OPINION ISSUED JUNE 30, 1992
CYNTHIA J. MAHAFKEY
DIVISION OF HIGHWAYS
Claimant represents self.
James D. Terry, Attorney at Law, for respondent.
On January 1,2 1992, the claimant, a resident of Dunbar in Kanawha County, was traveling east on
Interstate 64 at approximately 6:45 a.m. when her vehicle went over rocks and debris scattered upon
the center lane of the interstate near the Oakwood exit within the city of Charleston. The claimant
testified that she noticed the rocks and debris within her headlights range only some 20 feet before
impact due to the early morning darkness. She further testified that falling rock and related warning
signs were not present in the area. Parallel traffic prevented the claimant from changing lanes to
avoid the rocks and debris. When her vehicle, a 1988 Chevrolet Cavalier collided with the fallen
material, it sustained substantial damage to the suspension system. The vehicle has been repaired at
a cost of $1,185.09. This claim was brought in the amount of $1,251.76, which includes a towing
charge of $66.67. The claimant maintains only liability automobile insurance.
The respondent contends that the claimant's accident was caused by an act of nature over which it
has no control. Mancie Legg, whose responsibilities for respondent include interstate maintenance
supervision within the Charleston District, testified that he was unaware of the claimant's accident
and that no rock fall response activity is noted on the time sheets (also referred to as the DOH-12s)
for January 12, 1992. However, he stated that there have been complaints of rock falls in this area
at a rate of "a couple of months or so" depending upon the weather. He further stated that there are
no falling rock signs in the area.
The case law governing liability for rock falls bases a finding of negligence on the part of the
respondent when it has been demonstrated that the respondent knew or should have known that a
particular area of highway was dangerous because of frequent rock slides, and adequate precautions
to ameliorate the hazard or warn motorists of the peril were not taken. Hammond v. Dept. of
Highways, 11 Ct. Cl. 234 (1977). This Court has held in prior claims that the lack of falling rock
signs does not render the State liable without convincing evidence of such a hazard. Jude v. Dept.
of Highways, 13 Ct. Cl. 28 (1979). The testimony in the instant claim establishes that respondent had
constructive notice of the existence of a rock fall hazard within the described accident area, and that
precautions were not taken to ameliorate this hazard. The Court is of the opinion that the negligence
on the part of the respondent resulted in the damages to claimant's vehicle.
In accordance with the findings of fact and conclusions of law as stated herein above, the Court
makes an award to the claimant in the amount of $1,251.76.
Award of $1,251.76.