OPINION ISSUED FEBRUARY 3, 1989
CAROL J. BAKER
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
Claimant brought this action to recover damages sustained to her
automobile, a 1983
Oldsmobile, when it struck a hole in Route 50 near Parkersburg,
The claimant, Carol J. Baker, testified that she was travelling
Parkersburg in her 1983
Oldsmobile, on Route 50 in Wood County. The incident occurred on
26, 1988, at
approximately 6:00 p.m. The weather was clear. Claimant explained
she heard a siren from
an emergency vehicle. She was travelling at approximately 30-35
per hour. She pulled her
automobile off the travel portion of the road onto the berm. The
automobile struck a hole in the
berm causing damages to her automobile. The wheel and rim were
for a total cost of
The claimant travelled the road infrequently prior to her
hole was located at the
edge of the road on the berm. The claimant's vehicle struck the
before she noticed it.
Claimant described the hole as being approximately six inches deep.
There were vehicles
travelling in front of claimant. These vehicles also pulled off the
for the emergency vehicles,
but were beyond the point at which claimant drove onto the berm.
This Court has previously considered the issue of claims involving
damages to vehicles where
the berm of the road is in a defective condition. The Court has
generally held that,where the
respondent provides a road which is too narrow for the passage of
vehicles, the respondent
will be held liable for damages which occur when claimants must use
berm of the road and
that berm is in a defective condition. See White vs. Dept. of
11 Ct.Cl. 138 (1976)
and Conn vs. Dept. of Highways, 13 Ct.Cl. 194 (1980).
The Court has also held that a claimant who has not been forced
the berm will not
recover for damages sustained from a defect in the berm. Sweda vs.
of Highways, 13
Ct.Cl. 249 (1980).
It is the opinion of the Court that the claimant herein was not
negligent in proceeding onto the
berm for an emergency vehicle but was placed in a position of
use the berm, and the
berm should have been in usable condition. Photographic evidence
that the berm was
defective. The Court has determined that the respondent was
its maintenance of the
berm at the site of this accident. Therefore, the Court is of the
opinion that claimant is entitled to
an award for damages to her vehicle in the amount of $90.00.
Award of $90.00.