OPINION ISSUED JUNE 29, 2001
ALFRED E. COLLINS and NANCY C. COLLINS
VS.
DIVISION OF HIGHWAYS
(CC-98-290)

Michael L. Glasser, Attorney at Law, for claimant.

Andrew F. Tarr and Xueyan Zhang, Attornys at Law, for
respondent.
WEBB, JUDGE:

Claimants brought this action for permanent physical injuries,
loss of consortium, and property damage sustained when a vehicle
being drivenby claimant Nancy Collins collided with a concrete
barrier erected at a bridge construction site while she was
traveling southbound on State Route 65 in North Matewan, Mingo
County. At this location, State Route 65 is maintained by
respondent. The Court will make an award for the reasons more
fully set forth below.
FACTS OF THE CLAIM

The incident giving rise to this claim occurred on May 31,
1998, at approximately 9:15 p.m. On the day in question, claimant
Nancy C. Collins was driving a 1988 Chevrolet S-10 pickup truck.
The vehicle was owned by her husband Alfred E. Collins. Mrs.
Collins was traveling southbound on State Route 65 in North
Matewan, Mingo County. According to Mrs. Collins, she was
traveling at "no more than twenty-five miles per hour." The posted
speed limit was forty-five miles per hour. It was a dark and rainy
night. The roadway surface was wet. The bridge at issue in this
claim is commonly referred to as the Red Jacket Bridge, and it is
located in North Matewan. State Route 65 runs north and south
across the Red Jacket Bridge. Mrs. Collins routinely traveled this
portion of highway. She traveled north on State Route 65 and
crossed the Red Jacket Bridge to get to her place of employment,
Mate Creek Mining Company, Inc., which is located in Red Jacket.
Mrs. Collins had worked for Mate Creek Mining Company, Inc., for
the previous six years, and she averaged working five days a week
.

Red Jacket Bridge was under construction at the time of this
incident. Construction began on May 26, 1998, and the bridge was
completely closed to traffic going both directions. The respondent
set up a detour around the construction site just north of Matewan.
The detour then crossed over a small creek, curved back to the
right to by-pass the construction on the Red Jacket Bridge, and
ended on the south side of the bridge where traffic was directed
back onto State Route 65 on the opposite side of Akers' Supply
Company, Inc. The bridge was blocked off with four barriers on
both ends. These barriers were concrete and were similar or identical to the type of concrete barriers used to divide an
interstate highway.

Sometime between approximately 5:30 p.m. and 6:00 p.m. on
Sunday, May 31, 1998, claimant Nancy Collins went to work. She
traveled Route 65 north to Red Jacket, as she routinely did, to get
to Mate Creek Mining Company, Inc. The visibility at this time was
good. Mrs. Collins testified that as she approached the detour at
the construction site, which would have been the south end of the
Red Jacket Bridge, all she saw was "a piece of large equipment
setting in front of the bridge in the road, that side of the bridge
(the south end of the bridge ) in front of the bridge." Mrs.
Collins testified that she knew that the bridge was closed on the
south end. She had traveled that very same route on four separate
days during the previous week. Mrs. Collins got off work at
approximately 9:00 p.m. and proceeded to travel back to her home in
Matewan. She was traveling south on State Route 65 when she drove
around a curve and came upon a small straight stretch just before
the Red Jacket Bridge. As she approached the Red Jacket Bridge,
two of the four concrete barriers were opened up, giving her the
impression that southbound traffic was being directed through the
barriers. Previously these barriers on both sides of the bridge
were placed upright, side by side, blocking access to the bridge.
Mrs. Collins testified that on one of the open barriers there was
a " red fluorescent type arrow ". She testified that she thought
this arrow was directing her to travel between the barriers and
then across the Red Jacket Bridge.

As she started to drive between the two open barriers, her
vehicle suddenly struck another concrete barrier that was knocked
over on its side. She stated that she did not see this barrier due
to the darkness and the rain. Her vehicle struck the barrier
resulting in a violent impact of her vehicle with the barrier when
the vehicle came to a dead stop.

Claimant states that upon striking the barrier, the impact
threw her forward and her head struck the windshield, causing the
windshield to shatter. She described the impact as violent. It
jerked her backwards and forwards, knocking her head into the side
window. After the vehicle came to a stop, claimant took her
seatbelt off and quickly exited the truck. Local residents came to
assist. She went inside one of their homes and someone called the
police for help. Sergeant Scott Wigal of the West Virginia State
Police responded to the scene of this accident to conduct a formal
investigation.

