OPINION ISSUED DECEMBER 6, 1999
BEULAH BURKHAMMER, AS EXECUTRIX
OF THE ESTATE OF OKEY LOWTHER
VS.
DIVISION OF HIGHWAYS
(CC-95-307)
DORA TALBOTT
VS.
DIVISION OF HIGHWAYS
(CC-95-308)
Stephen F. Gandee, Attorney at Law, for claimants.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for
respondent.
STEPTOE, JUDGE:
In each of these cases the claimant seeks an award from the
Division of Highways (hereinafter the "State"), alleging that the
State was negligent in the design, construction, and maintenance of
the intersection, in Gilmer County, West Virginia, of two public
roads, U.S. Route 33 and W. Va. 47, and that as a result of the
State's negligence, Okey Lowther was killed in a two-car collision,
and his sister, Dora Talbott, received permanent injuries.
The Court ordered that the two cases be consolidated for
hearing, which began on the 6th day of April, 1999, at Flatwoods,
West Virginia, on the issue of liability only.
U.S. 33, broadly speaking, is a road which runs north and
south in West Virginia, and W.Va. 47 runs east and west. The
easterly end of W.Va. 47 is U.S. 33 so neither road crosses the
other, and their meeting place might be termed a "T" intersection.
The intersection is in a rural area, but there are a country
market and a filling station on the easterly side. U.S. 33 is the
right of way road, with the pavement being 26 feet wide with a good
base and shoulders and is asphalt covered with a double yellow line
designating the middle of the paved area. W.Va. 47 is asphalt
covered but is less wide.
The opening of W.Va. 47 into U.S. 33 is spacious, the
intersection having been redesigned and reconstructed in 1983.
The accident took place at about 2:35 p.m. on Tuesday, the
22nd day of November, 1990. The pavements were slightly wet, but
there was no evidence that water on the surfaces of the roads was
a factor in producing the collision. The air was clear except for
a light rain; no other vehicles were involved in the accident.
The 1989 Pontiac LeMans, owned and operated by Mr. Lowther,
and also occupied by Mrs. Talbott, who was seated on the right side
of the front seat, had been approaching from the west, and the
driver intended, upon entering the intersection, to make a left
turn into the northbound traffic lane of U.S. 33 and to proceed in a northerly direction towards Weston, their destination. The
evidence preponderates that Mr. Lowther stopped where he was
supposed to stop, near a "stop sign" in the southwest quadrant of
the intersection, which was intended to bring eastbound drivers to
a stop to look for other vehicles approaching the intersection on
U.S. 33, from each direction, before entering the intersection.
At about the same time a 1975 Chevrolet Camaro, owned and
operated by Charles K. Paxson (hereinafter "Paxson"), was
proceeding southwardly on U.S. 33 at a speed of or slightly less
than the posted speed limit of 55 miles per hour. His front seat
passenger was his wife, and their infant daughter was in the back
seat, well secured. He was not required by traffic signs to reduce
his speed in the intersection.
There were no known eyewitnesses to the accident except for
the drivers and the occupants of the two vehicles.
Shortly after the collision, Senior Trooper Michael Robinson,
of the West Virginia State Police, arrived on the scene and became
the investigating officer. The two damaged vehicles then were in
the positions in which they had come to rest after the collision,
and the Trooper was able to trace the movements of the two vehicles
between the place of collision and the places at which each came to
rest. He was also able to identify the point of impact of the two
vehicles by some gouge marks in the surface of the road in the
intersection, in the southbound traffic lane, probably near the
center. He inspected the Lowther vehicle and determined that the
point of initial impact was the left front of the vehicle; the
point of initial impact of the Paxson vehicle was its front.
Neither driver was cited by Trooper Robinson, who, however,
was not satisfied with Mr. Paxson's statement that immediately
before the accident he, Mr. Paxson, was driving between 50 and 55
miles per hour, and he later asked for the assistance and advice of
an accident reconstructionist, Trooper Leonard Miller, a trained
and qualified accident reconstructionist with three years
experience, who testified at the hearing as an expert witness.
