OPINION ISSUED JANUARY 25, 1991
JUNIOR J. ORSBURN AND MARGARET ORSBURN, HIS WIFE
DIVISION OF HIGHWAYS
William C. Garrett, Attorney at Law, for claimants.
James D. Terry, Attorney at Law, for respondent.
On September 27, 1986, at approximately 7:55 a.m., claimant Junior J. Orsburn experienced
transmission slippage and so he immediately parked his 1976 Ford pick-up truck on the North side
berm of U. S. Route 33, near intersection of State Secondary Route 5/10 in Upshur County, West
Virginia. He was off the road standing in front of his truck. He had the hood up and was checking
the transmission fluid. A short distance away on Route 33, Thomas Binns was driving his 1983 Ford
Mustang in the direction of claimant. When Mr. Binns drove into a large pool of surface water, some
four to six inches deep, he lost control of his vehicle which struck claimant's truck. As a result of Mr.
Binn's vehicle striking the claimant's parked truck, claimant was knocked backwards and sustained
personal injury and total destruction of his truck. Claimant Junior J. Orsburn has been diagnosed as
having suffered bilateral inguinal hernias and shoulder injury. Surgery was performed to correct the
hernias, however, additional surgery is recommended to correct a reoccurrence of the hernia to his
right side. As of this date, he has not had additional surgery and he has returned to work. Additional
surgery unperformed as of this date is estimated to cost $2,000.00 more. Lost income during the
pendency of his recovery was testified by the claimant as minimal, as he is earning more per hour
performing carpentry than he did before the accident. No estimate was provided for the replacement
value of his pick-up truck. Total medical expenses to date have been stipulated to in the amount of
Claimants contend the large pool of surface water extant in the area of the accident was the
proximate cause of the accident, and that respondent was aware that water could and would collect
in the area due to a culvert that was obstructed and admittedly inadequate to handle drainage from
the road surface.
Respondent, while acknowledging the inadequacy of drainage , avers the result of excessive and
unusual rainfall. Respondent concluded that if negligence is found for having failed to provide
adequate drainage in the area, such negligence is negated by a superseding act of nature, namely
excessive rainfall. The Court is unconvinced. The very need for adequate drainage is heightened and
not reduced by the excessive rainfall argument. Uncontroverted testimony of meteorological records
indicates heavy rainfall of over three inches fell in the area of the accident within a two-day period.
Respondent contends the unusual weather is an unforeseeable factor relieving the respondent of
negligence in failing to have adequate drainage.
This Court believes that inadequate drainage does produce foreseeable results under unforeseeable conditions, and thus does not excuse respondent from liability. Testimony is replete with examples
of both constructive and actual notification to respondent of the inadequacy of drainage in the area
of the accident. The failure of respondent to secure an easement for improved drainage from a
recalcitrant property owner does not relieve respondent of its statutory duty of providing a roadway
free of hazards. Efforts at condemnation were never instituted, nor were signs posted to warn
motorists of the dangerousness of standing water. Respondent's witnesses testified to having
knowledge of inadequate drainage, an obstructed culvert, and related deficiencies in this area, but
no definitive corrective action was taken to arrest or remedy same. It is well established by case
precedent that the State is neither an insurer nor a guarantor of the safety of motorists on its highway.
Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). For the respondent to be liable for the
damages caused by the inadequate drainage, claimant must prove that respondent had actual and
constructive notice of the existence of the defect and a reasonable amount of time to correct it. Davis
v. Dept. of Highways, 11 Ct.Cl. 150 (1976). Respondent witnesses have testified to having such
knowledge of the inadequate drainage some four years before the accident in 1982 and thereafter.
The Court likewise recognizes the habitual nature of inadequate drainage in the accident area, as
initially found in Currence v. Dept. of Highways, (CC-84-116), Unpublished Opinion of the Court
of Claims (1985).
This Court is of the opinion that claimants have established by a preponderance of the evidence that
respondent was aware of the hazardous condition in the area of U.S. Route 33 at State Route 5/10,
and that respondent failure to take appropriate action to eliminate the water hazard or warn motorists
of the presence of the same constituted a failure to keep the road in a reasonably safe condition.
Therefore, the respondent was guilty of negligence proximately causing the injuries to claimant
Junior J. Orsburn. The Court further finds that the record fails to disclose negligence on the part of
claimant Junior J. Orsburn. Therefore, the Court is of the opinion to make wards to claimant, Junior
J. Orsburn, and to his wife, claimant Margaret Orsburn.
While the Court is aware that claimant Junior J. Orsburn received a settlement from the other driver,
we recognize the amount was expended for injury related costs leaving him with outstanding unpaid
expenses. Claimant J. Orsburn incurred medical expenses in the amount of $4,274.11, loss of
earnings in the amount of $6,538.00, future medical expenses in the amount of $2,000.00, and pain
and suffering in the amount of $5,000.00 as determined by the Court. He received a settlement in
the amount of $7,500.00 from the joint tortfeasor; therefore, the Court makes a total award of
$10,312.11 to claimant Junior J. Orsburn. The Court is also of the opinion to, and does, make an
award to claimant Margaret Orsburn in the amount of $1,000.00 for her loss of consortium.
Award of $10,312.11 to Junior J. Orsburn.
Award of $1,000.00 to Margaret Orsburn.
Judge Baker did not participate in the hearing or decision of this claim.