OPINION ISSUED DECEMBER 2, 1991
TIMOTHY L. KEELY AND LINDA J. KEELY
DIVISION OF HIGHWAYS
Claimant appeared in person.
James D. Terry, and Glen A. Murphy, Attorneys at Law, with Alan Williams, legal intern, for
On or about 6:30 p.m., January 27, 1991, the claimants' 1989 Chevrolet Cavalier was struck by
falling rock at the intersection of State Route 14 (Greenbrier Street) and Hillcrest Drive, Kanawha
County. Overhanging the intersection is a 100 foot high cliff. Claimant, Timothy Keely, testified that
on the evening in question rock began to fall on their vehicle as they were awaiting the intersection
traffic light to turn green. There was a vehicle immediately in front of the claimants' car, and one
behind, preventing their escape from the falling rock. A twelve inch by eight inch rock struck the
hood of the claimants' car, and a smaller rock chipped their rear window. Repairs to the vehicle were
estimated to cost $406.82.
Claimants have a $500.00 deductible on their car insurance, that effectively precludes recovery for
the described damage. Fortunately, the claimants and their 12-month-old child were not injured in
this accident. However, they have sought to recover the property damage, arguing that respondent
was negligent by not maintaining the cliff and safeguarding the traveling public from the hazard.
Testimony is uncontroverted that falling rock signs are absent in the vicinity of the cliff. Timothy
Keely testified that he was aware of the falling rock in the area, having previously observed falling
rock in the area. Mr. Keely testified that he "grew up in that area and used to travel (Greenbrier
Street) every day." When asked how often rock fell, Mr. Keely testified, "...every time it rains."
When asked whether he had contacted respondent to inform them of this hazard, Mr. Keely answered
Respondent avers that it is not responsible for the rock fall, and was not otherwise negligent.
Respondent's witness, Calvert Mitchell, a road maintenance supervisor, testified that no complaints
had been received about rock falls in the accident area.
The case law governing liability for rock falls permits a finding of negligence against respondent,
when "it has been demonstrated that respondent knew or should have known that a particular area
of highway was dangerous because of frequent rock slides, and adequate precautions to remove the
hazard or warn motorists were not taken." Hammond v. Dept. of Highways, 11 Ct.Cl. 234 (1977).
This Court has additionally held that "the lack of falling rock signs does not make the State liable,
without convincing evidence of such a hazard." Jude v. Dept. of Highways, 13 Ct. Cl. 28 (1979).
Conversely, claimant testified that he was aware that rock falls occurred in the described area, and
had seen rocks in and along the road-side prior to the accident. As the State is neither an insurer nor
a guarantor of the safety of persons traveling on its highways, the Court must deny this claim. Adkins
v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). For the respondent to be held liable for damage
caused by the rock fall, it must have had either actual or constructive notice of the condition and a
reasonable amount of time to take corrective action Davis v. Dept. of Highways, 11 Ct.Cl. 150
(1977). It appears to this Court that the requisite notice was not provided to respondent. The Court
is therefore of the opinion to deny the claim.