OPINION ISSUED MAY 28, 1991

CHARLES R. WEBB, ADMINISTRATOR
OF THE ESTATE OF RUSSELL G. WEBB
VS.
DIVISION OF HIGHWAYS

(CC-89-461)

Claimant represents self.
James D. Terry, Attorney at Law, for respondent.

PER CURIAM:

This claim was brought for rehearing upon the issue of responsibility for maintenance of an undefined roadway situate in Boone County. The original action was brought to recover the amount of $525.00 expended by claimant for gravel applied to Harold Road on or about July 17, 1989. The prior decision of the Court issued October 15, 1990, held that Harold Road was not within the State Highway System, and no requisite duty was owed by the State to maintain this road. Upon rehearing, the prior decision is affirmed.

It appears from the documents submitted to the Court that an Order was entered by the Boone County Circuit Court on April 26, 1972, wherein the respondent obtained a construction easement for the construction of Corridor G. Claimant contends this Order brought
Harold Road into the State system and obligated respondent to maintain the road. A second Order entered May 15,1 990, by the Commissioner of the Division of Highways specifically provides for the addition of the road in question into the "State Local Service System."

The respondent is not responsible for maintaining a road unless it is a part of the State road system as defined by §17-4-2 of the W.Va. Code as follows:

The following meanings shall be ascribed to roads comprising the state road system:

(a) "Expressway"-Services major intrastate travel, including federal interstate routes.
(b) "Truckline"-Serves major city to city travel.
(c) "Feeder"-Serves community to community travel or collects and feeds traffic to the higher systems or both.
(d) "State local service"-Localized arterial and spur roads which provide land access and socioeconomic benefits to abutting properties.
(e) "Parks and forest"-Serves travel within state parks, state forests and public hunting and fishing areas. (1967, c. 175; 1972, c. 101)

The 1972 Order that was referenced by claimant was a construction easement only. This Order did not bring Harold Road into the state system for maintenance purposes. Harold Road, although within the State's right of way, was similar to many private access roads in West Virginia which traverse right of way areas in order to access public roads.

In accordance with above, the Court is of the opinion to and does reaffirm its previous Opinion.

Claim disallowed.
REFERENCES

+Berm
+Bridges
+Building Contracts
+Contracts - See also Building Contracts
+Damages
+Drains and Sewers
+Falling Rocks -See also Landslides
+Independent Contractors
+Interest
+Landslides - See also Falling Rocks
+Motor Vehicles, Department of
+Negligence - See also Streets and Highways
+Notice
+Prisons and Prisoners
+Public Employees
+State Agencies
+Streets and Highways - See also Falling Rocks; Landslides; Negligence
+Trees and Timber
+Vendors
BERM

MEISENHELDER VS. DEPARTMENT OF HIGHWAYS (CC-88-149)
The Court disallowed a claim alleging defective berm on the basis the truck driver had voluntarily pulled off the road to check his brakes. The Court reiterated its rule that where a claimant proceeds onto the berm by choice he takes the berm in the condition he finds it. p. 80

MILLER VS. DIVISION OF HIGHWAYS (CC-89-447)
The claimant suffered serious injury and the passenger was killed when claimant's car hydroplaned on standing water on Sissonville Drive in Kanawha County. Claimant alleged berm areas were higher than the road surface, causing the water problem. The Court found no negligence by respondent and said claimant's speed was contributing factor.
Claim disallowed. p. 161

PORTER VS. DIVISION OF HIGHWAYS (CC-90-194)
Where claimant was forced onto the berm area because of approaching traffic, and where respondent had received a prior complaint of eroding berm area, the Court awarded $123.83 for vehicle damage. p. 171

RHODES VS. DEPARTMENT OF HIGHWAYS (CC-89-427)
The Court disallowed a claim alleging unsafe berm conditions, saying there was insufficient evidence that claimant was forced onto the berm in such a way as to trigger liability on the part of respondent. p. 50

USF&G, SUBROGREE OF MARGOLIS VS. DEPT. OF HIGHWAYS
(CC-87-20)
The Court reiterated its position that respondent is liable for failure to maintain berm areas when a driver is placed in a position of having to use them. When a driver proceeds onto the berm without justification, there is no liability for damages. The court disallowed damages for the driver, but held that respondent was negligent in maintaining the berm and made an award to his wife, an innocent passenger. p. 17

BRIDGES

BURGESS VS. DEPARTMENT OF HIGHWAYS (CC-89-37)
Claimant's son sustained injuries when he fell through a wooden bridge maintained by respondent. The Court found the respondent had constructive notice of the deteriorating condition of the bridge deck and awarded a total of $1,295.71. p. 2

