OPINION ISSUED JUNE 29, 2001
JEREMY TAIT HUNT
VS.
DIVISION OF HIGHWAYS
(CC-96-492)

Letisha Bika, Attorney at Law, for claimant.

Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for
respondent.
STEPTOE, JUDGE:

Claimant, Jeremy Tait Hunt, brought this action for permanent
physical injuries he sustained when the vehicle in which he was a
passenger went off a bridge on Sate Route 49 in Thacker, Mingo
County. The driver of the vehicle and claimant were traveling
northbound between Edgarton and Matewan. At this location, State
Route 49 is maintained by respondent, the Division of Highways.
The Court is of the opinion to disallow this claim for the reasons
more fully stated below.
FACTS OF THE CLAIM

The incident giving rise to this claim occurred on June 26,
1993, at approximately 12:30 p.m. On the day in question, the
sixteen year-old claimant was a passenger in a 1991 Ford Escort
driven by Celia Michelle Murphy.
Since the incident in question,
Celia Michelle Murphy has married and her name has changed to Celia
Michelle Stumbo. The Court will refer to this witness using her
maiden name. The vehicle was owned by Ms. Murphy's father, Larry
Murphy. Ms. Murphy and the claimant were traveling northbound on
State Route 49 at a speed of about thirty to thirty-five miles per
hour, in the opinion of Ms. Murphy. The unposted speed limit for
this road was fifty-five miles per hour. Ms. Murphy regularly
traveled this portion of road of State Route 49 on her way to and
from high school. She was very familiar with the road. At the
time of the incident herein, claimant and Ms. Murphy were
proceeding from her residence in Edgarton towards Matewan with the
final destination being the Huntington Mall.

At this location, State Route 49 is a two-lane road with
double yellow lines indicating the center of the road and white
lines on the edges of the pavement. Ms. Murphy testified that the
road was in a state of disrepair. She asserted that there were
ruts in the pavement. The weather on the day in question was rainy
and the roads were wet. As Ms. Murphy drove over a crest at the
top of a hill on State Route 49, she proceeded downhill towards the
Grapevine Bridge at the bottom. When the vehicle began moving
downhill, Ms. Murphy testified that the vehicle began to hydroplane
and she lost control of the vehicle. She panicked, shut her eyes,
and took her hands off the steering wheel. Ms. Murphy further
testified that after she released the steering wheel, she
remembered the claimant having grabbed the steering wheel. At that point, the vehicle left the surface of the road, went to the right
of the Grapevine Bridge, proceeded in the air across Grapevine
Creek and Lick Fork Road, struck the northeastern side of the
embankment at the north end of the bridge, flipped in the air, and
landed on its top on Lick Fork Road directly beneath the Grapevine
Bridge. Ms. Murphy sustained personal injuries which were not
permanent in nature. Ms. Murphy recalled that she did not have the
automatic shoulder harness across her body, but she did have on the
lap belt. She did not believe that claimant had on his lap belt.

The claimant herein was very familiar with State Route 49 at
the scene of this accident. He went back and forth to high school
using this stretch of roadway. On the day of this incident, he
explained that he was tired as he had worked that night before and
his mother took him to Michelle Murphy's home so the two of them
could go to the Huntington Mall. He testified that it was raining
at the time. He was in a reclined position in the passenger seat
in the vehicle with both of his seat belts, the lap belt and the
shoulder harness, in place. He recalled that he heard Ms. Murphy
scream, he then raised up in his seat, leaned forward to try to
place his hands on the dashboard, and realized that they were
already going off the bridge. He stated that he "didn't have time
to even say nothing (sic). I was just overwhelmed by what was
happening. It just was unreal." In his opinion, the vehicle was
going 40-45 miles per hour immediately prior to the accident.
Claimant testified that there were two sags in the pavement in
their lane of travel, one located about six to eight inches from
the yellow line and the other located about one and one-half to two
feet from the white line. He remembers being in the vehicle under
the bridge after the accident, but he could not see because of an
injury to his forehead. He described Ms. Murphy as being
"hysterical and freaked out." He felt numb, his face was sore, and
he was having trouble breathing so he "kind of laid still."

