OPINION ISSUED JUNE 8, 2000
KENNETH ANDY KENNEDY D/B/A KENNEDY AUTO SALES
DIVISION OF HIGHWAYS
BETTY WILLIAMS STACY
DIVISION OF HIGHWAYS
S. Douglas Adkins, Attorney at Law, for claimants.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for
The claimants brought these claims being considered herein to
recover for damages to their respective properties as the alleged
result of respondent's negligent design and maintenance of the
drainage system on U.S. Route 52, in Delbarton, Mingo County. U.S.
Route 52 is a road owned and maintained by respondent. The Court
is of the opinion to make awards to the claimants in these claims
for reasons more fully set forth below. These claims were
consolidated for hearing by the Court.
Both of the claimants own property and reside on the west side
of U.S. Route 52 approximately two miles south of Delbarton. At
this location, U.S. Route 52 is a straight stretch of road that
traverses in a north-south direction. The hillside on the east
side of U.S. Route 52 slopes to the roadway. Claimants' properties
on the west side gradually slope toward Pigeon Creek, which is
located about one-hundred-fifty feet from the road surface of U.S.
Route 52. In the past, the road surface of U.S. Route 52 was in a
state of disrepair due to standing water on the road. As a result
of the water on the road, there were several automobile accidents.
Consequently, in 1987, respondent corrected the problem of standing
water by creating a tilt in the road surface of U.S. Route 52 at
this location to channel water to the west side of the road. In
1993, respondent widened the paved surface when it engaged a
contractor to pave the shoulders of the road.
After these measures had been taken by respondent, claimants
allege that they began to experience excessive water drainage from
the east side of U.S. Route 52. Moreover, across the road about
eight to ten feet south of the Kennedy and Stacy property, a
neighbor (identified as Neil Robertson) residing on the east side
of U.S. Route 52 placed a paved driveway which was twelve by
seventy-five feet. This driveway was constructed by the neighbor
without a permit from respondent as required by law. The driveway
exacerbated the water problems being experienced by both of the
claimants at that time, because the neighbor covered a bridge placed by respondent for water to flow through the ditch line. The
drain that he placed beneath his driveway apparently was inadequate
to carry all of the water in the ditch line so it flowed across the
road onto claimants' properties.
In June 1995, claimant Kenneth Andy Kennedy contacted Governor
Caperton's office about his drainage problem and he was referred to
respondent. Commissioner Fred VanKirk, in a letter dated July 6,
1995, stated "that the Division of Highways will do whatever we
feel is necessary to improve drainage patterns as related to our
roadway. Plans have been made to install a box and grate under the
driveway which enters onto US 52 across from your property. This
should alleviate the problem of water coming down the driveway out
onto 52 and eventually crossing the highway onto your property."
The letter further advised claimant Kennedy that his building sits
in a low area which acts a natural drainage area. The driveway
slopes toward the building and there are no slopes on the sides of
the building so the water is channeled toward the building. With
no gutters or downspouts, all the run off from the roof just ponds
around the building.
While respondent eventually removed the Robertson driveway,
the drainage structure ("box and grate") was not installed. Both
claimants allege that respondent's failure to respond promptly to
claimants' complaints caused the damages from the water run-off to
continue, worsening the problems already being experienced by
claimants. It is the position of claimants that the failure of the
respondent to address the drainage problem is the proximate cause
of the damages sustained to their respective properties.
The Kennedy property has been in the family of claimant
Kenneth Andy Kennedy since the 1920's. The residence in which
claimant makes his home with his wife was built on fill material in
1957. To the southwest of their residence is a building seventy
five feet from U.S. Route 52 which was constructed by the Mingo
County Economic Opportunity Commission in 1970. This structure has
a tin roof, but does not have gutters or downspouts. The rear of
the building is about ten feet from Pigeon Creek. Until 1986, the
Mingo County Economic Opportunity Commission occupied claimant
Kennedy's building. During this time, Mr. Kennedy asserted that he
had no knowledge of any water problems nor had he received
complaints from the Mingo County Economic Opportunity Commission
which used the building for storage of equipment that required a
At some time in the early 1990's, claimant began operating an
auto body shop in the building which is known as Kennedy Auto
Sales. He also sells used cars that he has parked in the lot in
front of the building adjacent to U.S. Route 52 and with a driveway
which abuts U.S. Route 52. This building has experienced water
problems since 1987. Claimant's wife, Patricia Kennedy, stated
that she telephoned respondent's main office in Charleston in the
spring in the early 1990's to describe the water problem and she
also telephoned the Mingo County office at least six to eight times during the 1990's. Claimant alleges that excessive water flows
from U.S. Route 52 bringing mud and water into the building. Clean
up efforts may take about one-and-a-half days to remove the mud
from the floor after the water recedes. The water has been as high
as six to seven inches in the building.
In an attempt to remedy the problems with the water and mud
getting into his building, Mr. Kennedy first installed a four-inch
perforated pipe covered with gravel on two sides of the building.
This action did not remedy the situation because sand and water
filled the pipe so he dug a ditch (described as a "moat") about two
feet deep along the sides of the building allowing the water to
flow into Pigeon Creek, but sand kept filling in the ditch. Since
this effort also failed effectively to eliminate the water problem,
he installed an eight-inch perforated pipe covered with gravel with
a drain box at the front door which connects to a 12-inch pipe from
which the water flows to the creek. This project, completed in
July 1999, provided some relief from the water problems experienced
in the building; however, water and sand still flow onto the gravel
driveway in front of the building which requires constant
maintenance efforts on his part. Mr. Kennedy has tried to make
improvements to his property with a backhoe and gravel in an
attempt to repair the damages caused by the water. The cost of
these improvements to his property is estimated in the amount of
$4,700.00. He does not have a homeowner's insurance policy that
provides coverage for the damages to his property.
