OPINION ISSUED APRIL 2, 1992
DIVISION OF HIGHWAYS
Claimant appeared in his own behalf.
James D. Terry, Attorney at Law, for respondent.
On June 17, 1991, the claimant and his wife traveled from their Branchland, Lincoln County
residence to Huntington, by way of Four-Mile Road and County Route 8. Upon returning to
Branchland later that day, the claimant's wife, Jean Clay was driving the claimant's 1984 Chevrolet
Cavalier when the vehicle struck a guardrail near the entrance to the Pound Fork Bridge in
Branchland on Four-Mile Road. The claimant alleges that the wife could not have avoided colliding
with it. As a result of the collision, the claimant seeks to recover the amount of $799.60 for repairing
the front side and bumper of his vehicle.
The respondent denied negligence and asserted that intervening and superseding causes were the
proximate cause of the claimant's damage, and that such damage is not directly attributable to any
act or omission on the part of the respondent.
The Court, having considered the evidence in this claim, finds that vandalism caused the guardrail
to become dislodged from its mounting and left upon the road-side. Timothy S. Pullen, a road
maintenance supervisor for respondent in Lincoln County, testified that neighborhood children were
probably removing bolts from the wooden support blocks that attach the guardrails to the posts. The
children wanted the wooden support blocks. These blocks were valued as either firewood, or for their
allegedly intoxicating smoke. The witness further testified that one child had recently been
asphyxiated while attempting to burn (smoke) a block. After a second incident involving the
attempted theft of the blocks occurred, the respondent adopted a policy of cutting off the bolts that
affix the blocks and battering their ends so that removal of the bolts and blocks would be all but
impossible without a torch.
From the foregoing facts the Court has determined that the acts of a third party caused and created
the road hazard that proximately caused the claimant's vehicle damage. The vandalism to the
guardrail support is an intervening and superseding act. Accordingly, the respondent did not have
notice of or any opportunity to guard against such malicious act(s). Respondent cannot be held
responsible for the consequences. It is apparent that once the conduct of the vandals was discovered,
the appropriate measures were taken by the respondent to prevent further mischief.
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. See Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947).