Trooper Miller, at some time before or after making his
investigation at the scene of the accident, had an opportunity to
examine the damaged Paxson car (the Lowther car was not available),
and upon the basis of the measurements of its damaged sections, to
give a professional opinion that at the time of its collision with
the Lowther car, the speed of the Paxson car "could not have
exceeded the posted 55 mile an hour speed limit."
Early in May 1991, Trooper Miller and Trooper Robinson met at
the scene of the accident and made measurements of sight distances,
from the point at the intersection at which drivers intending to
enter U.S. 33 from W.Va. 47 actually stopped to determine whether
any vehicles were approaching the intersection, on U.S. 33, from
the north or from the south, and when it might be safe to enter
U.S. 33. One trooper seated himself in his cruiser (#1), at that
point, while the other trooper took his cruiser (#2), to a position
on U.S. 33 north of the high point on a vertical curve in the surface of the pavement of U.S. 33, a position which was out of
sight of the trooper in cruiser #1; then cruiser #2 was driven
slowly southbound until the bank of lights on the roof of cruiser
#2 was visible to the trooper in cruiser #1, and the point of first
visibility was determined to be 447.50 feet from the trooper in
cruiser #1; cruiser #2 was driven southward and downward until its
wheels were visible on the pavement; Trooper Miller cautioned,
however, that the sight distance between the Lowther car and the
Paxson car when the Paxson car first became partially visible to
Mr. Lowther on the day of the accident would be a little less than
447.50 feet because of the bank of lights on top of cruiser #2, and
opined, as did Lance Robson, hereinafter identified, the sight
distance of Mr. Lowther was probably 430 feet.
Trooper Miller also measured the distance between the point at
which the Lowther car was probably brought to a dead stop before
entering U.S. 33, and the point of collision of the two cars on
U.S. 33, and found said distance to be 38.33 feet; and he testified
that it would have taken Mr. Lowther 1.9 seconds to go that
distance from a dead stop, not counting reaction time.
Lance Robson, a registered professional civil engineer, from
Lancaster, Pennsylvania, called by the claimants, and qualified
before the Court as an expert in the fields of highway construction
design and of accident reconstruction, visited the scene of the
accident on December 6, 1993, and at the hearing of this case he
testified that the area of U.S. 33 hereinbefore described as the
vertical curve north of the intersection, but which he said should
be called a vertical crest curve, was "a little bit lower or pretty
much just on" the specification of the construction plans of 1982
... and "The worst I found was that at one point it was a hundredth
of a foot higher, so I concluded that the road had been built in
accordance with the plans." Mr. Robson used a photograph which he
took probably on December 6, 1993, from a point at the intersection
northward where he testified drivers intending to enter U.S. 33
from W.Va. 47 would stop before entering U.S. 33, to look for
approaching traffic on U.S. 33, northward toward the vertical curve
on U.S. 33. He testified that the camera lens height was 3'6"
from ground level, and that he saw the roof of a car at the
vertical crest curve which was four feet, six inches above ground
level, and that the sight distance between the two points was 430
feet.
Mr. Robson explained that his investigation and survey of the
intersection led him to the conclusion that the intersection had
been constructed in accordance with the plans and specifications as
provided by respondent to the construction contractor. He noted
that the plans contain a note stating that the "design speed" was
40 miles per hour. At the scene he noted that the posted speed
limit was 55 mile per hour. This appeared to be inconsistent to
him so he took his measurements for determining the sight distance
for the driver entering the intersection from W.Va. 47 and looking
left for oncoming traffic approaching from the north on U.S. 33 in order to determine if the sight distance was sufficient if oncoming
traffic was approaching at the posted speed limit. It is his
opinion that the intersection should have been designed for a speed
greater than the posted speed limit, and since it was not
constructed based upon that criterion, the sight distance at this
intersection "is inadequate for the operating speed by a
substantial amount." After explaining that Mr. Lowther was at the
"point of no return" in his decision-making process of making the
left turn onto U.S. 33, Mr. Robson opined that the design criterion
at 40 miles per hour was the wrong criterion and it should have
been designed based upon 60 miles per hour, and since the
intersection was already constructed, the cure for the problem
would be additional signs to warn the drivers approaching the
intersection on U.S. 33 at a posted speed of 55 miles per hour or
a lower speed, of the proximity of the intersection.