Claimant did not go to the hospital on the night of this
incident; however, she was in serious pain the day following the
accident so she had her husband, claimant Alfred Collins, drive her
to the emergency room at Williamson Memorial Hospital where she was
treated and released. The claimant was instructed to follow up with
another physician upon release. She then sought treatment from Dr.
Lura Beth Williams, a Doctor of Chiropractic, located in South
Williamson, Kentucky.

Claimants assert that respondent negligently placed barriers
at the bridge site; that it negligently failed to illuminate the
bridge; and that it failed to place the proper warning signs and/or
signals in place for the southbound traffic. Claimant Nancy
Collins asserts that respondent's negligence has caused her serious
injuries including injuries to her neck, mid back, low back, and
hip. She is seeking an award for past medical expenses, economic
loss both past and future, and pain and suffering. Claimants
Alfred E. Collins and Nancy C. Collins have been married seventeen
years. Alfred Collins seeks an award for loss of consortium due to
his wife's injuries. He asserts that his wife's injuries have
negatively affected their marital relationship. He also seeks an
award for damages to his truck in the amount of $2,800.00.

Respondent's position is that Nancy Collins was or should have
been aware of the on-going construction project at the Red Jacket
Bridge and that the bridge was closed. Further, she could and
should have avoided the barriers completely by simply using the
detour. The project to repair the Red Jacket Bridge began on
Tuesday, May 26, 1998. Respondent argues that since claimant
traveled this same portion of road to and from work on May 26, May
27th, May 28th , and finally on her way to work on the evening of
the incident, Sunday, May 31, that she knew or should have known
the bridge was closed. Respondent argues, since claimant knew that
the northbound portion of the bridge was closed as she traveled to
her job at approximately 5:30 p.m. on May 31, she should have also
known that the southbound portion of the bridge was closed as well.
Respondent also contends that if there were any problems with
warning signs or the placement of the barriers, it did not have
notice of these problems until after claimant's accident on May 31,
1998.

Sergeant Scott Wigal was the Assistant Detachment Commander in
Mingo County at the time of this incident. Sergeant Wigal arrived
at the scene at 9:35 p.m., shortly after the incident. He
testified that although he vaguely remembers being at the scene of
this accident near Red Jacket, he did not have any specific
recollection of the details other than the information provided in
the Uniform Traffic Accident Report which he completed on May 31,
1998. Sergeant Wigal took Mrs. Collins' statement at the scene.
He noted in his report that Mrs. Collins did have both her lap and
shoulder harness belts on at the time of the incident. He also
noted the weather and road conditions at the time of the accident.
Specifically, he noted that it was dark, rainy, and that visibility
was obscured by the rain. In addition, the black top road surface
was wet. Sergeant Wigal concluded that Mrs. Collins "Failed to
Maintain Control" of her vehicle and that her vehicle collided with
a concrete barrier in the roadway. He testified that it was his
opinion that claimant's failure to maintain control of her vehicle
was a contributing cause to this incident. He did not cite the
claimant with any improper driving nor did he conclude that she was
speeding or driving too fast given the circumstances. When questioned to clarify his finding that claimant failed to maintain
control of her vehicle, he responded that based upon his training
at the academy, a driver has a responsibility to avoid colliding
with "normal things like road construction equipment and barriers
and so forth."

Sergeant Wigal's testimony regarding the signs at or near the
scene also was based upon the notes he made in the Uniform Traffic
Accident Report. He stated that he had no direct memory of it,
but, referring to the accident report, he noted that there was a
detour sign north of the concrete barriers and a bridge closed sign
just south of the concrete barriers in the vicinity of the accident
vehicle. Sergeant Wigal indicated in his report that the "Bridge
Closed" sign was lying on the roadway near claimant's vehicle. He
also testified that there was a detour sign north of the concrete
barriers, but he did not recall any other detour signs, bridge
closed signs, or other warning devices, including flashing lights
and he did not indicate any being present at the scene in his
report. Sergeant Wigal admitted that if there had been any other
signs, flashing lights, or red flags, he probably would have
indicated such in his report. He also agreed that since his report
made no mention of any illumation on the side of the bridge which
claimant struck, it was safe to conclude that there was no such
illumination. It was his opinion that the vehicle had struck two
concrete barriers and then came to rest in between the two
barriers. However, he did admit after reviewing photographs of the
vehicular damage submitted in evidence that this evidence did raise
some questions as to whether or not claimant may have struck a
third barrier which had been lying in the roadway on its side and
that this would be consistent with the damage to claimant's
vehicle.

