OPINION ISSUED JULY 13, 1999
LINDA K. DUNCAN AND RICHARD L. DUNCAN
DIVISION OF HIGHWAYS
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for the respondent.
The claimants brought this action for damage to their vehicle
after claimant Richard L. Duncan was driving their 1976 GMC pickup
truck and he encountered a hole at the edge of Manilla Creek Road
in Poca, Putnam County. Claimants' vehicle sustained damage during
this incident for which they claim $2,100.00. Claimants' insurance
coverage is for liability only, but they did receive $400.00 for
Claimant Richard L. Duncan and a friend were proceeding in
pickup truck on Manilla Creek Road on September 16, 1997, when the
vehicle went into a hole described as being a broken off section of
the edge of the road which was two feet long and one and a half
feet deep at the edge of the road. Manilla Creek Road was
described as being a narrow, one lane
road approximately 12 feet in width.
Claimants lived about one mile from the area of the incident. Mr.
Duncan was very familiar with the road and drove it on a daily
basis. He explained that on this particular occasion his truck
went into the hole at the edge of the road and proceeded over the
hill striking some trees which actually stopped the truck from
going further down the hillside.
The report compiled by the investigating law enforcement
agency, the Putnam County Sheriff's Department, was introduced into
evidence by Mr. Duncan. The officer marked two boxes "Failure to
Maintain Control" and "Other Roadway Defects" on the front of the
report and he wrote in the description that "... a portion of
roadway was missing and truck rolled over embankment on right side
of roadway". The investigation was completed while claimants'
truck was still at the scene, but some hours after the accident.
Mr. Duncan had proceeded immediately after the accident with his
friend to the hospital for medical treatment.
Claimants' pickup truck was totaled as a result of this
accident. Mr. Duncan received about $500.00 and $400.00 from his
insurance carrier for all of the glass breakage which occurred. He
estimated the value of the truck at $3,000.00 for a loss of about
Respondent did not offer any witnesses or other evidence at
The Court assumes that Manilla Creek Road in Putnam is a State maintained road. It is a narrow road apparently serving residents
in the area. It is blacktopped, but according to the claimant, Mr.
Duncan, there is little, if any, berm on the side of the road at
least in the direction in which he was traveling on the date of the
incident. The deteriorated condition of the edge of the roadway in
September 1997 leads this Court to opine that the respondent did
not maintain the roadway in proper condition; however, claimant
Richard Duncan was very familiar with the road. The Court has
determined that Mr. Duncan did not use the proper precaution of the
reasonable, prudent driver while traversing Manilla Creek Road on
the date of his accident. Therefore, the Court concludes that the
parties were equally negligent and under the doctrine of
comparative negligence the claimants may not recover.
In accordance with the findings of the Court as stated herein
above, the Court denies this claim.