Matthew DiGiulian, a civil engineer employed by the Division
of Highways, testified that he received a request from a superior
about one year before the hearing of these cases, to review the
construction plans for the Linn Intersection work, which was
completed about 1988, to see if an adequate sight distance was
provided for a driver intending to enter U.S. 33 from W.Va. 47,
with particular reference to vehicles approaching from the north on
U.S. 33. He determined that the plans provided a sight distance,
from the intersection to the top of the vertical curve north of the
intersection, of 430 feet, which was sufficient, according to the
requirements of the American Association of State Highway and
Transportation Officials (AASHTO) Blue Book of 1965 for a road with
a speed limit of 40 miles per hour, but insufficient for a road on
which the speed limit is 45 miles per hour. He did not go to the
site of the accident. When asked about the difference between
design speed and posted speed, he said they are different and that
different criteria are used for speed limits.
The troopers and Mr. Robson differed as to the time it would
have taken Mr. Lowther to clear the southbound lane of U.S. 33
starting from a dead stop where drivers intending to enter make
their surveillance of U.S. 33 for other vehicles approaching the
intersection from the north or south, Trooper Miller testifying
that the time was 1.9 seconds from start-up to instant of collision
over a distance of some 38.33 feet, and Mr. Robson putting the time
at 4 to 5 seconds (the Court will assume that he would not disagree
with 4 ½ seconds).
The question is: How many feet was the Paxson car from the
collision point at the instant when Mr. Lowther from a dead stop at
the mouth of W.Va. 47, put his car in motion to cross the
southbound traffic lane of U.S. 33?
Trooper Miller correctly testified that a vehicle going 60
miles per hour will cover 88 feet in one second (5,280 60 = 88).
A mile is by definition 5280 feet, and a car driven at 60
miles per hour will, in one second, go 88 feet (5,280 60), as
Trooper Miller testified, and a car driven at 55 miles per hour will, in one second, go 80.663 feet (81 feet, as rounded off by Mr.
Robson).
The answer lies in a simple calculation of how many feet the Paxson
car traveled, at 55 miles per hour, in 4.5 seconds, (4.5 x 80.663
= 362.983 feet, or 363 feet rounded off).
Hence, at 363 feet from the collision point the Paxson car was
well within Mr. Lowther's sight distance of 430 feet, from the time
Mr. Lowther made his move until the instant of collision.
The Court concludes that Mr. Lowther was negligent in entering
U.S. 33 from W.Va. 47 when the Paxson car in the southbound lane
was approaching the intersection, and that Mr. Lowther's negligence
was the proximate cause of the accident in which Mr. Lowther was
killed and Mrs. Talbott was injured.
Claimants, however, without conceding that Mr. Lowther's
negligence was the proximate cause of the accident, contend that
the State was negligent and that its negligence was the proximate
cause, or a proximate cause of the accident resulting in the death
of Mr. Lowther and in the injuries sustained by Dora Talbott.
Specifically, each claimant makes the following allegations:
1. The West Virginia Department of Highways owed to the said
Dora Talbott and Okey Lowther and to other members of the traveling
public a duty to design, construct and maintain the highway in such
manner so as to protect the said Dora Talbott and Okey Lowther and
the traveling public against unreasonable risk of injury.
The said intersection of U.S. Route 33/119 and U.S. Route 47
was negligently and carelessly designed, constructed and maintained
by the West Virginia Department of Highways in such a manner as to
require a vehicle, traveling east on Route 47 such as were the said
Dora Talbott and Okey Lowther, to enter Route 33/119 at such a
degree and angle so as to create an unreasonable risk and safety
hazard and prevent a motorist from having sufficient visibility
distances to enter the said roadway in a safe fashion.
