OPINION ISSUED DECEMBER 29, 1988
RALPH W. PALMER
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
On February 1, 1988 claimant was traveling south on Route 2, in
1978 Ford Fairmont.
The vehicle struck a rock and incurred damage. Claimant seeks
for the damage.
Claimant testified that the location of his accident was
two miles from Wilson
Park. The rock, which was a "... good bit larger than a bushel
had come from the
hillside. It was almost in the center of the double lane of the
It was dark and raining at
the time of the incident and he was traveling at a speed of
approximately 40-45 miles per hour.
Apparently, the rock had fallen only a minute or two before his
struck the rock. There is
a "falling rock" sign at the location of the accident. He paid
for the automobile a month
and a half prior to the accident. He admitted that he had observed
in that area on previous
occasions. He travels the route approximately five times a week.
The State is neither an insurer nor a guarantor of the safety of
motorists on its highways.
Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). The Court has
occasions that the unexpected falling of rocks onto a highway
positive showing that
respondent knew or should have known of a dangerous condition is
insufficient to justify an
award. Hammond vs. Dept. of Highways, 11 Ct.Cl 234 (1977), Adkins
Highways, 13 Ct.Cl. 307 (1980) and Hatfield vs. Dept. of Highways,
Ct.Cl. 168 (1984).
As no evidence was presented to establish notice of the rock in the
road, the Court must deny