Emergency personnel were alerted by some people who were at
the scene under the bridge. The emergency crews arrived at the
scene in order to transport both claimant and Ms. Murphy. Claimant
was taken to an area where a medical helicopter flew him to St.
Mary's Hospital in Huntington, Cabell County, because of the
severity of his injuries.

Claimant in this action contends that the respondent was
negligent in its maintenance of State Route 49 and the Grapevine
Bridge on State Route 49 on the date of the accident described
herein above. Claimant asserts that respondent failed to properly
maintain the road surface of State Route 49, specifically on the
downgrade portion approaching the Grapevine Bridge, and that this
failure caused the vehicle in which claimant was a passenger to
hydroplane. Further, claimant alleges that respondent failed to
replace a portion of the guardrail that was missing on the
Grapevine Bridge and that this guardrail would have prevented the
vehicle in which he was a passenger on June 26, 1993, from going
over the embankment and landing in the area below the bridge, causing him to suffer severe injuries.

Respondent's position is that the proximate cause of the
accident was the failure of the driver to maintain control of her
vehicle; the speed of the vehicle at the time of the accident; the
action of the claimant in grabbing the steering wheel; and the
condition of the tires on the vehicle. As to the issue of the
maintenance of the bridge, respondent asserts that the guardrail
was not a factor in this claim for two reasons: first, the area
where the vehicle in which claimant was a passenger went off the
Grapevine Bridge on State Route 49 was an area where the missing
guardrail would not have extended; and second, even if the
guardrail were present, the accident still would have occurred and
the vehicle still would have gone into the ravine resulting in the
injuries to the claimant.

This accident was investigated by a member of the West
Virginia State Police, Trooper First-Class Michael Allen Smith. At
the location in question, Trooper Smith took about thirty
photographs of the scene which were admitted into evidence.
Statements from the claimant and Ms. Murphy were taken on another
occasion by another trooper. Trooper Smith concluded in his
Uniform Traffic Accident Report that the driver of the vehicle, Ms.
Murphy, was exceeding a safe speed limit due to the fact that she
lost control of the vehicle, it was raining, and the surface of the
road was wet. He came to this conclusion because there were no
observable skid marks and the vehicle had crossed the area over
Grapevine Creek and Fork Lick Road before striking the other side
of the embankment. Although the speed limit for State Route 49 at
this particular location is 55 miles per hour, Trooper Smith
acknowledged that there was a difference between the speed limit
and a safe speed. He was of the opinion from his observations at
the accident scene that Ms. Murphy should have been operating the
vehicle at a slower speed. It is his opinion that "a driver has to
adjust for any conditions he might encounter. Just because the
speed limit is say for instance 55 or 75 on the highway, you know,
if safety doesn't warrant that speed, you shouldn't go that speed."
Ms. Murphy was not issued a citation by Trooper Smith for this
incident. Trooper Smith did not recall seeing any ruts in the road
surface of State Route 49. He stated that if he had thought that
there was a problem with the road, he would have taken photographs
of the area. He was also of the opinion that he would have taken
additional photographs of any unusual conditions on the surface of
Route 49 if he had noticed these during his investigation. He was
of the opinion that he remembered being concerned about all of the
area surrounding the accident scene due to the severity of the
accident. He was requested to review photographs of the accident
scene during his testimony and he made various marks on these
photographs including a mark on the a photograph of the hillside
where he thought the vehicle struck the hillside before falling
into the area beneath the bridge.

The Grapevine Creek Bridge was constructed by respondent in 1961. It is sixty-three feet in length, twenty-three feet five
inches in width and has a weight limit of fourteen tons. Since the
bridge has a weight limit of less than fifteen tons, it is not a
posted bridge. The bridge is suspended about twenty-five feet over
Grapevine Creek and Lick Fork Road. Proceeding northbound, the
bridge first crosses over Grapevine Creek and then it crosses over
Lick Fork Road. A power line is suspended about one-quarter from
the southern end of the bridge over Grapevine Creek.

