OPINION ISSUED DECEMBER 18, 1991
DIVISION OF HIGHWAYS
Nelson R. Bickley, Attorney at Law, for claimant.
James D. Terry, Attorney at Law, for respondent.
On January 19, 1988, the claimant was traveling south on Route 220 near Petersburg, Grant County.
At approximately 11:00 p.m. on that date, claimant encountered several rocks in the road as she
approached Eagles-Nest Gap, 1.1 mile north of Petersburg. Although claimant avoided striking the
smaller rocks, she was unable to avoid a larger rock as she came around a blind curve. She lost
control of her 1981 Mercury Cougar, it rolled over and she was injured. She was transported to Grant
Memorial Hospital in Petersburg, where she remained for three days with multiple contusions and
related trauma. Claimant seeks $6,000.00 for injuries sustained and property damage relating to this
accident. Claimant believes that respondent was negligent in the cause of claimant's injuries.
Respondent avers that no act of negligence was committed and that intervening and superseding
causes were the proximate cause of claimant's accident.
It appears to this Court that the single-vehicle accident was the result of fallen rocks obstructing a
section of U.S. Route 220 near Petersburg. The witness for claimant, Julia Harwood, testified that
she drove through the Eagles-nest Gap between 10;15 and 10:30 p.m. on the evening of the accident,
and that rocks were present on the road. This witness further testified that other drivers indicated that
they would notify the respondent immediately of the rock slide. Respondent's witness, Lincoln
Rohrbaugh, a night watchman for the respondent's area maintenance office, testified that he received
a call concerning fall rocks on Route 220, at 10:45 p.m. Later testimony from this witness revealed
that notification came from "Grant Comm", the Grant County Emergency Community Center. Grant
Comm receives or intercepts calls when the telephone at the night watchman's office is unanswered.
This leaves open the possibility that notification of a rock slide may have come in earlier than as
reported. In other words, efforts may have been made to report the rock slide 30 to 45 minutes before
claimant's accident, according to Julia Harwood's testimony. Ms. Harwood testified that, "a guy in
front of me had stopped at a store and told the lady that was working to call." Thus, the issue before
the Court is whether sufficient time was given for respondent to ameliorate the described road
hazard. The night watchman testified that after closing the maintenance yard, he traveled to the
accident site to verify the road hazard. The watchman arrived too late to have prevented claimant's
collision. It appears to the Court that had greater diligence been used, claimant's accident may have
been avoided. The rocks appeared to have been on the road between 15 to 40 minute prior to the
claimant's accident. Given the severity of the danger, it was incumbent upon the respondent to use
greater dispatch to remove or otherwise warn motorists of this peril. Having failed to do so in a
timely manner, respondent is adjudged partly responsible for the consequences. Social policy
justified the imposition of this heightened duty to act in the prevention of imminent harm. Accordingly, claimant's expectation of safe passage on the highways was violated. Claimant's speed
of travel was thirty miles per hour at the time of the accident. The speed of travel appears reasonable
for wet conditions, and does not suggest in and of itself contributory negligence.
There is conflicting testimony whether falling rock warning signs were present at the accident site.
A witness for claimant, Linda Harvey, testified that her employer, J.F. Allen Construction Company,
had removed warning signs in January of 1988 and had not replaced the signs until December of
1989, ten months after claimant's accident. Roger Keplinger, respondent's witness, testified that the
signs were present for over 21 years. However, respondent's witness did not testify that the signs
were present on the night of claimant's accident. It is therefore the opinion of the Court, that
claimant's witness provided more convincing testimony such that the Court is inclined to believe no
falling rock signs were present when the accident occurred. it is however significant to note that
claimant testified she was aware that Eagle-nest Gap had rock slides. If the warning signs were
removed, claimant may have believed that the falling rock hazard had been repaired and abated. In
any event, the absence of signs may have contributed to claimant's accident as she would not have
been conscious of the potential peril. However, claimant after having avoided the smaller rock fall,
did not testify to reducing her speed, albeit 30, and had she done so may have avoided the peril
awaiting her around the curve. The Court believes that the doctrine of comparative negligence
applies to this case, and finds that respondent is 70% negligent and claimant is 30% negligent. The
parties stipulated claimant's medicals at $2,000.00 of which a certain portion was paid by claimant's
insurance. Claimant's automobile insurance also covered her vehicle, exclusive of a $100.00
deductible. Claimant lost two months wages as a housekeeper, in the amount of $600.00. claimant
also incurred medical expenses in the amount of $450.00 for the services of a chiropractor and she
has experienced pain and suffering as a result of her injuries. The Court therefore makes an award
to claimant of $2,150.00 which is reduced to $1,505.00 based upon the doctrine of comparative
Award of $1.505.00.