RAMIREZ VS. DIVISION OF HIGHWAYS (CC-90-341)
The Court awarded the $500 insurance deductible where claimant's car was damaged after hitting a hole on a bridge and the evidence was that respondent's maintenance supervisor knew

about the hole but made no effort to temporarily cover it because bridge work was performed by another office. p. 148

WOODY, ROSEMARY, ADMINISTRATRIX VS. DEPARTMENT OF HIGHWAYS
(CC-87-44)
Where claimant's son drowned in a single-vehicle accident when his vehicle went off a one-lane bridge, the Court said the respondent was negligent in failing to replace a guard-rail and that the claimant's son was equally negligent in failing to maintain control.
Claim disallowed. p. 29

ZATOR VS. DIVISION OF HIGHWAYS (CC-89-341)
Where claimant fell from a bridge after a rusting handrail gave way, the Court awarded stipulated damages in the amount of $2,250. p. 91

CONTRACTS

L.G. DEFELICE, INC. VS. DIVISION OF HIGHWAYS (CC-85-388)
The Court awarded $142,513 in damages for delay and increased expense on a road construction project on WV Turnpike, including for unilateral changes in claimant's blasting schedule, and failure to provide a right of way for hauling blasted rock debris. The court denied a claim for cost overrun from damage due to foreseeable heavy rain. p. 102
TRI-STATE ASPHALT CORP. VS. DEPARTMENT OF HIGHWAYS
(CC-88-237)
Where the claimant paving contractor sought $224,407 based upon the actual costs of liquid asphalt, the court noted that asphalt prices can vary during the life of a paving contract and awarded $114,538 based upon the published high price
. p. 26

WESTBROOK CONSTRUCTION, INC. VS. DIVISION OF HIGHWAYS
(CC-89-508)
The Court awarded $613,245 for cost overrun and interest on a bridge construction project where the contractor encountered unexpected hard subsurface stone in preparing two piers. The court disallowed a claim for one of the piers where the contractor failed to give adequate notice of force account work. p. 112

DAMAGES

L.G. DEFELICE, INC. VS. DIVISION OF HIGHWAYS (CC-85-388)
The Court awarded $142,513 in damages for delay and increased expense on a road construction project on WV Turnpike, including for unilateral changes in claimant's blasting schedule, and failure to provide a right of way for hauling blasted rock debris. The court denied a claim for cost overrun from damage due to foreseeable heavy rain. p. 102
DEMPSEY VS. DIVISION OF HIGHWAYS (CC-90-312)
Where claimant's motorcycle was totaled after encountering a hole in the road, the Court said respondent had inadequately completed repairs to the road and would be liable. The Court found claimant 20 percent at fault due to excessive speed, but said the damages claimed was speculative and reduced the award to $600. p. 146

WALKER VS. DEPARTMENT OF HIGHWAYS (CC-88-139)
Claimants, owners of a general store at Deepwater in Fayette County, filed a claim for lost revenues when respondent undertook bridge construction that allegedly impeded traffic to claimant's store. The Court found that the respondent attempted to maintain traffic and access during the construction project and that an award of lost profits would be speculative. p. 11

WANITA SOMMERVILLE, ET AL. VS. DIVISION OF HIGHWAYS (CC-89-372)
The Court awarded $100 to claimant for property damage caused by tar and gravel splashing against her home from WV Route 19 in Clarksburg. The Court said respondent knew, or had reason to know, that the cold patch repairs would deteriorate and therefore breached its duty to properly repair the hole in question. The Court disallowed a $165 co-claim by claimant's home insurer-subrogree on the basis the insurer would be unjustly enriched by the award and claimant's premium. p. 110

WESTBROOK CONSTRUCTION, INC. VS. DIVISION OF HIGHWAYS
(CC-89-508)
The Court awarded $613,245 for cost overrun and interest on a bridge construction project where the contractor encountered unexpected hard subsurface stone in preparing two piers. The court disallowed a claim for one of the piers where the contractor failed to give adequate notice of force account work. p. 112

DRAINS and SEWERS

CURKENDALL VS. DIVISION OF CORRECTIONS (CC-89-456)
The Court said two drains were placed too far below the road surface, causing unreasonable danger to motorcycle traffic. However claimant was also speeding and comparatively negligent. Claim disallowed. p. 122

FATONY VS. DIVISION OF HIGHWAYS (CC-86-440)
The Court awarded $6,425 as compensation for water damage to claimant's home, caused when road construction on WV Route 97 in Wyoming County shifted the water table and drainage patterns, resulting in constant water seepage in claimant's basement. p. 74