The said design, construction and maintenance of the
intersection by The West Virginia Department of Highways
negligently created such appurtenances and environmental barriers
which unreasonably and dangerously inhibited the sight distances
needed to safely enter into the intersection and unreasonably
inhibited the free flow of roadway traffic.
2. The West Virginia Department of Highways owed a duty to
the said Dora Talbott and to Okey Lowther and to other members of
the traveling public for the proper and safe placement and
operation of traffic control signals at the intersection of U.S.
Route 47 and U.S. Route 33/119.
3. At the time of the collision, The West Virginia Department
of Highways negligently and carelessly failed to place and maintain
adequate traffic control signs at the intersection on U.S. Route
33/119 and U.S. Route 47.
4. At the time of the collision, the West Virginia Department
of Highways, was aware and had knowledge that numerous other
automobile accidents had occurred at the said intersection since its design, construction and completion and the West Virginia
Department of Highways negligently and carelessly failed at any
time to take corrective action to prevent further such automobile
accidents from occurring.
5. The West Virginia Department of Highways further
negligently and carelessly failed to place and maintain adequate
warning signs about that roadway surface upon which the vehicle in
which the said Dora Talbott and Okey Lowther and other motorists
traveled that the roadway may be adversely affected when subject to
certain weather conditions.
The allegations will be addressed, seriatim:
1. Appurtenances and environmental barriers were created by
the State in the design, construction and maintenance of the
intersection of U.S. 33 and W.Va. 47 and the approach of U.S. 33 to
the intersection.
No evidence was submitted at the hearing to support this
allegation, and the Court finds as a matter of fact that the State
was not negligent as alleged, in this respect.
2. The State failed to install and maintain a traffic control
signal at the intersection. Charles Raymond Lewis, II, a
registered professional engineer of the Traffic Engineering
Division of the Division of Highways, who had been so employed
since 1971, testified that, "By definition, a traffic signal is a
traffic control device that alternately assigns the right of way.
It's an electrical device that alternately assigns the right of
way."
Mr. Lewis opposed placement of a traffic control signal at the
intersection, because the intersection seemed to operate very well
without it. Had he thought there was enough traffic to justify
consideration of such a signal, he testified, he would have
consulted the Manual on Uniform Traffic Control Devices (MUTCD) to
determine if a traffic control signal should be placed at the
intersection. The Manual, he testified, sets forth criteria for
the signal, called warrants, and if a signal is proposed, it must
have sufficient warrants, and if a signal is in place and does not
have sufficient warrants, the signal should be removed. Mr. Lewis
testified that a signal for the Linn Intersection did not have
enough warrants - "it wasn't close". The Court finds as a matter
of fact that the State was not negligent in failing to place and
maintain a traffic control signal at the intersection. See Gibson
v. Division of Highways, 19 Ct.Cl. 206 (1993).
3. The State failed to place and maintain adequate traffic
control signs at the intersection of U.S. 33 and W.Va. 47, and
their approaches.
The evidence adduced at the hearing on these complaints
indicates that the State, on the date of the accident, was in
compliance with the 1978 MUTCD and with the State's own design
guide.
Mr. Lewis, testified that there are three types of traffic
control signs on public roads:
a) regulatory signs;
b) warning signs; and
c) guide signs
The first sign on U.S. 33 that Paxson would have seen was a
notice that the driver is approaching a junction with W.Va. 47;
The second sign on U.S. 33 that Paxson would have seen was a
7 ½ foot by 2 ½ foot guide sign, a green and white assembly giving
major destinations, in this case Glenville on U.S. 33 and Burnt
House on W.Va. 47; and
The last sign, called a Final Turn Assembly, was a guide sign,
and informed the approaching driver in which lane he should be if
intending to continue on U.S. 33, and which lane he should take if
intending to leave U.S. 33 and to turn right onto W.Va. 47.
Mr. Lewis also testified as to traffic signs in place on W.Va.
