OPINION ISSUED APRIL 2, 1992
SALERNO BROTHERS, INC.
DIVISION OF HIGHWAYS
James C. West, Jr., Attorney at Law, for claimant.
James D. Terry, Attorney at Law, for respondent.
On June 9, 1989, claimant's employee, Paul Emery, was operating a make-shift mobile crane on State
Route 3, more commonly known as the Shinnston-Mannington Road, approximately two miles west
of Shinnston in Harrison County. The vehicle, described as weighting 75,000 pounds and being 11
feet 10.5 inches high, 8 feet 2.5 inches wide, and 35 feet 6 inches long was traveling east on Route
3, when a westbound tractor-trailer (lowboy design) approached in the opposing lane. Believing that
both vehicles could not safely proceed at the same time, the claimant's employee brought the crane
to a complete stop to allow the approaching truck to pass first. Joseph Salerno, President of claimant
corporation, initially stated that the berm of Roue 3 gave way when the two vehicles passed and the
crane over-turned into an adjacent stream. His subsequent testimony suggests that the roadway, not
the berm, gave way. The crane fell over the bank adjacent to Route 3. The crane is alleged to have
been completely destroyed by the accident and damages are sought in the amount of $250,000.00.
The claimant alleges that respondent was negligent as the road and the berm were not adequate, and
there were no guardrails present to prevent or protect against such an accident.
The respondent denies negligence and avers that the claimant's employee's negligence was the cause
of this accident. The respondent states that the crane is a limited use vehicle that was being operated
unlawfully without a permit, and was being driven by an inexperienced driver. The respondent also
contends that the claimant's employee merely drove the vehicle off the side of the road, and that the
roadway did not collapse. The respondent further contends that the purpose of requiring a permit for
a limited use vehicle such as the crane which is the subject mater of this claim is to allow the State
to assist in the safe transportation of such equipment on the highways.
The claimant disagrees with the contention that a permit was required for the transportation of the
crane. It is uncontroverted that no permit had been issued.
The respondent's witness, Allen D. Blackwood, a State Weight Enforcement Officer, testified that
the crane was an "S" classified vehicle, meaning special mobile registration. He stated that an
S-vehicle exceeded legal dimensions of weight and size must have a permit before it may be lawfully
operated upon the State roads and highways. Officer Blackwood testified that this crane exceeded
the legal dimensions of weight and width, and should not have been operated without a permit. He
stated that a permit would have designated what route could be used, at what time the vehicle could
be driven, and what traffic control would be appropriately required. When asked whether this vehicle
was being legally operated on the road when the accident occurred, Officer Blackwood testified it
was illegal to be on the highways without a permit.
The West Virginia Supreme Court of Appeals has consistently held that the violation of a statute is
prima facie evidence of negligence. Anderson v. Moulder, 183 W.Va. 72, 394 S.E.2d 61, (1990). The
claimant failed to obtain the required permit for the operation of the crane. W.Va. Code §17-C-17
requires the permit. The Court cannot in equity and good conscience authorize an award where State
law has been violated, and such violations may have proximately caused or significantly contributed
to the accident which is the subject mater of the claim.
The claimant must prove by a preponderance of the evidence that respondent was negligent. No
negligence on the part of the respondent has ben established. The road upon which the crane was
driven was 19.6 feet in width which appears to be adequate width for an 8 foot wide vehicle. Further,
the absence of a guardrail for this road does not constitute negligence. The West Virginia Supreme
Court of Appeals has stated in Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947) that the failure
of the state road commission to provide guard rails does not constitute negligence where no fault was
found with the road. Considering the financial limitations placed upon the road commissioner, the
Supreme Court stated in Adkins that it would be impossible to place guard rails on all points of
danger in our mountainous terrain. The Court is of the opinion that claimant has failed to establish
that the conditions on Route 3 were the proximate cause of the accident which caused the damages
to claimant's crane.
Accordingly, the Court is of the opinion to and does deny this claim.