HOLCOMB VS. DEPARTMENT OF HIGHWAYS (CC-89-386)
Property owners in Richwood alleged that flood damage to their land was caused by negligent maintenance of respondent's culvert pipes on WV Route 76. The Court said respondent had performed reasonable and proper maintenance and could not be held responsible for unusually heavy rainfall. p. 69

NEKORANEC VS. DIVISION OF HIGHWAYS (CC-90-148)
Where claimant's vehicle was damaged when it struck a grate that kicked up under the vehicle, the Court denied the claim as the grate was on a driveway owned by another party. The owner of land fronting on a state road shall maintain and keep in repair all approaches or driveways to and from same. WV Code §17-16-9. p. 140

ORSBURN VS. DIVISION OF HIGHWAYS (CC-88-247)
Where respondent knew of inadequate drainage problems and had been seeking an easement for several years to correct same, the Court found that respondent was liable for damage caused when claimant was injured due to an accident caused by standing water on the
road. p. 125

SUTTON VS. DIVISION OF HIGHWAYS (CC-90-189)
Claimant alleged property damage to his vehicle caused by ditching operations on respondent's road fronting his property. The Court disallowed the claim on grounds that property owner had not repaired the culvert across his drive and respondent's ditching activity was required to prevent water hazards on the road. WV Code § 17-16-9. p. 156

FALLING ROCKS -- See also Landslides

CUMMINGS VS. DEPARTMENT OF HIGHWAYS (CC-88-346)
The Court declined to award damages to claimant for property damage to her vehicle caused by rockfall on Route 60. The Court said the rockfall was caused by weathering that was not detectable during routine inspection, and that there was no actual or constructive notice of hazard. p. 6

DOUGLAS VS. DEPT. OF HIGHWAYS (CC-89-23)
Where the claimant was aware of risk of rock fall, and respondent was similarly aware of rock fall hazard the day of the accident, the Court found that claimant's comparative negligence was equal to or greater than respondent's. Claim disallowed. p. 54

JONES VS. DIVISION OF HIGHWAYS (CC-89-499)
Where respondent had posted signs and had undertaken major scaling of the rock cliff to ameliorate risk of rock fall, the Court found that claimant had taken adequate precautions and was not liable for rock fall. p. 168

KOENIG VS. DEPARTMENT OF HIGHWAYS (CC-87-220)
Claimants alleged personal injuries and vehicular loss as a result of rock fall on Route 20 near the Bluestone Bridge. The Court said that respondent DOH was aware that this particular

area of road is prone to rock fall and that respondent was liable for failing to properly maintain the road. Award of $20,542.60 to three claimants. p. 22

PERDEW VS. DEPARTMENT OF HIGHWAYS (CC-89-214)
The Court disallowed a claim for damage to claimant's tire and rim caused by a rock that had fallen on the road. Respondent's employee had been working on the road earlier the same day and did not notice any rock hazards, therefore there was no notice to respondent. p. 55

POTTER VS. DIVISION OF HIGHWAYS (CC-89-76)
Where both claimant and respondent were familiar with rock hazard on the road and road
cut but no warning signs were present, the Court disallowed a claim for vehicle damage caused by falling rock. p. 141

DOUGLAS VS. DEPT. OF HIGHWAYS (CC-89-23)
Where the claimant was aware of risk of rock fall, and respondent was similarly aware of rock fall hazard the day of the accident, the Court found that claimant's comparative negligence was equal to or greater than respondent's. Claim disallowed. p. 54

INDEPENDENT CONTRACTORS

VIOLA VS. DEPARTMENT OF HIGHWAYS (CC-89-278)
In a case involving vehicle damage from uneven paving work, the Court restated its rule that when an independent contractor was engaged in construction work, the respondent cannot be held liable for the negligenec, if any, of such independent contractor. p. 58

INTEREST

DIVISION OF EMPLOYMENT SECURITY VS. DIVISION OF CULTURE
AND HISTORY (CC-89-406)
Consistent with a prior decision, the Court issued an award of $5,625 in unpaid unemployment compensation tax, but denied any award for accumulated statutory
interest. p. 68

LANDSLIDES -- See also Falling Rocks

CUMMINGS VS. DEPARTMENT OF HIGHWAYS (CC-88-346)
The Court declined to award damages to claimant for property damage to her vehicle caused by rockfall on Route 60. The Court said respondent was not engaged in any construction activity that would have caused the rockfall, and there was no actual or constructive notice of hazard. p. 6

KOENIG VS. DEPARTMENT OF HIGHWAYS (CC-87-220)
Claimants alleged personal injuries and vehicular loss as a result of rock fall on Route 20 near the Bluestone Bridge. The Court said that respondent DOH was aware that this particular area of road is especially prone to rock fall and that respondent was liable for failing to properly maintain the road. Merely patrolling is not sufficient to remove a known danger. Award of $20,542.60 to three claimants. p. 22

