OPINION ISSUED DECEMBER 6, 1999
DAVID SCOTT GILLENWATER
DIVISION OF HIGHWAYS
Paul M. Stroebel, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for the value of his vehicle
after the berm on County Route 58 (Left Fork Road) gave way,
causing his vehicle to fall over an embankment. County Route 58 is
a road maintained by respondent in Lincoln County. The Court is of
the opinion to make an award in this claim for the reasons more
fully stated below.
The incident giving rise to this claim occurred on March 11,
1997, at approximately 9:00 p.m. County Route 58 is a rural
residential road classified as a secondary road with a speed limit
of thirty miles per hour. Guardrail is installed at several places
along the road. The width of the asphalt paved portion of the road
is about thirteen to fourteen feet. The north berm has a width of
two feet, while the south berm has a width of three feet. There
are no line markings on the road. At night, the line of sight on
the road in the area of the accident is approximately
According to respondent's daily records, there was a
significant flood in the area during the first part of March 1997.
This situation placed respondent's employees on the status of
emergency patrol of the roads. At the time, about three-fourths of
the roads in Lincoln County were being repaired. This flood
cleanup lasted for approximately three months. During this time,
respondent had been cleaning ditches on County Route 58. On the
day of the incident, a grader was used on County Route 58 to remove
excess mud which was then placed onto the berm of the road . This
road work left approximately three feet of mud on the side of the
road. Mud was hanging on the weeds along the side of the berm.
On the evening in question, claimant and a friend, Daniel
Miller, were returning from a fishing trip traveling eastbound on
County Route 58 in claimant's 1994 Toyota pick-up truck. The truck
had an odometer reading of 62,568. Earlier in the day, it had been
sprinkling. As claimant proceeded along the road with the aid of
the vehicle's headlights, he was met by an oncoming vehicle.
Claimant slowed the speed of his vehicle and veered over to the
south berm of the road in order to make room for the oncoming
vehicle to pass. The vehicle's passenger side terrain tires went
onto the south berm. Suddenly, the south berm gave way beneath the
weight of claimant's vehicle and his vehicle slipped down the
embankment, coming to rest on its top. Neither claimant, nor his friend, suffered personal injuries.
After the accident, Sergeant A. W. Robinson, a member of the
West Virginia State Police, investigated the incident, notified
respondent, and filed an incident report. Later in the evening, an
uncle of claimant's wife accompanied claimant to the site of the
incident to take photographs of the scene. The next day, claimant
and his parents went to the site and took additional photographs.
Claimant obtained an estimate of the vehicle damage which
stated that amount of repairs exceeded the value of the vehicle.
Consequently, the vehicle was declared to be "totaled." The blue
book value of the vehicle was in the amount of $4,950.00.
Claimant's vehicle was insured under a liability insurance policy,
but there was no collision insurance coverage for this incident.
Eventually, the vehicle was salvaged for $500.00.
This Court has been very consistent in regard to berm claims.
In Sweda vs. Department of Highways, this Court held:
"The berm or shoulder of a highway must be maintained in a
reasonably safe condition for use when the occasion requires, and
liability may ensue when a motorist is forced onto the berm in an
emergency or otherwise necessarily uses that berm of the highway."
Id., 13 Ct. Cl. 249 (1980) (citing 39 Am. Jur. 2d Highways,
Streets, and Bridges § 488).
When a motorist uses the berm of the road in an emergency
situation, that motorist may be entitled to recover damages if the
berm is not properly maintained by respondent. Meisenhelder vs.
Department of Highways, 18 Ct. Cl. 80 (1990).
In the instant claim, the Court is of the opinion that the
berm on County Route 58 (Left Fork Road) was not properly
maintained by respondent. The photographic evidence and testimony
adduced at the October 1, 1999, hearing demonstrated that the road
was not wide enough for two vehicles to pass on the road without
one of the vehicles having to use the berm. Respondent knew or
should have known this fact. As respondent cleaned the ditches on
County Route 58, it should have taken reasonable precautions that
the mud that was pushed onto the berm of the road was stable enough
to support a vehicle that was forced onto the berm of the road. In
this situation, claimant should have been able to rely on the south
berm on County Route 58 as he and his friend made their way back
from their fishing trip. Claimant's vehicle having fallen over the
south berm reflects negligent berm maintenance on County Route 58
by respondent for which claimant is entitled to recover his loss.
In view of the foregoing, the Court is of the opinion to and
does make an award to claimant in the amount of $4,450.00, the blue
book value of claimant's vehicle minus $500.00, which claimant
received for the salvage value of the vehicle.
Award of $4,450.00.