OPINION ISSUED JANUARY 23, 1998
PAULA GIVENS
VS.
DIVISION OF HIGHWAYS
(CC-96-465)

Claimant represents self

Andrew F. Tarr, Attorney at Law, for the respondent.
PER CURIAM:



The claimant brings this action for damage to her 1984
Nissan 300 ZX automobile, caused when she encountered a rock slide
on Mile Fork Road, Route 27, near Charleston. The Court is of the
opinion that claimant is entitled to a partial award as described
below.

The incident giving rise to this claim occurred on July 30,
1996, at about 4:45 p.m., when claimant was driving northbound on
her way home from work. The evidence is that Route 27 in this area
is a one-lane paved road about 12 feet wide, with a 35
mile-per-hour speed limit. The claimant testified that she was
familiar with the road and drove it daily to and from work.



The claimant testified that she was coming out of a bend
in the road when she had to steer to the right to avoid an oncoming
vehicle. At this point the claimant states that her vehicle
encountered a rock slide that had spilled over onto the paved
traveled portion of the road, causing damage to the right front
fender. Claimant submitted a repair estimate of $934.83. The
claimant did not repair the vehicle, and eventually she traded it
in on the purchase of a pick-up truck. She carried liability
insurance only.



The claimant submitted several photographs of the rock
slide taken later the same evening that show the slide extending
into the traveled portion of the road. The claimant testified that
she knew this particular area frequently has rock slides and that
the area had recently received a heavy rain. She stated that the
slip she encountered was near a driveway leading to a trailer on a
hill above the roadway. According to the claimant, there were no
rock fall warning signs.



Calvert Mitchell, Elkview maintenance supervisor for the
respondent, testified that Mile Fork Road, Route 27, is a low
priority secondary road in terms of maintenance priority. He
testified that he was aware of a previous slip along the road,
after the trailer had been installed on the slope above the road.
He testified that some of the fill graded out from the trailer site
tended to slip down onto the road during heavy rain. He also testified that mud and gravel tended to run off from the driveway.
Mr. Mitchell submitted several photographs of the road taken on
July 3, 1997. It was his testimony that the photographs show that
the slide the claimant encountered occurred approximately 150 feet
past this driveway, on a fairly straight portion of the road with
relatively unobstructed visibility, while the claimant testified
that the slip occurred just passed the driveway entrance closer to
the curve.



It is the general rule in West Virginia, that the
unexplained falling of rocks or boulders onto a highway without a
positive showing that the respondent knew or should have known of
a dangerous condition posing injury to person or property is
insufficient to justify an award. Hammond vs. Dept. of Highways,
11 Ct. Cl. 234 (1977); Coburn vs. Dept. of Highways, 16 Ct. Cl. 68
(1986). The Court is of the opinion that the evidence establishes
that respondent had notice of the possibility of a rockfall on this
road.



Accordingly, the Court has determined that the
respondent was negligent in its maintenance of Route 27 on the date
of claimant's accident. However, the Court is also of the opinion
that the claimant was 25 percent at fault as she was aware of the
potential for rock slides in this area and she should have been
driving with particular care along this road. Therefore, the Court
is of the opinion to and does make an award in the amount of
$701.12, representing the amount of claimant's repair estimate
reduced by 25 percent.



Award of $701.12.