OPINION ISSUED DECEMBER 6, 1999
FRED L. DONATO
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage which occurred
s a result of a negligently maintained berm while traveling
northbound on Route 35, McGraws Run Road, in Valley Grove, one-half
mile north of Atkinson's Crossing Road. Route 35 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
The incident giving rise to this claim occurred on September
14, 1998, at approximately 9:30 to 10:00 a.m. On the sunny morning
in question, claimant was proceeding southbound on Route 35,
McGraws Run Road, en route to a construction site in his 1983 Ford
800 truck. At this location, Route 35 narrows from eighteen feet
to sixteen feet and two inches. However, the southbound lane is
only six and one-half feet wide. Earlier in the morning, claimant
had traveled to Wheeling by a different road, but was proceeding
back to the construction site on Route 35 because it was the
shorter distance. Claimant had not been on the road since repairs
had been made to the road. As claimant drove around a curve in the
road, he was met by an oncoming truck. Claimant was forced to
drive to the right when his vehicle dropped off of the edge of the
pavement because of the width of the road. Claimant's vehicle then
slid off the road, went into a ditch, and hit the guardrail on the
side of the road. After the incident, claimant used a cell-phone
in his vehicle to telephone for a tow truck and the towing service
in turn notified the Ohio County Sheriff's Department. A member of
the Ohio County Sheriff's Department, Cpl. Stephen Bowers, was the
first to arrive on the scene and conducted an investigation. In
addition, claimant had a camera in his vehicle and took photographs
of the scene.
After claimant's truck was removed from the ditch, claimant
drove his truck to his residence. The vehicle sustained extensive
damage to its front end. The vehicle was not repaired; the
estimated cost of repair was $3,807.22. Also, claimant sustained a
losses in the amount of $125.00 for tow truck service and $15.00 to
receive a copy of the Ohio County Police Department report that was
filed. The total loss sustained by claimant was in the amount of
$3,947.22. Claimant did not have collision damage insurance on his
This Court has been consistent in opinions involving 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 claim, the Court is of the opinion that the berm on
Route 35, McGraws Run Road, at the location of claimant's incident,
was not maintained properly by respondent and created a hazard to
the traveling public. Both the photographic evidence presented by
claimant and the Ohio County Sheriff's Department Police accident
report establish that the road was not wide enough for two vehicles
to pass each other without using the berm. If claimant had not
proceeded to the berm of the road, any subsequent accident would
have been his fault. Thus, claimant did not enter the berm of the
road by his own choice. Claimant was forced off the road at the
moment he was confronted by the oncoming truck. The negligent
maintenance of the berm on Route 35 was the proximate cause of this
incident for which claimant may recover for the damage sustained to
In view of the foregoing, the Court is of the opinion to and
does make an award to claimant in the amount of $3,947.22.
Award of $3,947.22.