MOTOR VEHICLES, DIVISION OF

DENT VS. DEPARTMENT OF MOTOR VEHICLES (CC-89-34)
The Court awarded claimant $45, the cost of a towing fee, when claimant's car was towed after police received erroneous information that claimant's driver's license had been suspended. p. 1

LINKSWEILER VS. DIVISION OF MOTOR VEHICLES (CC-90-295)
Where claimant successfully arbitrated a refund of the purchase price of his new car with the car dealership, the Court lacked jurisdiction to grant an additional refund of sales tax paid. Claim disallowed. p. 139

T.H. COMPTON, INC. VS DEPARTMENT OF MOTOR VEHICLES (CC-88-293)
Claimant sought recovery for excessive sales tax paid on vehicles from 1984 through March 1986, alleging that the tax was improperly computed based on total price, plus federal excise and in some instances state gross tax as well. The Court awarded $12,377.24. p. 1

NEGLIGENCE

BLEVINS VS. DIVISION OF HIGHWAYS (CC-89-22)
The Court restated its position and that of the Supreme Court that respondent's failure to place guardrails does not alone establish negligence
on the part of respondent. Guardrails are discretionary. p. 164

BOSLEY VS. DIVISION OF HIGHWAYS (CC-90-108)
Where claimant testified she was familiar with two large holes on US Route 250 near Fairmont, the Court found respondent liable for damage to her tire but reduced the award by claimant's 25 percent comparative negligence. p. 144

DOTSON VS. DEPARTMENT OF HIGHWAYS (CC-89-346)
The claimant struck a deer in Lincoln County alleged negligent failure to post warning signs about the presence of deer. The Court said respondent cannot be held liable for accidents concerning wild animals. p. 44

MCKINNEY VS. DIVISION OF HIGHWAYS (CC-87-165)
Consistent with the state Supreme Court, the Court of Claims held that failure to wear a seatbelt will not be used for purposes of assessing comparative fault.
p. 159
MILLER VS. DIVISION OF HIGHWAYS (CC-89-447)
The claimant suffered serious injury and the passenger was killed when claimant's car hydroplaned on standing water on Sissonville Drive in Kanawha County. Claimant alleged berm areas were higher than the road surface, causing the water problem. The Court found no negligence by respondent and said claimant's speed was contributing factor.
Claim disallowed. p. 161

O'NEAL VS. DIVISION OF HIGHWAYS (CC-90-178)
The Court awarded $98.57 for tire damage on US Route 60 when claimant was forced to the right due to an oncoming car in his lane. The Court said Route 60 is a heavily traveled artery and claimant was placed in a position of having to move to edge of the road. p. 85

SWIM VS. DIVISION OF HEALTH (CC-83-136)
The Court awarded $10,000 in stipulated damages, where claimant slipped on some butter left on the floor at Pinecrest Hospital, a facility of respondent. p. 87

VIOLA VS. DEPARTMENT OF HIGHWAYS (CC-89-278)
In a case involving vehicle damage from uneven paving work, the Court restated its rule that when an independent contractor was engaged in construction work, the respondent cannot be held liable for the negligence, if any, of such independent contractor. p. 58

WANITA SOMMERVILLE, ET AL. VS. DIVISION OF HIGHWAYS (CC-89-374)
The Court awarded $100 to claimant for property damage caused by tar and gravel splashing against her home from WV Route 19 in Clarksburg. The Court said respondent knew, or had reason to know, that the cold patch repairs would deteriorate and therefore breached its duty to properly repair the hole in question. The Court disallowed a $165 co-claim by claimant's home insurer-subrogree on the basis the insurer would be unjustly enriched by the award and claimant's premium. p. 110

WEBB VS. DIVISION OF HIGHWAYS (CC-89-461)
The Court ruled that a construction easement granted respondent for construction of Corridor G does not bring the property within the state road system. Claim disallowed. p. 173

WOODY, ROSEMARY, ADMINISTRATRIX VS. DEPARTMENT OF HIGHWAYS (CC-87-44)
Where claimant's son drowned in a single-vehicle accident when his vehicle went off a one-lane bridge, the Court said the respondent was negligent in failing to replace a guard-rail and that the claimant's son was equally negligent in failing to maintain control.
Claim disallowed. p. 29

NOTICE
BROWN VS. DIVISION OF HIGHWAYS (CC-89-498)
Claimant's car was damaged when it hit a large hole on a gravel road. The Court charged respondent with constructive notice of a hole of this size, but disallowed the claim because of claimant's comparative fault. p. 135