47, immediately before the accident, notifying a driver driving
from the west that he was approaching U.S. 33.
a) the first sign was an assembly sign of a junction
ahead with U.S. 33 (and U.S. 119), and that W.Va. 47 would end at
that junction;
b) the second sign was a 7 ½ foot by 2 ½ foot green and
white guide sign informing the driver approaching from the west
that at the end of W.Va. 47, if he wished to go toward Weston, he
should make a left turn on U.S. 33, and if he wished to go to
Glenville, he should make a right turn into U.S. 33;
c) the third sign was a stop sign, informing the driver
approaching U.S. 33 from the west that he must stop and that
traffic already on U.S. 33 has the right of way and that he does
not have the right of way; and
d) the fourth sign was a final turn assembly sign,
indicating to drivers on W.Va. 47 the number designations of roads
available to him at the intersection and what direction to follow.
All seven of the foregoing signs were guide signs except the
stop sign, which was classified as a regulatory sign. There were
no warning signs, the State's position having been that the
described traffic control signs on U.S. 33 and W.Va. 47 were
sufficient to notify approaching drivers of the imminence of the
intersection. Mr. Lewis testified that at one time the MUTCD
provided for a limited sight distance sign, but it was taken out of
the Manual (a singular event in Mr. Lewis' memory) and, to the best
of his knowledge it was because the public did not understand it.
The Court finds as a matter of fact that the State erected and
maintained signs on the approaches to the intersection on U.S. 33
and W.Va. 47; and that its failure or refusal to erect a special
"limited sight distance" on U.S. 33 to warn southbound drivers was
not a negligent act. See Gibson v. Division of Highways, Id.
4. The State failed, while on notice of an elevated number of
accidents at the intersection, to take corrective action to prevent
such accidents from occurring.
Claimants rely upon records of the State of reports of motor
vehicle accidents at this intersection (at point designated as 26.86, a mile post). Mr. Lewis testified as to two reports in the
record designated as Claimants' Exhibit No. 10, and read the kinds
of engineering data provided in the reports.
The first report of accidents, covering the period from
October 1, 1983 to October 31, 1986, in which there were ten listed
accidents, is as follows:
Linn Intersection Accidents
10/1/83 - 10/31/86
10/29/83
1) Car 1 Car 2
Car 3
heading south straight ahead
no improper driving
heading north then turning left changing lanes improperly
heading west stopped in traffic lane
no improper driving
10/29/83
2) Car 1
Car 2
heading north, entering or leaving driveway, circumstances unknown
heading west - going straight ahead
7/15/84
3) Car 1 Car 2
heading west then turning left,
circumstances unknown
heading south going straight ahead -
no improper driving
9/11/84
4) Car 1
Car 2
hit tree no special reference - foggy
heading east going straight ahead
none involved
9/25/84
5) Motorcycle
Car
heading south, going straight ahead -
circumstances unknown
heading east then turning left
2/5/85
6) Car 1
Car 2
heading east going straight ahead -
slippery pavement
heading north
circumstances unknown
9/22/85
7)Motorcycle
Truck
heading west going straight ahead -
no improper driving
heading east - then turning left -
did not have right of way
3/5/86
8) Truck
Car
heading south going straight ahead -
did not have right of way
heading west going straight ahead -
no improper driving
8/1/86
9) Car 1
Car 2
heading west going straight ahead -
no improper driving
heading north going straight ahead -
no improper driving
10/22/85 HEAD-ON COLLISION
10) Car 1
Car 2
heading west going straight ahead
heading east, going straight ahead -
no improper driving
The second report of accidents, covering the period from
1/1/87 to 1/22/90, in which there were seven listed accidents at
the Linn Intersection, Mile Post 26.86, is as follows:
Linn Intersection Accident Listings
1/1/87 - 1/22/90
1/12/87
1) Car 1 Car 2
Car 3
heading east going straight ahead -no improper driving
heading south going straight ahead - did not have right of way
heading west slowing or stopping -no improper driving
1/21/87
2) Car 1
Car 2
side swipe - heading west - going straight ahead - no improper
driving
heading west going straight ahead -
no improper driving
5/28/88
3) Car 1
Car 2
heading east going straight ahead -
circumstances unknown
heading north then turning left -
circumstances unknown
6/9/88
4) Car 1 Car 2
Car 3
heading north going straight ahead - circumstances unknown
heading east going straight ahead -circumstances unknown
parked - no improper driving
3/20/89
5) Car 1
Car 2
heading south then turning left - did not have right of way
heading east going straight ahead -
no improper driving
11/22/90
6) Car 1 (sic).
