OPINION ISSUED MARCH 20, 1990
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
James D. Terry, Attorney at Law, for respondent.
Claimant seeks $1,134.66 for property damage she incurred as the result of an accident on September
19, 1989. Claimant alleges negligence on the part of respondent due to respondent's poorly marked
construction area in which her 1984 Chevrolet Camaro struck a hole.
Claimant testified that she was traveling on three-lane Garfield Avenue in Parkersburg, West
Virginia, at approximately 11:00 p.m. At the time of the incident, claimant observed a police officer
and respondent's construction truck. Respondent's crew was patching the road. Claimant was
proceeding toward Southside at 30-35 mph in the middle lane of traffic when her vehicle struck a
hole. She estimated the hole to be two or three feet long, and six to seven inches deep. She did not
notice the hole before her vehicle struck it.
Respondent's truck was located about _ mile from the hole. There was no flagging or other warning,
with the exception of a "Slow" sign. The accident resulted in extensive damage to her vehicle, but
claimant continues to drive it. she stated that there are two turns in the road. Respondent's crew was
working in the first turn, and the hole was located in the second turn. Claimant stated that she did
not travel the route frequently. She admitted that no claim was filed with her insurance company.
Vernon Cowan, a police officer with the City of Parkersburg, was in the vicinity of the accident
directing traffic. He indicated that the respondent was repairing several large holes in the road. He
did not witness the actual accident. Garfield Avenue is a heavily traveled, main thoroughfare in
Parkersburg, according to Officer Cowan. It was his opinion that the hole which caused claimant's
accident resulted from work done by the respondent.
Dale Deuley, a foreman with the respondent, was alerted on September 19, 1989, that "... the places
that had been worked on that day had got rough." He described the construction work that had been
performed that day: "Okay, the road had hooved up and we have to saw them out and replace this,
you know in order to get them smooth, okay. The road had been sawed out, the concrete had been
taken out, and they had been refilled with a base material which I'm sure you're all aware of that."
The original excavation was about ten inches. He observed the site after the accident and stated that
there was signing on both sides of Garfield Avenue. There were five or six excavations as described
on Garfield Avenue.
The Court has determined that there is ample evidence to sustain a finding that the State had actual
knowledge of a hazardous road condition, and failed to respond to that hazard appropriately. Further,
the State in its response failed to warn travelers of the hazard in the customary manner. However,
claimant's automobile insurance policy statement, submitted for the Court's consideration, indicates
that the claimant has comprehensive coverage, and a $500.00 deductible. Claimant has not filed a
claim with Dairyland Insurance Company. It is the opinion of the Court to award the claimant
$500.00. It is the opinion of the Court to award the claimant $500.00, representing her deductible,
and if her claim against her insurance carrier should be judicially denied, she may again pursue the
matter here. The Court feels that it is premature to make any further award at this time.
Award of $500.00.