An owner of a business adjacent to the accident site, David B.
Akers, testified about the scene of this incident as well as
testifying regarding the number of accidents at this location, both
prior to and after claimant's incident. Mr. Akers described the
detour scene. He stated that there were four concrete barriers at
each end of the bridge which were lined up side by side in a
straight line so as to completely block traffic from crossing the
bridge. These barriers were approximately thirty-six to forty
inches high. However, the barriers were not locked together nor
were they anchored to the ground. Mr. Akers testified that these
barriers were struck numerous times by other vehicles. He
testified that there were approximately ten accidents involving
vehicles colliding with these barriers within the first week to ten
days of this project. Although he never saw any vehicles strike
the barriers, he heard many of the collisions and he assisted
drivers whose vehicles had struck the barriers or whose vehicles
got stuck on the barriers. Mr. Akers and some of his employees
would use Akers' heavy equipment to assist respondent's bridge crew
in replacing the barriers.

Mr. Akers also testified that these barriers had arrows painted on them with a fluorescent orange or red-like color that
directed the southbound traffic to veer to the left to enter the
detour. He stated that there were not any signs, signals, or
directions other than the arrows painted on the barriers,
indicating to the traffic that it had a left detour ahead. It was
his opinion that this was one of the main reasons why so many
vehicles collided with these barriers. He described how drivers
traveling south on State Route 65 would come upon this detour
suddenly and without adequate warning. Furthermore, the detour
sign referred to in the accident report is approximately a quarter
mile north of the project. He does not recall any other signs
between this detour sign and the bridge. In his opinion, many
drivers did not realize that there was a detour, and their vehicles
would clip the barriers and knock some of them over. He also
testified that when these barriers were hit and turned sideways,
"it would have been pretty likely that a car could have went
through there."

David McCoy also testified regarding the nature of this
construction site, and as to the number of accidents involving
vehicles slamming into the concrete barriers. David McCoy's home
is adjacent to the Red Jacket bridge. The front of David McCoy's
home is approximately thirty-five to forty feet from the nearest
barrier. He heard many vehicles collide with the concrete
barriers, and he would see the damage to the barriers and how much
they had been moved around as a result of these collisions. He
helped people who had just struck the barriers to make sure they
were all right, and he also assisted the employees from Akers'
Supply in placing the barriers back into position so as to prevent
anyone else from striking them. Mr. McCoy also testified that most
of the collisions occurred at dark or just before dark. He
explained during his testimony that his son had driven his vehicle
into the same concrete barriers that the claimant drove into. He
testified that his son's vehicle collided with these barriers at "a
high rate of speed either on May 29 or May 30, 1998." This
collision displaced the barriers, and, according to David McCoy's,
testimony, the barriers were not replaced or moved back into
position so as to fully block the bridge. As far as warning signs
are concerned, David McCoy testified that there was a "Bridge
Closed" sign that was set up on something like a tripod brace. He
testified that the sign did not always stay up throughout the
bridge construction. It was knocked over "routinely" by people
and the wind would even blow it down. He had to pick the sign up on
at least four different occasions and set it back up.

Respondent asserts that it was in total compliance with the
Federal Traffic Control Manual for Street and Highway Construction
and Maintenance Operations, adopted by the West Virginia Division
of Highways in 1994. Specifically, the respondent was referring to
Case A12 of the Manual. The respondent presented testimony through
Edwin Layman, who is the Transportation Services Supervisor for
District II, regarding the requirements of the Case A12 and its application in this case. Mr. Layman testified that he was
responsible for having the proper signs in place at the
construction project in accordance with the provisions of the
manual. He sent his crew to set up the signs at this project and
he went to the project shortly afterwards and field checked what
had been done on May 27, 1998. Mr. Layman testified that when a
project falls under the specifications of this manual, then it must
be used, and all specifications must be followed. He also
testified that he took a copy of the Case A12 diagram and slowly
drove through the project to make sure that each sign that was
required to be in place according to the manual was actually in
place.

