OPINION ISSUED DECEMBER 6, 1999
DAVID ALLEN TOTO
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 negligently maintained berm while he was traveling
westbound on Route 23/7, Clifton Heights Boulevard, approximately
one-hundred-seventy-five feet east from Route 23/5, Cedar Rocks.
Route 23/7 is a road maintained by respondent in Ohio 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 August 11,
1998, at approximately 7:45p.m. On the dry evening in question,
claimant's wife, Phyllis Renae Toto, was proceeding westbound along
Route 23/7, just below Jones Street, to her parents' residence,
which is forty minutes away from her Adena, Ohio, residence. At
this location on Route 23/7, the right side of the road has a
downward slope and the left side of the road has a bank with a
hillside. Claimant's wife travels Route 23/7 about once per week.
In the past, claimant's wife had not noticed the deterioration in
the berm of the road. As she drove on the narrow, twelve to
fourteen foot, black top, second priority local service road, she
was confronted by three oncoming vehicles. When the vehicles
passed her 1998 Chevy Malibu, the vehicle's passenger side front
tire struck the edge of the pavement, which was experiencing
deterioration in the berm about ten to twelve inches deep.
The incident burst the vehicle's tire. Since claimant's wife
was not able to repair the tire, the vehicle remained on the side
of the road until her brother, a mechanic, could arrive to render
assistance. The resulting loss to claimant was in the amount of
$105.82. Claimant's vehicle was insured under a motor vehicle
insurance policy that contained a deductible feature of $250.00.
The position of the respondent was that it did not have actual
or constructive notice of the deterioration of the berm along Route
23/7. Respondent previously had no record of any complaint about
deterioration in the berm of Route 23/7.
This Court has been very consistent in its opinions in 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 the 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 this present claim, the Court is of the opinion that the
berm on Route 23/7, Clifton Heights Boulevard, at the location of
the incident, was not maintained properly by respondent. Due to
the narrow size of the road and berm deterioration, claimant's wife
did not proceed onto the berm by her own choice. In effect, she
was forced off the road at the moment she was confronted by
In view of the foregoing, the Court is of the opinion to and
does make award in the amount of $105.82.
Award of $105.82.