Claimant Betty Williams Stacy bought her residence on U.S.
Route 52 in 1978. On the north side of the Stacy residence, which
is to the south of the Kennedy property, there is a twenty-four by
eighteen foot, one-and-one-half vehicle garage with a concrete
floor. Water that originates across the road flows onto claimant's
driveway creating gullies and ridges in the partially paved
driveway and then flows into the garage. Although the Stacy
property experienced water problems prior to 1993, Harvey Stacy,
claimant's husband, testified that these problems "got tremendously
worse" in 1993. When the garage floor started cracking in 1993, he
dug a ditch in front of the garage door in an attempt to divert the
water away from their residence. While the Stacy residence has a
gutter and downspout on the north corner and a corresponding
drainage system on the south corner, the gutter on the north corner
of the residence empties water directly onto the ground.
Both claimants offered respondent a right of way to perform
any necessary repairs to alleviate the water problems that they are
experiencing. The damage sustained to Mrs. Stacy's garage was
estimated in the amount of $10,000.00 to $11,000.00. She does not
have a homeowner's insurance policy that provides coverage for the
damages to her property.
Respondent's position is that it took immediate corrective
measures as soon as it received notice regarding the drainage
problem on U.S. Route 52. Respondent acknowledged that the road is
"super elevated" toward claimants' property and that it has always been that way. The paving performed in 1993 did not alter the
elevation of the road. The respondent had the berm paved on each
side. It contends that nothing was done during the project to
super-elevate the surface of the road. This road is designed to
channel water flow toward the west side of the road. At the time
of the paving project, claimants' neighbor's driveway was not paved
and there were no signs of erosion. Thus, a box and grate were not
installed. However, Senior Designer Phillip Van Daniels explained
that when claimants' neighbor paved his driveway, the
characteristics of the drainage system changed and a box and grate
became necessary. On two occasions, claimants' neighbor tore out
the ditch without respondent's permission, in order to install a
pipe and pave over it. When the driveway was finally removed and
the ditch was reconstructed, an inlet box was no longer necessary.
Likewise, Senior Engineer Technician Jimmie Messer testified that
he was present at the site on an occasion when water was present
and he did not observe water flowing on claimants' property.
Respondent asserts that both claimants lack proper drainage systems
on their respective properties and this has exacerbated the water
problems which they experience.
The Court has held that respondent has a duty to provide adequate
drainage of surface water, and drainage devices must be maintained
in a reasonable state of repair. Haught vs. Dept. of Highways, 13
Ct. Cl. 237 (1980). In claims of this nature, the Court will
examine whether respondent negligently failed to protect a
claimant's property from foreseeable damage. Rogers vs. Div. of
Highways, 21 Ct. Cl. 97 (1996).
In the instant claims, the evidence establishes that
respondent failed to maintain the drainage system on U.S. Route 52
at the location of the claimants' properties in a reasonable state
of repair to protect these properties from excessive water flowing
in the ditch line on the east side and from the water flowing on
the road surface itself. Respondent failed to take remedial action
when it had adequate notice as evidenced by the letter from
Commissioner VanKirk. The road surface is lower on the west side
to provide drainage for surface water which accumulates on the road
surface. This is necessary to protect the traveling public using
U.S. Route 52; however, respondent also has a duty to protect the
adjacent property owners from excess water which flows from the
roadway onto their properties. In the instant claims, respondent
is responsible for casting ground water onto claimants' property.
Respondent knew or should have known that damage to claimants' real
property would occur. Respondent should have been more diligent in
preventing the claimants' neighbor from dismantling respondent's
drainage system on U.S. Route 52. Therefore, the Court is of the
opinion that respondent, once having notice of the situation on
U.S. Route 52, negligently failed to take immediate and reasonable
action to prevent any further damage to claimants' properties from
excessive water flowing across the road.
Notwithstanding respondent's negligence, the Court is also of the opinion that both claimants bear some responsibility for the
damages to their properties as they also were negligent. Neither of
the claimants maintained adequate drainage systems on their
respective properties to deal with water run-off from their own
structures. Moreover, the claimants failed to establish the actual
amounts of monetary damages which they sustained to their
properties. In the Kennedy claim, claimant Kennedy estimated
damages in the amount of $4,700.00 for restoration work done on his
driveway and car lot. In the Stacy claim, Mr. Stacy produced an
estimate for damages in the amount of $11,000.00. The Court is of
the opinion that this estimate is suspect and that $7,000.00 is an
amount that the Court deems would be fair and reasonable for
replacing the concrete floor in the garage.
In a comparative negligence jurisdiction, such as West
Virginia, the negligence of a claimant can reduce or bar recovery
of a claim. The Court finds that each claimant was 49% negligent
for the resulting damages to his or her property. Since the
negligence of neither claimant is greater than or equal to the
negligence of respondent, each of the claimants may recover 51% of
his or her loss.
In accordance with the findings of fact and conclusions of law
as stated herein above, the Court is of the opinion to and does
make reduced awards to the claimants in these claims.
Award of $2,397.00 to claimant Kenneth Andy Kennedy d/b/a
Kennedy Auto Sales.
Award of $3,570.00 to claimant Betty Williams Stacy.