DUNCAN VS. DIVISION OF HIGHWAYS (CC-90-154)
Where the claimant collided with a fallen tree on WV Route 61, the Court found that the accident was the result of an act of nature and that respondent had no notice of any hazard. p. 136

KELLER VS. DIVISION OF HIGHWAYS (CC-90-349)
The Court disallowed a pothole claim where claimant's Notice of Claim stated the incident occurred on Route 95 but testimony revealed the road was Route 14 and no additional evidence of negligence was offered. p. 153

PROFFIT VS. DIVISION OF HIGHWAYS (CC-89-494)
Where claimants were familiar with the tunnel and knew that standing water tended to obscure holes in the road surface, the Court found that respondent had no notice of the hazard and disallowed the claim. p. 142

WESTBROOK CONSTRUCTION, INC. VS. DIVISION OF HIGHWAYS
(CC-9-508)
The Court awarded $613,245 for cost overrun and interest on a bridge construction project where the contractor encountered unexpected hard subsurface stone in preparing two piers. The court disallowed a claim for one of the piers where the contractor failed to give adequate notice of force account work. p. 112

WOODY, BONNIE H. VS. DIVISION OF HIGHWAYS (CC-89-140)
The statge had constructive notice of a hole six to eight inches deep and extending eight to twelve inches into the road and failed to place warning signs. Award of $151.62. p. 101

PRISONS AND PRISONERS

CLAYTON VS. STATE OF WEST VIRGINIA (CC-89-235)
The Court awarded claimant $35,000 after he served 32 months for an armed robbery committed by another man. WV Code §14-2-13a. p. 5

COPEN VS. DIVISION OF CORRECTIONS (CC-89-368)
Claimant's glasses were damaged in an unprovoked altercation at Pruntytown, a facility of the respondent. The Court held that respondent is liable only for fair value of replacement costs and that claimant failed to establish that her replacement glasses are less than fair value replacement. Claim disallowed. p. 121

HARPER VS. DIVISION OF CORRECTIONS (CC-90-287)
Claimant brought an action for property damage when an Huttonsville escapee broke into her home. The Court restated its position that escapee cases must be decided upon facts particular to each case and that claimant must establish causal negligence by the state agency. Claim disallowed. p. 152

KANAWHA COUNTY COMMISSION VS. DEPARTMENT OF CORRECTIONS
(CC-87-489 & CC-87-724)
The Dept. of Corrections is not liable for payment for housing a prisoner in a county jail as a result of a circuit court order to permit the prisoner to participate in or assist in preparing for trial. The respondent Dept. of Corrections is liable for costs for holding prisoners in a county jail pursuant to reprieve orders by the Governor granted prior to April 19, 1989. p. 15

MINERAL COUNTY COMMISSION VS. DIVISION OF CORRECTIONS (CC-89-340)
The Court held that the county commission is entitled to reasonable costs for holding state prisoners confined in the county jail due to lack of space at respondent's prison institutions. The Court said $15 per day per inmate is a reasonable rate, and, based on stipulation of 2,638 inmate days, awarded claimant $39,570. The Court also held that claimant is entitled to $5,181 for medical services provided these inmates. pp. 88, 93

(See also, Barbour County Sheriff's Dept. vs. DOC, CC-91-51, p. 117; Mingo County Sheriff's Dept. vs. DOC, CC-90-142, p. 124)

SHEPARD VS. STATE OF WEST VIRGINIA (CC-88-167)
Claimant filed this claim for unjust imprisonment, alleging that he was unlawfully transferred from juvenile to adult status on a prior 1977 conviction used for sentence enhancement. The Court rejected the claim because at the time of the 1977 transfer order, statutory findings of fact and conclusions of law were not required. p. 77

THORNTON VS. DEPARTMENT OF CORRECTIONS (CC-88-26)
The Court overruled a motion to appoint counsel for an incarcerated inmate for purposes of pursuing the inmate's claim in the Court of Claims. The Court said the nature of the claim is civil and that civil litigants generally do not have a constitutional or statutory right to
counsel. p. 65

PUBLIC EMPLOYEES

CARMICHAEL VS. BOARD OF PROBATION AND PAROLE (CC-88-377)
The Court denied a claim for $1,699.99, representing annual leave time accumulated while claimant served as Commissioner of Labor. The Court said department heads of state agencies serve at the governor's will and pleasure and do not accumulate leave.
Claim disallowed. p. 78


DIVISION OF EMPLOYMENT SECURITY VS. DIVISION OF CULTURE
AND HISTORY (CC-89-406)
Consistent with a prior decision, the Court issued an award of $5,625 in unpaid unemployment compensation tax, but denied any award for accumulated statutory
interest. p. 68