Car 2
heading west going straight ahead-
V.O.B. HILLCREST
heading south then turning left
V.O.B. HILLCREST
In an internal working memorandum, an intersection safety
study, prepared by Mr. Lewis for his management in the Traffic
Engineering Division, dated June 2, 1988 (Claimants' Exhibit No.
12), he reported on his inspection of the Linn Intersection on May
24, 1988, that:
"During the three-year data period there were six accidents at
the intersection for a rate of 3.37 accidents per million entering
the intersection. Five of the six accidents were `at angle' and
one involved a left turn. There was no consistency or pattern to
the `at angle' accidents.
"A field review of the intersection on May 24, 1988, revealed
only minor deficiencies. The length of the stop bar on WV 47 is
not adequate and the centerline on WV 47 is worn out at the
intersection. The stop bar should be extended and the centerline
possibly installed with lane tape.
"The intersection is on a crest and drivers exiting WV 47
cannot see the pavement to the east [north] on US 33. Sight
distance to approaching vehicles is adequate. Other than renewal
of the pavement markings as indicated above, no action is
recommended."
The listings of 16 accidents at the intersection on which claimants base their complaint about the high rate of accidents use
the rate of accidents as a reason for concluding that it was
dangerously and negligently constructed, and maintained, is not
supported by the statistics of the Traffic Engineering Division in
Claimants' Exhibit No. 13, which show that of the accidents:
1 case in which the driver changed lanes improperly
8 cases in which the circumstances were unknown
1 case in which the driver hit a tree
1 case in which the accident was attributed to slippery
pavement
4 cases in which the drivers did not have the right of way,
and
1 case in which the vision of each driver was obstructed (this
case)
The Court finds as a matter of fact that the statistics on the
accidents at the intersection from October 1, 1983 to January 22,
1990, do not prove that before January 22, 1990, the Linn
Intersection was dangerously and negligently designed, constructed
and maintained, and that the State was not negligent in failing to
correct alleged errors.
5. The State failed to advise, by signs along U.S. 33 and
W.Va. 47 in the vicinity of the Linn Intersection, that weather
conditions might affect motorists adversely. There is no evidence
that water on the surface of the roads in the intersection was a
causative factor in the accident.
As to the claimants' allegation (which was not made in their
respective complaints or in any amended complaints) that respondent
was negligent in the design of the intersection, based upon the
fact that the intersection was designed for a 40 miles per hour
speed but was posted for a speed limit of 55 miles per hour, the
Court has determined that design speed does not control the posting
of a speed limit. According to Mr. Lewis, design speed is a number
to provide certain parameters to be met for putting the road
together, i.e., providing a set of criteria for the geometric
design of the highway. On the other hand, setting the speed limit
is a regulatory function for the Commissioner of Highways. The
Commissioner bases this decision for the speed limit upon
recommendations made by traffic engineering technicians who have
analyzed data collected in the field. It is not unusual in West
Virginia for the speed limit to exceed the design speed, and design
speed, in most cases, is not known to the traveling public.
The Court finds that the State was not negligent in posting a
speed limit of 55 miles per hour for U.S. 33 at this area
notwithstanding the fact that the plans denote a design speed of 40
miles per hour in the area.
The Court also finds as a matter of fact that the sole cause
of the death of Okey Lowther and of the injuries sustained by Dora
Talbott was the negligence of Okey Lowther in entering U.S. 33 in
the face of oncoming traffic having the right of way.
The Court also finds as a matter of fact that the State was not guilty of any negligence proximately causing, in whole or in
part, the death of Okey Lowther and the injuries sustained by Dora
Talbott.
The Court makes no award to Beulah Burkhammer, as Executrix of
the Estate of Okey Lowther.
The Court makes no award to Dora Talbott.
Claims disallowed.
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