OPINION ISSUED DECEMBER 6, 1999
ERRY L. HUNDAGEN
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage which occurred
as a result of a rock fall while traveling northbound on U. S. 250,
also known as Route 2, north of Glendale in the "Narrows" area. U.
S. 250 is a road maintained by respondent in Marshall 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 16,
1998, at approximately 9:15p.m. On the cold night in question,
claimant was traveling northbound on U. S. 250 also known as Route
2, north of Glendale in an area locally referred to as the
"Narrows." U. S. 250 is a dimly lighted two lane road that is
marked as a "falling rock" area with a speed limit of fifty miles
per hour. Once a week, claimant travels U. S. 250 to attend a
landscaping class taught at John Marshall High School. Earlier in
the evening, claimant had been on U. S. 250 and the road was clear
of rocks or rock debris. Claimant proceeded along U. S. 250 with
the aid of the 1989 Chevrolet Beretta's headlights at a speed of
about fifty miles per hour. While there was no oncoming traffic on
the road, claimant knew that several of her classmates were
traveling behind her vehicle. As claimant came around a curve, she
saw rocks and debris about thirty feet away, coming towards her
vehicle. Claimant did not have enough time to avoid the rock fall
and her vehicle was struck by rocks as well as rock debris.
After the incident, claimant's vehicle began to make noises
and she decided to go to a local convenience store in order to
telephone her husband, an associate engineer technician for
respondent in District 6. At that moment, claimant's husband
happened to be passing by and stopped to see if assistance was
needed. Claimant's husband did the necessary repairs so that the
vehicle could be driven to their residence. Afterwards, claimant's
husband reported the incident to Wheeling Tunnel and was informed
that a grader had been dispatched because of another incident.
The damage sustained to claimant's vehicle was estimated
between $1,150.50 and $1,652.80. Since the vehicle was insured
only under a liability insurance policy, there was no insurance
coverage for this incident. Claimant's husband made further
repairs to the vehicle, but no receipts were kept on that work.
However, the vehicle was still in need of major repairs. In April of 1998, the vehicle was used as a trade-in on a new vehicle.
Claimant's husband asserted that a loss was taken for the trade-in
because of the incident. As a trade-in, claimant received
$1,500.00 for the damaged 1989 Chevrolet Beretta with 100,000
miles. The value of the vehicle before the incident was estimated
to be about $2,800.00 to $3,000.00.
Claimant alleges that the absence of positive barriers on U.
S. 250 in the "Narrows" stretch of highway constitutes negligence.
Respondent should have installed positive barriers on U. S. 250 in
the "Narrows" to protect the traveling public from the frequent
rock falls that occur there. If positive barriers would have been
installed, this incident would not have occurred.
The position of respondent was that it did not have notice of
the rocks and rock debris on U.S. 250. Respondent admitted that the
area in question was a well known "rock fall" area, but argued that
the area was not significantly hazardous to the traveling public.
The area has been clearly marked to protect the traveling public.
Two federal standard size signs, one of which is marked "Falling
Rock" and the other on the same pole is marked "Next 1 Mi," were
erected in the area in question to notify the traveling public of
potential problems. In addition, overhead lights were installed on
U. S. 250 in 1976. This area is regularly patrolled and on the
night in question, a grader was immediately dispatched to the area
to clear the rocks and rock debris. According to respondent's
daily records, the grader remained at the scene of the incident for
three hours. Before this time, respondent asserted that there was
no prior notice to respondent of any potential rock falls in the
The general rule of this Court has been that in claims of this
nature, a claimant must positively demonstrate that respondent had
notice or constructive notice of a dangerous condition posing a
threat of injury to property, such as falling rocks and rock
debris. Mitchell vs. Division of Highways, 21 Ct. Cl. 91 (1996);
Coburn vs. Division of Highways, 16 Ct. Cl. 68 (1986); Hammond vs.
Division of Highways, 11 Ct. Cl. 234 (1977). Besides respondent's
notice of the dangerous condition, the evidence must also establish
that respondent had a reasonable time to take suitable action to
protect motorists. Alkire vs. Division of Highways, 21 Ct. Cl. 179
(1997). Knowledge of other rock falls in the area near an incident
can be sufficient to give respondent notice of a hazard to the
traveling public. Cole vs. Division of Highways, 21 Ct. Cl. 15
In the instant claim, the Court is of the opinion that this
portion of U. S. 250 in the "Narrows" is a hazard to the traveling
public. Respondent has known since 1941 that this area is
notorious for potential rock falls. Dunn vs. Division of Highways,
19 Ct. Cl. 163 (1992). This portion of road is such a hazard to
the traveling public that warning signs and regular patrols are not
sufficient to protect the traveling public in this section of
highway. This Court in finding the State Road Commissioner liable in the claim Varner's Adm'n v. State Road Comm'n, stated:
"[W]hen the State Road Commissioner knows or should know that an
unusually dangerous condition exits, there is a duty to inspect and
to correct the condition within the limits of the funds
appropriated by the Legislature for maintenance purposes."5
Pursuant to West Virginia Code Sections 17-2A-1 and 5F-2-1, the
Division of Highways, formerly the office of State Road
Commissioner, was transferred to, and administratively attached to,
the Department of Transportation by the Executive Reorganization
Act of 1989.
Id., 8 Ct. Cl. 119, 122 (1970); See also Cole, Supra; Smith vs.
Division of Highways, 11 Ct. Cl. 221 (1997).
Just last year, this Court heard two separate claims regarding
the Narrows on U. S. 250 in Marshall County. See Peck & Peck vs.
Division of Highways (CC-97-164 & CC-97-375, unpublished OPINION
ISSUED May 29, 1998); Dimmick & Dimmick vs. Division of Highways
(CC-96-561, unpublished OPINION ISSUED May 29, 1999). Again this
year, this Court heard this claim and another, Williams vs.
Division of Highways (CC-99-114, unpublished opinion), regarding
the same area in question. In many of the claims heard in the past
by the Court, negligence on the part of the respondent was noted by
the Court and awards were made. The notoriety of this particular
area of U. S. 250 cannot be ignored by this Court. In Dimmick, one
of respondent's employees made the analogy that driving on U. S.
250 in the Narrows in Marshall County was similar to playing
"Russian Roulette." See Id. However, even after all of the
previous incidents, no remedial measures have been taken by
respondent. Frankly, the Court is at a loss as to why respondent
refuses to eradicate a known dangerous condition. Routine patrols
do not address the problem. The respondent is on notice of a
hazardous condition which poses a potential danger to the traveling
public. Therefore, the Court concludes that the conduct of
respondent constitutes negligence.
The Court is of the opinion that the evidence adduced at the
September 16, 1999, hearing demonstrated that a hazardous condition
existed at the time of claimant's incident. There was no showing
that respondent did anything beyond the routine patrolling of U. S.
250. Consequently, there is sufficient evidence of negligence upon
which to base an award.
In view of the foregoing, the Court is of the opinion to and
does make an award to the claimant in the amount of $1,550.00, the
blue book value of claimant's vehicle.
Award of $1,550.00.