The evidence in this claim establishes that bridges throughout
the State of West Virginia are inspected every two to four years in
accordance with federal regulations. These inspections are
performed by individuals designated as bridge inspectors and
reports are written for the specific bridge inspected. Generally,
within one month of a bridge inspection, the report is prepared.
This report is reviewed by an evaluation engineer who signs it on
the first page and by the bridge engineer in the particular
district. These reports are then sent to respondent's office in
Charleston. If there is a critical structural problem, the
evaluation engineer informs his superior or a supervisor in the
area immediately. Otherwise, the repair process may take longer.
For the Grapevine Bridge, Mansour Saber was the evaluation
engineer. His focus for the bridge inspection reports is to note
any deficiencies in the structure of the bridge, i.e., the
underneath of the bridge, the steel, the connection, anything that
might indicate that the bridge could fall. Any non-structure
related problems such as the condition of the guardrails on the
bridge are not within his area of responsibility. The bridge
engineer would be the individual in a district to address an issue
regarding guardrails.

During the hearing of this claim, four of respondent's bridge
inspection reports dated December 11, 1989; May 16, 1989; May 20,
1991; and June 3, 1993, were admitted into evidence. Each report
included photographs of the location in question, and each report
indicated that eighteen feet of guardrail on the eastern side of
the bridge was missing. Bridge Inspector Johnie Lee Clagg
inspected the bridge on December 11, 1989, and noted in his report
that a portion of guardrail was missing. His inspection report
also noted that as of December 11, 1989, the Grapevine Bridge was
not in a safe condition and corrections should be made. During the
six years following the December 11, 1989, report, until the date
of claimant's incident, the condition of the bridge remained
unchanged even though the average daily travel count increased from
1,900 to 3,300 vehicles by June 3, 1993. Bridge Safety Inspector
III, Roger Eugene Chapman, inspected the bridge on June 3, 1993.
In that report, he noted that the guardrail was damaged, in
critical condition, and should be replaced. However, he could not
remember having seen any approach guardrail at this location on the
Grapevine Bridge in any of his inspections of the bridge. These
reports substantiate the allegation of the claimant that there was
guardrail missing on the Grapevine Bridge and that this fact was known by the bridge inspectors who were assigned to inspect this
bridge.
According to District II Administrator Wilson Braley, the May 16,
1989, report that indicated the deficiencies on the Grapevine
Bridge, including the missing guardrail, created a critical
condition on the bridge. He stated that guardrail at the ends of
the bridge are flared out and were not attached to the side of the
bridge. In addition, he acknowledged that the May 20, 1991,
report also mentioned that the guardrail was in critical condition
and needed to be replaced.

As the District II Administrator, it was Mr. Braley's
responsibility to assign the work for guardrail repair. If the
project was one that would take three to six months to complete, he
would obtain a purchase order and hire a contractor to do the
project. In order to replace the missing guardrail on the
Grapevine Bridge, Mr. Braley testified that two pieces of guardrail
should have been sufficient to complete the project. Guardrail
usually comes in sections about thirteen feet long to provide
coverage for an area of about twelve feet, six inches. Guardrail
is connected with vertical posts, often called "lookout posts."
The "lookout posts" are welded to the outside beam of the bridge.
From 1985 to 1987, respondent's maintenance office in Mingo County
stocked guardrail and would have been responsible for its
installation. The Mingo County Supervisor, Barry Mullins, testified
that he is on State Route 49 on a regular basis, but he did not
inspect the bridge for any missing guardrail. He asserted that if
he had seen any missing guardrail, he would have had it replaced.
He further stated that he would remedy any hazard or danger
immediately. Of course, these repairs would be temporary because
the Mingo County office does not have the equipment or skill to
conduct more permanent guardrail repairs. He stated that once he
received notice of an incident, he would make an on-site inspection
of the area in question. Evidence adduced at the hearing indicated
that the West Virginia Maintenance Manual (1989 edition) states
that guardrail inspections are to take place twice per year.
Repairs are to be noted on a form in triplicate and scheduled. Mr.
Mullins stated that his office does not have any such form and no
such inspection program is in place. Maintenance Assistant Jimmie
Messer testified that when guardrail is missing, he would discuss
the issue with the County Supervisor and no written records would
be made unless there was a complaint. According to Mr. Messer, in
1993, if guardrail was damaged in a few sections, a contractor
would do the routine replacement work, but he was not prepared to
testify if that extended to bridges.

