver of the other
automobile involved in this
accident. He was travelling alone from his home in Lincoln County
Princeton. He estimated
that the accident occurred between 2:00 and 3:00 in the afternoon.
stated that he did not
observe any dirt on his side of the roadway. He mentioned that
photographic evidence revealed
debris on his automobile. He was unable to discern whether it was
from the roadway or
debris from his automobile.
Respondent's employees provided details concerning the area of the
accident. At the time of
this accident, the average daily traffic count was 5,100. The
Traffic Accident reports
and operators' reports were reviewed, and it was determined that
Cline accident was the
only one within the two-mile stretch checked during June 24, 1986,
Route 10 at the accident
site. The individual who operated the 40137, or back grader,
the existence of the
ditching operations and remembered that a broom had been utilized.
Wyoming County did not receive any complaints concerning the
revealed that it is impossible to determine the points where crews
and finish maintenance
operations from the pertinent records regarding ditching operations
To make a determination of respondent's negligence would require
speculation on the part of
the Court. This Court has consistently held that the State is
insurer nor a guarantor of
the safety of persons travelling its highways. Adkins vs. Sims, 130
W.Va. 645, 46 S.E.2d 81
(1947). There was no evidence presented that respondent was
its maintenance of
this roadway. In order to find respondent liable, the Court would
required to speculate,
which it will not do. The Court, therefore, is of the opinion to
does deny the claim.