SMITH, ET AL. VS. WV DIVISION OF FORESTRY (CC-90-144)
The Court awarded $32,877 in unpaid overtime to various employees of
respondent. p. 132

ROBERTS VS. DIVISION OF HEALTH (CC-90-270)
BOLEN VS. DIVISION OF MOTOR VEHICLES (CC-90-275)
BIRD VS. DIVISION OF MOTOR VEHICLES (CC-90-324)
The Court awarded annual pay increases as per statute WV Code § 5-5-2, on a pro rata share. p. 128

SPRINGSTON VS. DEPARTMENT OF EDUCATION (CC-89-147)
The Court awarded $666.87 in salary adjustment because the paperwork for claimant's pay increase had not been processed in the proper fiscal year. Respondent admitted the validity of the claim and stated that there were sufficient funds in the appropriate fiscal year with which claimant could have been paid. p. 9

STATE AGENCIES

CARMICHAEL VS. BOARD OF PROBATION AND PAROLE (CC-88-377)
The Court denied a claim for $1,699.99, representing annual leave time accumulated while claimant served as Commissioner of Labor. The Court said department heads of state agencies serve at the governor's will and pleasure and do not accumulate leave. Claim
disallowed. p. 78

STREETS & HIGHWAYS -- See also Falling Rocks; Landslide; Motor Vehicles; Negligence

ANDERSON, ESTATE OF, VS. DEPARTMENT OF HIGHWAYS (CC-83-354)
The Court distributed $5,000 stipulated damages to heirs of decedent-claimant, whose car was struck by a falling light pole maintained by respondent causing non-fatal injuries and property damage. p. 66

BALDWIN VS. DEPARTMENT OF HIGHWAYS (CC-89-466)
The Court awarded $200 for tire damage where the evidence was that the road was heavily travelled by coal trucks and that holes are a regular and ongoing problem. p. 82


BERKLEY VS. DIVISION OF HIGHWAYS (CC-88-78)
Where claimant was familiar with the icing conditions on WV Route 14, the Court found claimant 40 percent at fault and granted a percentage-reduced award of $11,153.40. p. 118

BRITTON VS. DEPARTMENT OF HIGHWAYS (CC-89-229)
The claimant filed for property damage to his 1986 Bronco caused by concrete pieces laying on the road surface. The Court held this road condition was unforeseeable because it was caused by heat building up and warping a joint in the road. Claim disallowed. p. 42

BROWN VS. DIVISION OF HIGHWAYS (CC-89-498)
Claimant's car was damaged when it hit a large hole on a gravel road. The Court charged respondent with constructive notice of a hole of this size, but disallowed the claim because of claimant's comparative fault. p. 135

BURGESS VS. DEPARTMENT OF HIGHWAYS (CC-89-37)
Claimant's son sustained injuries when he fell through a wooden bridge maintained by respondent. The Court found the respondent had constructive notice of deteriorating condition of the bridge deck and awarded a total of $1,295.71.
p. 2

CHILDERS VS. DEPARTMENT OF HIGHWAYS (CC-87-202)
Claimant brought an action to recover for multiple serious injuries suffered in an automobile accident in Charleston, when her vehicle was struck by another driver, Melinda Good, who had slid on ice and lost control. The Court found combined negligence on the part of respondent and the second driver and awarded $165,000. p. 13

CLANSY VS. DEPARTMENT OF HIGHWAYS (CC-89-172)
Respondent's employees had placed cold mix in a hole on a road in front of claimants' home. The court awarded $1,256.10 in compensation for damage to claimant's home when passing vehicles splashed the mix onto their home. p. 4

DIMMICK VS. DIVISION OF HIGHWAYS (CC-87-712)
The Court disallowed a wrongful death claim for icy road conditions where the respondent had treated the road surface three times on the day of the accident and the salt spreader had broken down for an hour, and the evidence was that icy conditions had occurred suddenly. p. 94

DOTSON VS. DEPARTMENT OF NATURAL RESOURCES (CC-89-346)
The claimant struck a deer in Lincoln County alleged negligent failure to post warning signs about the presence of deer. The Court said respondent cannot be held liable for accidents concerning wild animals. p. 44



EDWARDS VS. DEPARTMENT OF HIGHWAYS (CC-87-333)
The Court disallowed an award to claimant's decedent killed in a two-vehicle car wreck in Boone County allegedly triggered by a dip in the road. The Court found that the driver was familiar with the road and that his negligence was equal to or greater than that of
respondent. p. 7

EVANS VS. DEPARTMENT OF HIGHWAYS (CC-89-424)
Claimant alleged that respondent had not adequately marked the work location where respondent's employees were cleaning out ditches. The Court disallowed the claim, since placement of three signs was done as specified in the respondent's traffic manual. p. 39

