OPINION ISSUED JANUARY 28, 2000
SHELIA F. SEABOLT
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage sustained when
her vehicle struck a hole when she was traveling northbound on U.
S. Route 19, approximately one and one-half miles north of Birch
River. U. S. Route 19 is a road maintained by respondent in
Nicholas County. The Court is of the opinion to make an award in
this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on March 5,
1997, at approximately 10:30a.m. On the clear morning in question,
claimant was proceeding northbound from Craigsville toward Grant
County in her 1986 Chevy Cavalier on U. S. Route 19. Claimant
travels this portion of highway about once per week. At the time
of the incident, construction work had restricted the travel
portion of highway to one ten foot lane with a yellow divider line
down the middle and no lines on the edges on the pavement. In
addition, there were orange and white barrels on the side of the
highway. Due to the construction on the highway and the vehicles
ahead as well as behind her vehicle, claimant operated her vehicle
at a speed of forty-five miles per hour in a sixty-five miles per
hour speed zone. Suddenly, claimant observed a hole in the road,
but she was unable to avoid it because of her situation. The
driver's side of the vehicle struck a ten to twelve inch hole in
the pavement. The impact damaged two tires, broke the vehicle's
windshield and required the vehicle to be re-aligned. The loss
sustained by claimant was in the amount of $358.15. Claimant's
liability motor vehicle insurance policy did not provide insurance
coverage for this incident.
Respondent acknowledged that there was ongoing construction on
U. S. Route 19. Employees of respondent were familiar with the
defective condition of U. S. Route 19, and knew that it was in a
bad state of repair. According to respondent, the contractor for
the U. S. Route 19 project, J. F. Allen Construction Company, Inc.,
which was under a "save harmless" obligation to respondent, was
responsible for the construction work at the location in question.
During the winter months, respondent was on snow and ice removal
and had difficulty reaching the contractor. However, respondent
established that it patrolled and repaired holes regularly in order
to protect the traveling public.
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, claimant must prove that respondent had
actual or constructive notice. Pritt vs. Dept. of Highways, 16 Ct.
Cl. 8 (1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
In this present claim, the evidence established that
respondent had actual notice about the hazardous condition of U. S.
Route 19 in Nicholas County. As this Court stated in Bailey vs.
Div. of Highways (CC-98-146, unpublished OPINION ISSUED September
8, 1999), respondent had employees at the construction site
responsible for supervising the actions of the contractor with
regard to the safety of the traveling public. Respondent had an
obligation and a duty to assure that the U. S. Route 19
construction site was maintained in a proper manner such that it
did not pose a hazard to the traveling public. The Court is of the
opinion that respondent's employees are responsible for supervising
the actions of the contractor at the construction site, and, on the
date of the incident herein, did not take reasonable steps to
ensure the safety of travelers upon U. S. Route 19. The failure of
respondent's employees to supervise the contractor properly
constitutes negligence for which claimant may recover her loss.
The "save harmless" clause relied upon by respondent is not
applicable in a claim of this nature as there is no privity between
claimant, a third party, and the parties to the construction
contract. See Bailey, id.
In view of the foregoing, the Court is of the opinion to and
does make an award to claimant in the amount of $358.15
Award of $358.15