OPINION ISSUED JANUARY 28, 2000
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorneyat Law, for respondent.
Claimant brought this action for the value of her vehicle when
her vehicle went into a dug out area created by respondent which
was located off of the traveled portion of W.Va. Route 55 in
Craigsville. W.Va. Route 55 is a road maintained by respondent in
Nicholas County. The Court is of the opinion to make an award in
this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on September
18, 1998, at approximately 9:00 p.m. On the clear night in
question, claimant and her husband were proceeding along W.Va.
Route 55, a high priority road, in her 1986 Mercury Lynx with the
aid of the vehicle's lights. Claimant decided that she wanted to
return to her residence so she attempted to turn the vehicle
around. Claimant drove her vehicle into the Bubb's Produce parking
lot. As she maneuvered the turn, the right side of the vehicle
went into a large, unmarked hole that was between the parking lot
and the road. Claimant had not observed this dug out area
previously. The hole, which was by a utility pole four feet from
the white line marking the edge of the pavement, was approximately
four feet by four feet in size. The hole was also at least four
feet deep and it was partially covered by two sheet metal plates.
The sheet metal plates were four feet by eight feet and had a
thickness of ½ inch. Each sheet metal plate weighed about one
thousand pounds. Claimant's vehicle sustained extensive damage.
After the incident, Nicholas County Sheriff Wayne Plummer happened
upon the scene. Deputy Sheriff Plummer, after determining that the
hole was a hazard, marked off the area with cones from the
Craigsville Fire Department and evidence tape he had in his
vehicle. Claimant's vehicle was then pushed to the local Napa Auto
Parts store. Later, the vehicle was determined to be "totaled."
Since claimant's vehicle was insured only under a liability policy,
there was no insurance coverage for this incident. The value of the
vehicle was estimated in the amount of $500.00.
The position of respondent was that it was not negligent in
its maintenance of W.Va. Route 55 in Craigsville. Respondent
acknowledged that it was responsible for creating the large dug out
area in order to remedy a drainage problem, but asserts that it had
taken the proper precautions to cover the hole it had created. In
addition, respondent acknowledged that the area in question was known to be used by drivers as a turn-around area and that large
trucks came in and out of the parking lot. According to
respondent, barrels and cones were placed at the scene but had been
stolen on several occasions. Several days before claimant's
incident, respondent did not have material to fill in the hole, so
sheet metal plates were placed over the hole. The day following
the incident, the area was repaired.
The evidence adduced at the November 4, 1999, hearing
established that respondent was negligent in its maintenance of
W.Va. Route 55 at the site in question. Respondent was aware of
the public use of the area and it should have exercised more
reasonable care in the inspection of the hole until permanent
repairs could be made. The Court is of the opinion that the
actions of respondent were negligence for which claimant may
recover the sustained loss. 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 in this claim in the amount of $500.00, for the
estimated value of the vehicle.
Award of $500.00.