According to claimant's expert Dr. Kenneth William Crowley, a
highway traffic engineer, if the missing section of the guardrail
on the Grapevine Bridge would have been properly maintained, this
incident involving the claimant would not have occurred. Dr.
Crowley did not visit the site, but he based his calculations on the measurements obtained by Donald Underwood, respondent's expert
in accident reconstruction. Although, Dr. Crowley used these
measurements, he opined that the measurements obtained by
respondent gave "the illusion of precision." Moreover, it is Dr.
Crowley's opinion that the purpose of guardrail is to help keep
errant vehicles on the road. The presence of guardrail extends the
time for vehicular stopping points and reduces the severity of
impacts. Dr. Crowley acknowledged that guardrail is a hazard in
and of itself, so it is only placed where it is needed.

In order to establish his position, Dr. Crowley calculated two
momentum analyses of the incident in question. The concept of
"momentum" was defined as weight of a vehicle times the speed of
the vehicle times the angle of the vehicle. The weight of the
vehicle was estimated at 2,550 pounds, including the vehicle and
passengers. First, Dr. Crowley determined the speed of the
vehicle. He did this by calculating the distance traveled and the
distance dropped based upon the laws of speed and gravity. The
speed of the vehicle was estimated between thirty and fifty-three
miles per hour. Ms. Murphy testified that the speed of the vehicle
was about thirty miles per hour. Claimant testified that the speed
of the vehicle was about forty-five miles per hour and Mr.
Underwood determined the air speed of the vehicle as it left the
edge of the pavement at about fifty-three miles per hour. Dr.
Crowley opined that the highest possible speed of the vehicle was
fifty-eight miles per hour.

Calculating the angle of impact of the Murphy vehicle with the
guardrail was also part of Doctor Crowley's analysis in this claim.
He used impact angles of twenty-five degrees for the first analysis
and fifty-three degrees for the second analysis. He determined the
angle of impact from tread marks he identified in photographs. It
is his opinion that the tire marks on the bridge indicate that the
vehicle was going straight and that it was not skidding at the
point of impact. The trajectory of the vehicle followed the bridge.
If the vehicle had impacted higher on the embankment, the speed
would be higher than if the point of impact was lower on the
embankment. Based upon his calculation, Dr. Crowley determined that
the impact momentum would be less than the weight of the Murphy
vehicle; therefore, the presence of guardrail would have contained
the Murphy vehicle on impact and directed it back to the road. Dr.
Crowley opined that at the top speed of the vehicle, the guardrail
would have directed the Murphy vehicle to a safe situation.
At thirty-five miles per hour, Dr. Crowley opined that the vehicle
would have struck the base of the embankment. Dr. Crowley also
estimated the speed needed to clear the power wire under the bridge
at thirty-five miles per hour.

Furthermore, Dr. Crowley defined the action of vehicular
hydroplaning as being the involuntarily loss of control by the
driver of the vehicle because of water on the road surface. Turning
the steering wheel while hydroplaning would not affect control of
the vehicle. Dr. Crowley stated that it would be possible for a vehicle to hydroplane with ruts in the road surface. The tire
would float in the low spots or ruts in the road. Dr. Crowley was
unable to opine whether claimant's action in grabbing the wheel was
prudent because it would depend on the situation. If the pavement
had been dry, Dr. Crowley believed that the vehicle would have
veered to the left or right.