FATONY VS. DIVISION OF HIGHWAYS (CC-86-440)
The Court awarded $6,425 as compensation for water damage to claimant's home, caused when road construction on WV Route 97 in Wyoming County shifted the water table and drainage patterns, resulting in constant water seepage in claimant's basement. p. 74

HOLCOMB VS. DEPARMTENT OF HIGHWAYS (CC-89-386)
Property owners in Richwood alleged that flood damage to their land was caused by negligent maintenance of respondent's culvert pipes on WV Route 76. The Court said respondent had performed reasonable and proper maintenance and could not be held responsible for unusually heavy rainfall. p. 69

JOHNSON VS. DIVISION OF HIGHWAYS (CC-09-170)
The Court awarded $3,000 for work loss and pain and suffering, where claimant's car was totaled and the evidence was that respondent's employees had constructive notice of the break in the pavement during maintenance that winter. p. 96

MEADOWS VS. DEPARTMENT OF HIGHWAYS (CC-89-362, CC-89-363)
Claimants were travelling eastbound in two separate cars on I-64 and 77 when a truck in front of them kicked up broken concrete, damaging both cars. The Court said there was no actual or constructive notice of the defect and disallowed the claim. p. 47

MEISENHELDER VS. DEPARTMENT OF HIGHWAYS (CC-88-149)
The Court disallowed a claim alleging defective berm on the basis the truck driver had voluntarily pulled off the road to check his brakes. The Court reiterated its rule that where a claimant proceeds onto the berm by choice he takes the berm in the condition he
finds it. p. 80

RHODES VS. DEPARTMENT OF HIGHWAYS (CC-89-427)
The Court disallowed a claim alleging unsafe berm conditions, saying there was insufficient evidence that claimant was forced onto the berm in such a way as to trigger liability on the part of respondent. p. 50

SMITH VS. DEPARTMENT OF HIGHWAYS (CC-89-71)
Where respondent had no notice of an ice sheet forming on the road surface, the Court will not find respondent liable for vehicle damage. p. 56

SUTTON VS. DIVISION OF HIGHWAYS (CC-90-189)
Claimant alleged property damage to his vehicle caused by ditching operations on respondent's road fronting his property. The Court disallowed the claim on grounds that property owner had not repaired the culvert across his drive and respondent's ditching activity was required to prevent water hazards on the road. WV Code § 17-16-9. p. 156

USF&G, SUBROGREE OF MARGOLIS VS. DEPT. OF HIGHWAYS
(CC-87-20)
The Court reiterated its position that respondent is liable for failure to maintain berm areas when a driver is placed in a position of having to use them. When a driver proceeds onto the berm without justification, there is no liability for damages. The court disallowed damages for the driver, but held that respondent was negligent in maintaining the berm and made an award to his wife, an innocent passenger. p. 17

VIOLA VS. DEPARTMENT OF HIGHWAYS (CC-89-278)
In a case involving vehicle damage from uneven paving work, the Court restated its rule that when an independent contractor was engaged in construction work, the respondent cannot be held liable for the negligenec, if any, of such independent contractor. p. 58

WAGGONER VS. DEPARTMENT OF HIGHWAYS (CC-89-420)
The Court awarded $500 for damage to claimant's car, holding that the respondent failed to adequately post warning signs of ongoing roadwork. p. 40

WINCHESTER VS. DEPARTMENT OF HIGHWAYS (CC-87-200)
The Court awarded $650 to claimant for personal injuries received when she fell on broken concrete near a vending machine at rest stop on Interstate 79. The Court found that respondent, through its attendants and supervisor, had constructive and actual notice of deteriorated and broken concrete. p. 10

TREES and TIMBER

DUNCAN VS. DIVISION OF HIGHWAYS (CC-90-154)
Where the claimant collided with a fallen tree on WV Route 61, the Court found that the accident was the result of an act of nature and that respondent had no notice of any
hazard. p. 136

VENDORS

The following cases represent a sampling of vendor claims decided by the Court.
Admit Claims: Submitted upon the pleadings.

