OPINION ISSUED JUNE 8, 2000
MARY ALICE PAYNE
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought this action for personal injuries and
property damage sustained when her vehicle was struck by a mudslide
when she traveling eastbound on Route 83 in Yukon. Route 83 is a
road maintained by respondent in McDowell County. The Court is of
the opinion to deny this claim for the reasons more fully set forth
The incident giving rise to this claim occurred on May 13,
1998. On the day in question, claimant was making a return trip
from the grocery store in her 1987 vehicle while traveling
eastbound on Route 83 in Yukon. Route 83 is two-lane road, with a
road surface width of sixteen to eighteen feet and with guardrail
protecting travelers from the forty-five to fifty foot cliffs on
one side of the road. Earlier in the day, claimant had traveled
along the road, and she noticed people working on the road. As
claimant made her return trip from the store, she was driving
uphill and around a curve in the road when suddenly her vehicle was
caught in a mudslide. The impact of the mudslide pushed her
vehicle against the opposite side of the road. Claimant was
trapped inside the vehicle. Another vehicle pulled claimant's
vehicle out of the slide, and claimant's cousin contacted the
McDowell Ambulance Authority. Claimant sustained personal
injuries, but refused medical assistance and remained on the scene
for about one-half hour. Eventually claimant's husband drove her
to Bluefield Regional Hospital for treatment.Claimant's
medical bills were paid by Medicaid and a $1,000.00 payment by her
motor vehicle insurance carrier. According to claimant, after the
incident, the mudslide "just went away." During claimant's
frequent trips on this road in the past, she could not recall
observing any mudslide incidents in this particular area.
Photographic evidence of the vehicle and of claimant's personal
injuries were taken the following day. Once the vehicle was
brought back to claimant's residence, it was considered "totaled"
and sold for salvage.
The position of respondent was that it did not have notice of
the mudslide on Route 83 in Yukon. Respondent acknowledged that
road work had been done approximately one to one-and-a-half miles
from the scene of claimant's incident. According to respondent,
there are no records of a mudslide having occurred occurring in
this particular area on the day in question.
The evidence adduced at the October 28, 1999, hearing failed
to establish that respondent had notice that a mudslide was
imminent on Route 83 in Yukon. While the Court is of the opinion
that claimant was involved in an incident caused by a mudslide,
that fact alone is insufficient to establish negligence on behalf
of respondent. Consequently, there is insufficient evidence of
negligence upon which to base an award.
In view of the foregoing, the Court is of the opinion to and
does deny this claim.