Since early 1999, respondent's expert in auto accident
reconstruction, Donald Lee Underwood, visited the accident site six
times. On three occasions, he and Charles Raymond Lewis, II, a
traffic engineer for respondent, searched for a possible point of
impact of the Murphy vehicle in the northeastern side of the
embankment. In the spring of 2000, Mr. Underwood found what they
believed to be physical evidence of the point of impact of the
vehicle. Mr. Underwood was climbing on the embankment when he
found a small piece of glass in the hillside. It is his opinion
that the glass was of the type used for automobile headlights.
Therefore, he believed that this was the point of impact for the
Murphy vehicle. Mr. Underwood acknowledged that he was not sure if
the glass that he found belonged to the Murphy vehicle. Also, Mr.
Underwood was unaware of other accidents in the same location and
he acknowledged that vegetation had grown up in the area and it is
a rocky embankment.

Mr. Underwood used the angles, distances, and elevations based
on the glass shard to calculate the point of impact. He also based
this point upon a survey of the bridge performed by Roger Newsome,
one of respondent's surveyors, who calculated the elevation by
establishing a point on the bridge and measuring to the point of
impact on the hillside. The slope was determined to be 61.70 feet
and the elevation was determined to be 100 feet. A vertical
distance of 8.49 feet was determined from the point where the glass
was located in the hillside to the top of the embankment. The 8.94
feet is the difference in elevation from the abutment on the
southern wing wall to the point of impact. Using the survey
results, Mr. Underwood then calculated the point of impact of the
Murphy vehicle and the speed at which the vehicle was traveling
when it left the roadway. Mr. Underwood determined the airborne
speed to be fifty-three miles per hour.

As a part of his investigation, Mr. Underwood examined the
photographs taken of the scene on the day of the incident. One of
the photographs depicts a tire imprint on the abutment. Mr.
Underwood opined that this was characteristic of a rolling tire,
which he believed indicated no brake application. However, Mr.
Underwood was unaware of which tire of the Murphy vehicle if any
made the impression. He acknowledged that if in fact the mark was
from the passenger side tire, then the Murphy vehicle would have
been going slower according to his speed calculation. Mr.
Underwood also acknowledged that the speed calculation is
sensitive. He estimated a measure of five miles per hour per one
foot drop. Mr. Underwood could not precisely pinpoint the point of
departure and no measurements were made. In addition, Mr. Underwood testified that photographs of the Murphy vehicle after
the incident indicates evidence of tire wear. He could obtain the
speed of the vehicle only from its point of departure from the
bridge, which he termed the "airborne speed." Based upon all the
factors that he took into consideration, he was of the opinion that
the calculation of speed of the Murphy vehicle at fifty-three miles
per hour was reasonable and accurate.
ANALYSIS AND CONCLUSIONS OF LAW

The Court desires to first address respondent's contention
that the claimant was somehow negligent in his action if he grabbed
the steering wheel in an attempt to prevent an accident. The Court
is of the opinion that the facts do not support this contention.
The driver of the vehicle stated that she closed her eyes and took
her hands off the steering wheel when she felt the vehicle was out
of control. The claimant remembers being in a reclined position
and having time only to reach for the dashboard before the vehicle
was airborne. The Court believes the claimant's version of his own
actions. Accidents occur in milliseconds of time. The driver had
her eyes closed as well as being hysterical so it is difficult to
believe that she would have been cognizant of what was going on
inside the vehicle. Even if her version is to be believed, would
not a reasonable, prudent person observing that the driver released
the steering wheel be in a position of feeling forced to grab the
steering wheel of the vehicle? Is this not the expected reaction
of a passenger in an emergency situation? This Court cannot agree
with the position of the respondent. In fact, the sudden emergency
doctrine is a viable doctrine under comparative negligence. Moran
v. Atha Trucking, Inc., 208 W.Va. 379, 540 S.E.2d 903 (1997). The
sudden emergency doctrine defines conduct to be that expected of a
prudent person in an emergency situation. The essential element of
the sudden emergency doctrine is that a party not have time for
reflection. The Court is of the opinion that the doctrine could be,
and, in fact, would have been applicable to the claimant herein if
the Court had found that the evidence established that the claimant
had grabbed the steering wheel in an attempt to gain control of the
moving vehicle. However, as previously stated, the Court concludes
that the evidence does not support the theory that the claimant is
responsible in some way for the accident; therefore, there is no
basis for this position of the respondent.