ANALYSIS AND CONCLUSIONS OF LAW

The well established principle of law in the State of West
Virginia is that the State is neither an insurer nor a guarantor of
the safety of travelers upon its roads. Adkins v. Sims, 130
W.Va.645; 46 S.E.2d 81 (1947). However, the State does have a duty
to exercise reasonable care and diligence in the maintenance of its
highways under all circumstances. Adams vs. Dept. of Highways, 14
Ct. Cl. 214 (1982); Hobbs vs. Dept. of Highways 13 Ct. Cl. 27
(1979). In order to hold the 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). Finally, to be actionable, negligence must be the
proximate cause of the claimant's injuries. Louk vs. Isuzu Motors,
Inc. 198 W.Va. 250; 479 S.E.2d 911 (1996); Roush v. Johnson, 139
W.Va. 607, 80 S.E.2d 857 (1954).

The first issue in this claim is whether or not the respondent
had the proper signs in place to provide adequate notice to
drivers that the Red Jacket Bridge remained closed to southbound
traffic on Route 65. Second, if respondent did have the proper
warning signs in place, were these placed in a proper, secure
manner and in proper working condition. Given the testimony
presented at the hearing of this matter, it is this Court's opinion
that respondent did not fulfill its obligations to the claimant
herein.

A review of the testimony from various witnesses familiar with
this scene and State Route 65 establishes that there was inadequate
warning to the southbound traffic of the approaching detour. It is
evident that the "bridge closed" sign was not properly placed nor
secured, so as to give motorists warning that there was a detour
and that the Red Jacket Bridge remained closed.

The lack of signs or notice of the detour created a hazardous
situation for drivers approaching the Red Jacket Bridge from the
north. Unfortunately, an already dangerous situation was made
worse by the improper placement and use of the concrete barriers
which were used primarily to block the entrance to the bridge, but
they also were used to channel the traffic through the detour with
the use of the painted orange arrows. Testimony adduced from numerous witnesses leads the Court to conclude that the lack of
proper signs and the improper use of and placement of the concrete
barriers created what was in essence a trap for unsuspecting
motorists, especially for those motorists traveling at night. There
was insufficient illumination on the bridge and the barriers. There
is also undisputed testimony that these barriers had arrows painted
on them with an orange fluorescent-type paint. The lack of warning
signs, along with the lack of adequate illumination, apparently
made it very difficult for drivers to see that there was a detour
and that they were approaching a concrete barrier.

The Court is of the opinion that it was foreseeable that a
driver approaching the Red Jacket Bridge and observing the barriers
inadvertently could drive through the barriers and have a
collision. The fact that the barriers were not secured together or
anchored in some way so that no separation could occur if the
barriers were moved by traffic allowed the barrier with an arrow on
it to move in such a way as to create a trap for an unsuspecting
driver. The evidence adduced at the hearing, especially the
photographs of the damage to the vehicle, indicate that Mrs.
Collins did in fact have enough room to maneuver her truck between
the two open barriers to cross what she thought was the Red Jacket
Bridge and then strike a barrier knocked over on its side. The
photographs of the vehicle Mrs. Collins was driving clearly show
that she did not simply crash into two upright barriers. The
photographs of the damage to her vehicle are consistent with her
version of the accident as the damage was limited to the lower
left portion of the vehicle. Officer Wigal also testified that
whatever impacted the truck hit it at a height of approximately
eighteen inches, which is much more consistent with striking a
barrier turned over on its side than one standing upright. This
evidence leads the Court to the conclusion that there was enough
room for Mrs. Collins to maneuver her vehicle through the two
barriers where it struck the barrier which was already knocked over
on its side. Thus, there was a combination of negligent acts and
omissions on the part of the respondent that constitutes the
proximate cause of this accident.