+ALPINE FESTIVAL, INC. VS. DIVISION OF CULTURE AND HISTORY
(CC-90-374) p. 92

+BECKLEY VETERINARY HOSPITAL VS. FARM MANAGEMENT
COMMISSION (CC-90-76) p. 41

+BICKLEY, JACOBS AND BARKUS VS. HUMAN RIGHTS COMMISSION
(CC-90-79) p. 84

+CAPITOL BUSINESS INTERIORS VS. TAX DEPARTMENT
(CC-89-234a) p. 3

+COLE BUSINESS FURNITURE VS. DEPARTMENT OF ENERGY
(CC-89-244) P. 21

+DUES VS. HUMAN RIGHTS COMMISSION (CC-89-423) p. 36

+EASTERN PANHANDLE TRANSIT AUTHORITY VS. PUBLIC
EMPLOYEES AGENCY (CC-89-88) p. 22

+FERRELLGAS, INC. VS. ALCOHOL BEVERAGE CONTROL
ADMINISTRATION (CC-91-118) p. 167

+GREENBRIER COUNTY PUBLIC SERVICE DISTRICT VS. ALCOHOL
BEVERAGE CONTROL COMMISSION (CC-90-75) p. 76

+HAMILTON BUSINESS SYSTEMS VS. DEPT. OF ADMINISTRATION
(CC-91-62) p. 151

+HCA RIVER PARK HOSPITAL VS. DEPARTMENT OF HEALTH
(CC-90-191) p. 69

+HIGHLAWN PHARMACY, INC. VS. DIVISION OF CORRECTIONS
(CC-91-60) p. 153

+KANAWHA VALLEY RADIOLOGISTS VS. DEPT. OF PUBLIC SAFETY
(CC-90-157) p. 71

+KELLER VS. SUPREME COURT OF APPEALS (CC-90-173) p. 72

+MANPOWER TEMPORARY SERVICES VS. DEPT. OF HEALTH
(CC-90-164) p. 72

+MICHIE COMPANY VS. GOVERNOR'S OFFICE OF COMMUNITY AND INDUSTRIAL DEVELOPMENT (CC-91-99) p. 158

+NATIONAL BUSINESS INSTITUTE, INC. VS. ATTORNEY GENERAL
(CC-91-94) p. 163

+ORTHOPAEDIC ASSOCIATES, INC. VS. DEPT. OF PUBLIC SAFETY
(CC-90-71) p. 49

+RANSON VS. ETHICS COMMISSION (CC-90-348) p. 98

+RES-CARE, INC. VS. DEPT. OF HEALTH AND HUMAN RESOURCES
(CC-90-369) p. 99

+RICOH CORPORATION VS. STATE TREASURER
(CC-90-140) p. 64

+SAINT ALBANS PSYCHIATRIC HOSPITAL VS. DEPT. OF HEALTH
AND HUMAN RESOURCES (CC-90-314) p. 100

+ROGERS, H. JOHN VS. TREASURER (CC90-272) p. 130

+STEINKE VS. ATTORNEY GENERAL (CC-90-376) p. 100

+VIKING WAY PARTNERSHIP VS. ATTORNEY GENERAL
(CC-90-115) p. 51

+WEINSTEIN VS. DIVISION OF CORRECTIONS (CC-90-236) p. 86

+XEROX CORPORATION VS. DIVISION OF CULTURE AND HISTORY
(CC-90-93) p. 60

+YOUNG VS. WEST VIRGINIA PUBLIC DEFENDER SERVICES
(CC-90-155) p. 73

Funeral Home Services provided in accordance with the Indigent Funeral and Burial Service Account. The following claims were awarded for these services:

+ALTMEYER FUNERAL HOMES, INC. VS. DEPT. OF HEALTH AND
HUMAN RESOURCES (CC-91-88) p. 158
+DAVIS-WEAVER FUNERAL HOME, INC. VS. DEPT. OF HEALTH AND
HUMAN RESOURCES (CC-91-48) p. 150

+DOUGLAS MORTUARY VS. DEPT. OF HUMAN SERVICES
(CC-90-65) p. 44

+STEVENS & GRASS FUNERAL HOME VS. DEPT. OF HUMAN
SERVICES (CC-89-267) p. 11

Overexpenditures: The Court will deny over-expenditure claims on the basis of its decision in Airkem Sales & Service, et al. vs. Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
+CITY OF ELKINS VS. GOVERNOR'S OFFICE (CC-89-478) p. 35

+CSX TRANSPORTATION VS. RAILROAD MAINTENANCE AUTHORITY
(CC-89-448) p. 35

+DAUBENSPECK VS. DEPT. OF EDUCATION (CC-90-73) p. 43

+HETZEL VS. DEPT. OF EDUCATION (CC-89-502) p. 45

+LANE VS. WORKERS' COMPENSATION FUND (CC-90-69) p. 46

+TAMERAN, INC. VS. WORKERS' COMPENSATION FUND
(CC-90-118) p. 59

+XEROX CORPORATION VS. DEPARTMENT OF FINANCE AND ADMINISTRATION (CC-90-7) p. 52

+XEROX CORPORATION VS. WORKERS' COMPENSATION FUND
(CC-89-491) p. 53