OPINION ISSUED DECEMBER 2, 1988
JARVEY G. MARCUM
ROY PAUL MESSER
DEPARTMENT OF HIGHWAYS
Larry D. Taylor, Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.
On April 28, 1986, claimants Jarvy G. Marcum and Roy Paul Messer
County Route 41 through Cabwaylingo State Park in Wayne County.
operating his 1980 Ford Tempo and approached a bridge which was a
structure with a
double planked wooden deck. As the automobile proceeded onto the
stopped. Both claimants sustained injuries and the automobile was
damaged. Claimant Marcum
seeks an award of $25,000.00 for his injuries, medical expenses,
and suffering, and the
amount of his insurance deductible with reference to the damage to
Messer seeks an award of $50,000.00 for his injuries, medical
pain and suffering, and
for loss of earnings.
Claimants determined that the automobile was brought to a stop on
bridge when a timber,
which was a part of the bridge deck, split and came up through the
floorboard of the automobile,
extending approximately 18 inches into the automobile. The timbers
placed on the deck
parallel with the bridge. Each timber was approximately eight
wide and two and one-half
to three inches thick. Claimants allege that respondent was
its maintenance of the
Respondent contends that the bridge in question is a small,
bridge on a secondary
road which is considered a local service road. The average daily
count at that time was
350 vehicles per day. The respondent also contends that it did not
notice that there was
any problem with the bridge prior to the claimants' accident.
Respondent's last inspection of the
bridge, prior to the accident, was in September 1984, and several
timbers were replaced on
November 30, 1984.
Claimant Marcum testified that he frequently travelled over County
Route 41 as he lived
approximately one mile from this particular bridge. He had noticed
the floor boards on the
bridge decks of the bridges along this route would split with the
exception of the bridges which
had been replaced with steel mesh, cement and steel. Although he
seen the condition of the
boards, he state that it had not occurred to him that a board would
split and come up through the
floorboard of his automobile. He also testified that about a year
the incident herein he
had made a complaint to employees of the respondent concerning the
condition of the bridges;
however, the complaint was general in nature and was not
about the bridge, which is
the subject matter of this claim.
The State is neither an insurer nor a guarantor of the safety of
travellers on its highways.
Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to
negligence, actual or constructive notice of the defect is
This Court has held in prior
claims that respondent's failure to discover the condition of a
may constitute negligence.
White vs. Dept. of Highways, 15 Ct.Cl. 269 (1985); Eller vs. Dept.
Highways, 13 Ct.Cl.
155 (1980); and Williams vs. Dept. of Highways, 11 Ct.Cl. 263
It is reasonable to assume that a wooden bridge deck may
with the result that
timbers split and then pose a hazard to the travelling public.
Respondent is responsible for
inspecting and maintaining bridges in the State such that the
not pose a problem for
the travelling public.
The travelling public proceeding on the State's bridges is not
to assume that the
bridge is unsafe. Rather, the public assumes that the bridges are
unless barricades or other
warning devices are present. Claimants reasonably anticipated that
would cross the bridge
safely even though the bridge was not in the best state of repair.
could not anticipate that a
loose timber would suddenly pierce the floorboard of the automobile
which they were crossing
Claimant Marcum was transported to St. Mary's Hospital in
where he remained
through April 30, 1986. He wore a soft collar for six days. He also
underwent dental work at
the Huntington Veteran's Hospital which was necessitated by reason
the accident. His
medical expenses were $1,960.62. He had a deductible which he paid
the damages to his
automobile which he estimated to be $200.00 or $500.00.
Claimant Messer sustained injuries to the right side of his head
his shoulder. He was
transported to the emergency room of St. Mary's Hospital in
He wore a neck collar
for 25 to 30 days. He received follow-up medical care from Dr.
Sakhai. He was
returned to work for approximately two weeks but was unable to
as needed due to
pain. He attempted several other jobs, but he has been unable to
due to the pain which he
experiences when he does physical labor. His medical expenses were
The Court is of the opinion that the respondent was negligent in
maintenance of the bridge.
Therefore, the Court is disposed to make awards to the claimants as
follows: award of
$7,200.00 to claimant Jarvy G. Marcum and award of $10,000.00 to
claimant Roy Paul Messer.
Award of $7,200.00 to Jarvy G. Marcum.
Award of $10,000.00 to Roy Paul Messer.