However, the Court is also of the opinion that Mrs. Collins
was twenty percent at fault in this incident. The evidence adduced
at this hearing also established that Mrs. Collins was familiar
with State Route 65. She was aware that the Red Jacket Bridge was
under construction as of May 26, 1998, and that it was closed to
both northbound and southbound traffic. She also passed the
construction site as she traveled through the detour three
different times to and from work prior to the night of the
accident. On the date of the accident May 31, 1998, Mrs. Collins
passed the Red Jacket Bridge while driving north to her place of
employment. Given the fact that she knew that the bridge had been
totally blocked to traffic in both directions as she came home from
work on May 26, May 27, and May 28, she should have been more
cautious as she returned home from work on May 31, 1998. Although the respondent did not have adequate signs in place, and was
negligent in the use and placement of the concrete barriers, she
should have traveled at a slower rate of speed than that at which
she was traveling. Therefore, the issue of the adequacy of signs
at the scene is negated by the fact that Mrs. Collins had driven
through the area several times prior to the night of her accident.
However, the Court is of the opinion that if she had been traveling
at a slower rate of speed, she may have been able to avoid the
dangerous trap that awaited her, or at least reduced her damages.
The Court concludes that claimant Nancy C. Collins be assessed
twenty percent for her comparative negligence.

DAMAGES

Claimant Nancy Collins suffered serious physical injuries as
a result of this incident. She testified to the Court that she is
in constant pain. She has a great deal of pain including
headaches, neck pain, mid-back pain, low-back pain, and pain in her
right hip. Mrs. Collins also had a noticeable limp due to the
injury to her right hip. Dr. Lura Beth Williams, D.C., treated
Mrs. Collins for approximately five months. She ran numerous
diagnostic tests including physical exams, x-rays, ultrasounds, and
a CPT current perception threshold, which is a nerve study. Dr.
Williams diagnosed Mrs. Collins as having sub-acute cervical strain
and localized edema and scarring in this same region. This has
resulted in diminished movement and function of the muscles in the
cervical region. Dr. Williams also diagnosed her with lumbar
strain, edema, and scarring. Also, there are some arthritic
changes to the facets in the lumbar region.

Mrs. Collins also suffers from a limp on her right side due to
a serious sprain, strain, and muscle compensation to her hip. Dr.
Williams testified that Mrs. Collins is "antalgic" meaning that
she is unable to stand erect. She also lacks range of motion in
her hip demonstrating significant trauma to this area. Mrs.
Collins also suffers from a leg length discrepancy due to the
injuries to her leg and hip muscles.

Dr. Williams treated Mrs. Collins by applying adjustments to
her injured areas along with other conservative treatment. When
Dr. Williams was not able to treat Mrs. Collins to a state at or
near her pre-accident physical condition, she recommended cessation
of the treatment.

Claimant also was treated by Dr. Panos Ignatiadis, a
neurosurgeon, who performed an MRI on Mrs. Collins. He did not
find any need at that time for surgical intervention. Mrs. Collins
had a second MRI in January 2001 at the request of her family
physician, Dr. Camomot. This MRI was performed on her cervical
spine, her right hip, and her proximal femur. The findings were as
follows: degenerative disc disease from levels C3 through C7;
obliteration of the spinal foramina at C4-C5; and at C5-C6.
Finally, Mrs. Collins also suffers from osteoarthritic changes in
her hips.

These injuries have caused Mrs. Collins a great deal of pain and suffering, loss of enjoyment of life, and depression. She is
unable to perform those duties around the home that she formerly
was able to do. She requires the help of her husband to get
through her daily life. It is difficult for her to bathe, cook,
and clean house due to the pain. She is now on anti-depression
medication as a result of her injuries. She is no longer able to
work due to her injuries and she has been declared disabled. She
receives disability from the Social Security Administration.

Both Mr. and Mrs. Collins testified that this incident has had
a very negative effect on their marriage. Mr. Collins testified
that his wife is not as happy or as active as she was before this
incident. This incident has also had a dramatic effect on the
claimants' personal and intimate relations as well. The Court is
of the opinion that claimant Alfred E. Collins has suffered a loss
of consortium as a result of the injuries to his wife and the loss
of his truck. Therefore, the Court finds that the claimant Alfred
E. Collins is entitled to an award of $7,800.00. The Court also
finds that claimant Nancy C. Collins is entitled to an award of
$96,000.00 which amount is reduced by the assessment of comparative
negligence for a total award of $76,800.00.

In accordance with the finding of facts and conclusions of law
as stated herein above, the Court makes an award in the amount of
$76,800.00 to claimant Nancy C. Collins and an award in the amount
of $7,800.00 to claimant Alfred E. Collins.
Award of $76,800.00 to Nancy C. Collins.

Award of $7,800.00 to Alfred E. Collins.
_________________