OPINION ISSUED FEBRUARY 22, 1991
JOSEPH J. NEKORANEC
DIVISION OF HIGHWAYS
Claimant appeared in his own behalf.
James D. Terry, Attorney at Law, for respondent.
On December 29, 1989, around 3:00 p.m., claimant drove his Ford 150 pick-up truck into the
parking lot of Economy Tank Company beside the Pt. Pleasant road in St. Albans, Kanawha County.
To enter the lot, claimant's truck crossed a drain grate. The grate struck the under-structure of
claimant's truck damaging the front fender. Claimant immediately notified a representative of
Economy Tank Company, who advised that the grate "belonged to the State Road." Claimant then
notified respondent of the damage before leaving the scene of the accident. A representative of
respondent's St. Albans office came to the accident site and disavowed responsibility for the grate.
The uncontroverted testimony in this matter is that a worn grate with a concave shape caused the
damage. Claimant testified that the grate "kicked up" as his truck crossed it. The resulting damage
is estimated at $178.08, the amount upon which this claim is brought.
Respondent avers that the grate is not its responsibility, since the driveway upon which it is situate
is the property of Economy Tank Company. Respondent further argues that property owners are
responsible for maintaining the approach to their lot, inclusive of drainage. An encroachment permit
is required for private driveway access to state roads. This permit obligates and assigns maintenance
responsibility and liability to the property owner. The pertinent law is WV Code §17-16-9 and reads
The owner or tenant of land fronting on any state road shall construct and keep in repair all
approaches or driveways to and from the same, under the direction of the state....
Respondent's witness testified that the grate in question was not of the type approved by and installed
by respondent. Testimony also indicates that Economy Tank Company has routinely altered the
grating and by such actions has manifested dominion and control over same. Accordingly, the Court
can find no negligence upon the part of respondent and must deny the claim. The Court further holds
that respondent is not the proper party defendant.