Claimant alleges that the accident began when the vehicle
began to hydroplane on State Route 49 because respondent's
negligent maintenance of the surface of State Route 49. The
evidence fails to establish that the road surface was the cause of
the driver's loss of control of her vehicle. The photographs taken
by Trooper First Class Smith, the investigating officer of the
accident, and placed in evidence do not exhibit any unusual road
surface conditions. The officer himself explained to the Court
that if the road surface had exhibited a condition other than that
normally anticipated, he would have noted that fact on his Uniform
Traffic Accident Report. He indicated that he also would have taken photographs of any abnormal road condition during his
investigation. The Court is of the opinion that Trooper
First-Class Smith performed an in-depth investigation of this
accident and the Court accepts his statements about the condition
of the surface of State Route 49. Therefore, the Court concludes
that the cause of the driver losing control of her vehicle was not
the fault of any negligent maintenance of State Route 49.

Therefore, the critical issue to be addressed in this claim is
whether or not there was a defective condition having to do with
the guardrail and whether respondent had notice of this defect and
a reasonable time to repair it. The claimant bases the crux of his
claim upon the fact that a section of missing guardrail on the
Grapevine Bridge constitutes actionable negligence on the part of
respondent. The well-established principle of law in West Virginia
is that the State is neither an insurer nor a guarantor of the
safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va.
645; 46 S.E.2d 81 (1947). In order to hold respondent liable for
road defects of this type, a claimant must prove that respondent
had actual or constructive notice of the defect and a reasonable
time to take corrective action. Chapman vs. Dept. of Highways, 16
Ct. Cl. 103 (1986). When the condition of a bridge should have
been anticipated by respondent, its failure to maintain the bridge
properly constitutes negligence. Eller vs. Div. of Highways, 13
Ct. Cl. 155 (1980). This Court has also held that respondent does
have a duty to maintain existing guardrail or replace missing
guardrail on bridges in a timely manner. Woody vs. Dept. of
Highways, 18 Ct. Cl.29 (1989). In Shabdue vs. Sims, the Court held
that the State's failure to properly repair and maintain the floor,
railing, and guardrail of a bridge in a reasonably safe condition
constituted negligence. 142 W. Va. 805, 98 S.E.2d 433 (1957).

The evidence in this claim clearly establishes that the
guardrail on the Grapevine Bridge was defective; that respondent
had actual notice of the missing guardrail; and that respondent had
a reasonable time in which to effect repairs. The respondent's
bridge inspection reports clearly demonstrate that there was
eighteen feet of guardrail missing on the eastern side of the
bridge. From the date of the first available bridge inspection
report, dated May 16, 1989, there were notations that the guardrail
and handrail are in critical condition and that railing should be
replaced. The evidence in this claim clearly established that as
of December 11, 1989, the Grapevine Bridge was not in a safe
condition and that it should have been corrected. This was some
three and a half years prior to the accident which is the subject
matter of this claim. Subsequent reports reiterate that an
eighteen foot section of guardrail was missing from the upstream
side at abutment number one.
Furthermore, the Mingo County Maintenance Office also had at
least constructive notice, if not actual notice of the missing
guardrail on the Grapevine Bridge and failed to take any action
whatsoever to remedy the situation. Certainly respondent's employees frequently traveled State Route 49 during routine road
inspections which necessitated their driving across the Grapevine
Bridge.

