OPINION ISSUED DECEMBER 6, 1999
PUTNAM TRUCKLOAD DIRECT
VS.
DIVISION OF HIGHWAYS
(CC-98-365)
Alan G. McGonigal, Attorney at Law, for claimant.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for
respondent.
PER CURIAM:
Claimant, an Ohio corporation, brought this action for tractor
trailer damage which occurred as a result of claimant's tractor
trailer striking the side of a tunnel on Secondary Route 60/14.
8 Claimant is division of P & D Transportation, Inc.
Secondary Route 60/14 is a road maintained by respondent in
Greenbrier County. The Court is of the opinion to make a reduced
award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on September
16, 1998, at approximately 7:30 a.m. On the morning in question,
claimant's employee, Donald Lee Stalling, was driving a tractor
trailer through Charleston en route to Roanoke, Virginia. The
tractor being driven by Mr. Stalling was hauling a trailer of cargo
eastbound along Interstate 64 at White Sulphur Springs.9 The
tractor was a 1985 model, while the trailer was a 1987 model. The
dimensions of the trailer were forty-eight feet long, one hundred
and two inches wide (the maximum federal standard) and thirteen
feet four inches or thirteen feet six inches high. The height of
the trailer depends on the weight of the trailer. At the time of
the incident, the trailer was loaded with 35,000 pounds of cargo.
Suddenly, an airline leak developed on the trailer, which required
immediate attention. Mr. Stalling, having never driven through this
area before, needed assistance finding an immediate truck-stop.
Using his CB radio, Mr. Stalling contacted an unidentified person
to ask directions to the nearest truck-stop.10 The unknown person
was incorrect in the instruction to Mr. Stalling. Since Mr.
Stalling was proceeding eastbound on Interstate 64, he should have
taken a left at the first White Sulphur Springs exit and then
looked for Dixon's, Inc., on his right. The unidentified person
instructed Mr. Stalling to take the first White Sulphur Springs
exit onto Secondary Route 60/14 and take a right, which would lead
to Dixon's, Inc., a truck-stop. Mr. Stalling complied with the
instruction. As Mr. Stalling proceeded southward on Secondary
Route 60/14 in the tractor trailer, he observed a UPS office on his
left. Across from the UPS office, there was a open field. There
were two signs, "one lane road" and "tunnel", along the road, but
no signs warning of a low tunnel or creek in the tunnel.
Eventually, Mr. Stalling came upon a tunnel owned by the CSX railroad, which was five hundred feet from the UPS office.11 The
drainage and arch belong to CSX, while the roadway itself belongs
to respondent. At the tunnel, Secondary Route 60/14 is
bottlenecked into one lane of traffic with a width of fourteen
feet, eleven inches. The middle of the tunnel has a height of
fifteen feet, six inches and the sides of the tunnel are fourteen
feet, two inches. These heights are consistent through the tunnel.
At the point in the tunnel where the height is thirteen feet, six
inches, the width of the tunnel is ten feet, ten inches. Two
signs, "15-0" and "14-2", adorn the side of the tunnel in order to
indicate the height of the tunnel. The roadway through the tunnel
is straight, but curves after exiting the tunnel. Inside the
tunnel, a creek runs north on the tunnel's right side. On the
sides of the road, outside of the tunnel, there are two diagonal
striped signs, which indicate that caution is required at the
tunnel. According to respondent's traffic engineer, Charles Raymond
Lewis II, the diagonal signs are warning travelers about the creek
that flows through the tunnel, not the size of the tunnel.
Based upon the signs on the tunnel as well as personal
knowledge and experience, Mr. Stalling believed that the trailer
would clear the tunnel. At this time in the morning it was
becoming dawn and Mr. Stalling slowed the speed of the tractor
trailer to approximately ten to fifteen miles per hour. As the
tractor trailer entered the tunnel, Mr. Stalling noticed a creek
running on the right hand side of the tunnel so he was forced to
maneuver the tractor trailer to the left hand side. This situation
concerned Mr. Stalling and he feared going into the creek or
hitting the tunnel. After entering the tunnel, the driver's side
of the trailer began scrapping the top of the tunnel. When the
tractor trailer made it through the tunnel and arrived at the
Greenbrier State Forest side of the tunnel, it was no longer able
to carry the cargo and Mr. Stalling had to call for assistance.
As a safety precaution, tractor trailer drivers do not back up
once in a precarious situation, such as in the present case.
Sometime after the incident, Trooper T. L. Bragg, a member of
the West Virginia State Police, arrived at the scene, conducted an
investigation, and filed a report, but he did not issue Mr.
Stalling a citation. Employees from Dixon's, Inc., also arrived at
the scene with a flat-bed truck and transferred the cargo for Mr.
Stalling and gave him an escort over Kate's mountain to Dixon's,
Inc. Later in the morning, photographs of the area were taken by
Mr. Stalling. Afterwards, Mr. Stalling traveled back to Zanesville,
Ohio, without the cargo.
Claimant sustained loss in the amount of $5,178.40. This loss
reflects an estimate for repair of the trailer in the amount of
$4,394.90.The fair market value of the trailer in the previous
condition was approximately the sum of $5,700.00. After repairs,
the trailer's value decreased approximately to the sum of
$4,500.00. Currently, claimant still owns the trailer. The loss
also reflects the amount of $783.50 for services rendered to claimant by Dixon's, Inc., at the scene of the incident. Claimant
did not have collision damage insurance on his truck or its
contents.
The Court is of the opinion that respondent failed to
reasonably maintain the roadway portion of the tunnel on Secondary
Route 60/14. The combination of the height of the tunnel and the
creek which runs through the tunnel creates an unreasonable risk
for motorists. Travelers are forced to maneuver their vehicles to
the left side of the one lane road, which in turn increases the
immediacy that a motorist's vehicle will strike some point of the
tunnel's arch. At the time of the accident, there were no signs
warning travelers of the double hazard they are approaching.
Notwithstanding respondent's negligence, the Court is also of the
opinion that claimant's employee, Donald Lee Stalling, was
negligent in his operation of the tractor trailer. As Mr. Stalling
made his way to the tunnel, there were signs indicating that there
could be problems ahead for a tractor and trailer. Mr. Stalling
could have used the open field across from the UPS office to turn
around. Instead, Mr. Stalling risked the chance of the tractor
trailer not making the clearance. However, under the dire
circumstances, Mr. Stalling's actions were not totally
unreasonable.
In a comparative negligence jurisdiction, such as West
Virginia, the negligence of a claimant can reduce or bar recovery
of a claim. Based on the above, the Court finds that claimant was
20% negligent for the incident that occurred. Since claimant's
driver's negligence is not greater than or equal to the negligence
of respondent, claimant may recover 80% of the loss sustained.
In view of the foregoing, the Court makes an award to claimant
in the amount of 80% of the damages for a total award of $4,142.72.
Award of $4,142.72.
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