OPINION ISSUED JANUARY 25, 1991
MARY BERKLEY AND CARL BERKLEY
DIVISION OF HIGHWAYS
Larry Thompson, Attorney at Law, for claimant.
Jeff Miller, Attorney at Law, for respondent.
On February 24, 1987, Mary Berkley was operating claimants' 1984 Ford Bronco II on State Route
14 in Chattaroy, Mingo County, when the vehicle encountered ice. As a result, the Bronco went over
an embankment and landed in a creek. Claimants seek $115,945.08 for medical expenses, personal
injury to claimant Mary Berkley, damage to their vehicle, and loss of consortium on the part of
claimant Carl Berkley.
Claimants allege that respondent had actual and constructive notice of the ice in the month of
January 1987. Respondent alleges that the driver of the accident vehicle was familiar with the road.
She was award of the propensity of water to collect on the road and she was negligently operating
her vehicle for the road conditions then and there existing.
Claimant Mary Berkley was traveling to work at approximately 6:45 a.m. on the day of the accident.
She testified that she was operating her vehicle between 20 and 25 miles per hour. She had
encountered ice previously in this area. However, on the evening preceding her accident the road was
not slick. She indicated that the ditch at the accident location was blocked by debris year round.
Additionally, she had observed ice at this particular site three or four times prior to this accident, but
she had not reported her concerns to respondent.
As a result of the accident, claimant Mary Berkley sustained personal injuries. She was examined
by Dr. Zamora immediately following the accident in the emergency room or Williamson Memorial
Hospital. However, contrary to the doctor's directions, she did not return for further treatment nor
did she receive physical therapy as instructed by the physician. She returned to work a week after
the accident. She testified that due to her injuries, which included back pain, she was unable to work
as many hours as she had prior to the accident in her position as parts Manager at Muncy's
Automotive in Nolan.
Claimant Carl Berkley testified that he was familiar with the area of the accident because he has
resided there for 15 years. There has been a problem with drainage in the area since 1963. He also
testified as to his wife's limitations following the accident. She complains of pain daily, which was
not the case prior to the accident. She is unable to perform simple household chores, and can not
assist him with year work. They now lack a social life, whereas previously they enjoyed dancing and
Edward Hatfield testified that he witnessed the accident. He was 200 to 300 feet behind claimant in
his vehicle. Mr. Hatfield estimated claimant Mrs. Berkley's speed at approximately 30 to 35 miles
per hour. The creek was on the left side of the road, and the ditch was on the right side. He stated that
the ice was noticeable on the highway on the date of the accident "only when you got up right close
Respondent established that the clerk at the Mingo County headquarters, Patricia Pyrtle, could not
remember having received any complaints concerning this section of Route 14 before February 24,
1987. The written records for telephone complaints are not available for complaints made on or
before February 24, 1987, as respondent does not retain the records for more than a month.
Earl David Bevins, Maintenance Engineer with respondent in Huntington, testified concerning
ditching standards followed by respondent. Ditching is normally performed during the months of
March, April, May, June, August, September, October and possibly during November, December,
January or February. He is familiar with Route 14 in the area of the accident because he has traveled
this route since the early 1970's. He is described the road as a secondary route, 16/17 feet in width,
and composed of hot-laid bituminous concrete with shoulders approximately three feet wide. He
stated that it's a "relatively high maintenance area" as ditch lines fill rapidly with trash and other
Mr. Bevins further testified that he received a Xeroxed copy of a January 20th, 1987, Williamson
newspaper photograph concerning the water and ditch hazards on this particular section of Route 14.
However, he is certain that he did not receive and review this Xeroxed copy until late February 1987.
He made a notation on the copy of the news article which stated, "Need ditches pulled ASAP. To
be pulled while Grade-All is in the county." There is a lag time between requests and the scheduling
of the use of Grade-Alls due to a minimum number of Grade-Alls. He could find no evidence of oral
or written notice of complaints about this section of Mingo County Route 14 prior to receiving the
newspaper clipping. This is a state local service route as opposed to being a feeder route, trunk line,
or expressway, and as such, it is a low priority area for maintenance.
The Court, having reviewed the record in this claim, is of the opinion that respondent had
constructive, if not actual, notice of the propensity of this area of State Route 14 to accumulate water
as a result of the lack of maintenance of the ditch lines. It is reasonable to assume that water allowed
to accumulate on the orad would create an ice hazard to the traveling public during the winter
months. However, as claimant Mary Berkley was also familiar with this location and the problems
of water accumulating on the surface of the road, she also had notice that ice may form in the area.
It is the opinion of the Court that both respondent and claimant Mary Berkley were negligent. In
accordance with the doctrine of comparative negligence, the Court finds claimant Mary Berkley 40
per cent negligent and respondent 60 per cent negligent.
As a result of this accident, claimant Mary Berkley suffered severe injuries to her back. Testimony
from her treating physician, Dr. Donald G. Vaughan, substantiated that claimant experienced pain
after the accident from the injuries and that she has been receiving treatment since that time. It will
be necessary that she receive further medical treatment through October 1989. He stated that she will
need treatment from time to time in the future. Her medical bills from treatment were $1,368.00.
Claimant Mary Berkley also established a loss of income as a result of the injuries during the
remainder of 1987 and in 1988 and 1989. The Court was provided documentation that these losses
totaled approximately $12,000.00.
She incurred medical bills for emergency room treatment and for physical therapy in the amount of
$721.00. She had medical prescription expenses but these expenses were not satisfactorily proven
to the Court.
The Court, having reviewed all of the medical expenses, loss of work, and pain and suffering, has
determined that claimant Mary Berkley has sustained damages in the amount of $18,589.00, which
will be reduced by 40 per cent. The Court therefore makes an award to claimant Mary Berkley in the
amount of $11,153.40. The Court makes no award to claimant Carl Berkley for loss of consortium.
Award of $11,153.40 to Mary Berkley
Judge Baker did not participate in the hearing or decision of this claim.