The Court is of the opinion given the testimony that the
respondent had actual notice of the damaged and missing guardrail
on the Grapevine Bridge, and respondent had more than a reasonable
time to repair to make the appropriate repairs. Respondent knew or
should have known that the failure to replace the guardrail
presented a hazard to the traveling public. As respondent's
employees were in agreement that the guardrail should have been
replaced; that this condition posed a hazard to the traveling
public; and, that the purpose of the guardrail is to deflect
traffic on an errant path on the roadway, the Court concludes that
the failure to act on the part of the respondent is inexcusable and
an act of gross negligence.

However, the crux of this case is the proximate cause of the
accident and subsequent injuries to the claimant. The law in West
Virginia requires that a finding of negligence, in and of itself,
is insufficient to find liability on a party. To constitute
actionable negligence there must be a finding that the negligence
was the proximate cause of the injuries to the complaining party.
Roush vs. Johnson, 139 W.Va. 607; 80 S.E.2d 857 (1954); Matthews
vs. Cumberland & Allegheny Gas Co. 138 W.Va. 639, 77 S.E.2d 180.
(1953). This issue rests upon whether or not the negligence of the
respondent in failing to replace this missing guardrail was the
proximate cause of the accident. If the Court finds that the
injuries to the claimant would not have occurred but for the
negligence of the respondent, then a recovery on behalf of the
claimant would be in order. The testimony of claimant's expert,
Dr. Kenneth Crowley, would have the Court enter into the world of
speculation. According to Dr. Crowley, if the guardrail had been in
place, if the vehicle struck the guardrail at a particular angle,
and if the guardrail were of such and such a strength, then the
vehicle in which claimant was a passenger would not have gone
airborne, struck the hillside on the north side of the Grapevine
Bridge, and would not have dropped into the bottom of a ravine
causing injuries to the claimant. What would have happened to the
vehicle if it had struck a guardrail, of course, cannot be
answered. This Court, in its determinations of many claims
previously heard and submitted for decision, has declined to
speculate in order to find liability upon a respondent State
agency. Mooney vs. Department of Highways, 16 Ct. Cl. 84 (1986);
Phares vs. Division of Highways, 21 Ct. Cl. 92 (1996).

The Court is constrained by the time-honored principle of law
that the preponderance of the evidence must establish that the
negligence of the respondent is the proximate cause of the injuries
to the complaining party for there to be a recovery. It is the
opinion of the Court in the claim herein that the preponderance of
the evidence does not support a finding that the negligence of the
respondent was the proximate cause of the accident that resulted in the serious injuries suffered by the claimant. The proximate cause
of the accident herein was the driver error committed when the
driver failed to maintain control of her vehicle. At that point,
the existence or non-existence of the guardrail, even if the
missing 18-foot section would have covered the area where the
vehicle went off the paved portion of the road, becomes a moot
issue. Who can say what would have happened at that juncture of
the on-going action of the vehicle? What if the vehicle struck the
guardrail head on and flipped over? Would both occupants be alive
today? Would they have suffered no injuries? This Court declines
to speculate as to what could or would have happened. It cannot
answer these questions to its satisfaction. Therefore, the Court
concludes that the proximate cause of the accident in this claim is
driver error, and not negligence on the part of the respondent.

The Court is most cognizant of the severity of the injuries to
the claimant, and the Court is most sympathetic with the plight of
the claimant. Claimant Jeremy Tait Hunt appears to the Court to be
a young man who is determined to accept his physical limitations
and to live his life to the fullest. The Court has the utmost
respect and admiration for this young man. However, the Court
cannot speculate to the degree required in this claim that the
severe and permanent injuries he suffered in this accident were
proximately caused by the negligence of the respondent. Thus, the
Court is required by the applicable law to hold that there may be
no recovery on the part of the claimant in this claim.

In accordance with the finding of facts and the conclusions of
law as stated herein above, the Court is of the opinion to and does
deny this claim.

Claim disallowed.
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