OPINION ISSUED AUGUST 24, 2000
MICKEY D. MAHONE, SR.
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for
Claimant brought this action for damages sustained to his
personal property due to the alleged negligent installation of the
Brent Belcher Bridge on County Route 3/23, locally known as Stowers
Road, which caused the Middle Fork of the Mud River to flood in
Griffithsville.At a pre-trial conference on January 20, 2000,
Mr. Mahone reduced the amount of his claim from $67,000.00 to
$7,000.00, for damage only to his personal property after he sold
the residence in question as the Administrator of the Estate of
Lola F. Mahone. At this location, County Route 3/23 is maintained
by respondent in Lincoln County. The Court is of the opinion to
make an award in this claim for the reasons more fully set forth
In 1995, respondent constructed the Brent Belcher Bridge and
embankment on County Route 3/23 in order to replace a bridge about
fifteen-hundred feet upstream from the location in question. A
separate five foot wide foot-bridge, which was forty to fifty feet
long, and just upstream from the location of the Brent Belcher
Bridge, was removed in order to construct the Brent Belcher Bridge.
At this location, County Route 3/23 traverses in an east-west
direction and crosses the Middle Fork of the Mud River which flows
in a southerly direction. Respondent chose this valley location
because it had a better roadway approach than the site fifteen
hundred feet upstream. The beams of the seventy foot precast
concrete box bridge were implanted thirty-three inches into the
ground. The road surface portion of the bridge has an asphalt
overlay and guardrail installed along each side of the bridge.
Wing walls were not present for the foot-bridge, but were
constructed for the Brent Belcher Bridge. The bottom of the bridge
is approximately twelve feet above the river level, which is the
same height as the previous foot-bridge.
Before construction, respondent completed a hydraulic analysis
and studied the river as well as rainfall in the area. According
to respondent's bridge design engineer Gregory Lee Surber, the
bridge was designed and constructed with a low elevation in the
approach road, so if water flowed to the bridge, it would flow
through the low place in the road and subsequent damage from water
flow would be reduced. Mr. Surber was not prepared to testify in
detail about specifications and hydraulic studies.
At the hearing, Mr. Mahone testified that the embankment of
W.Va. Route 3, proceeding north, is two and one-half feet higher in
elevation than his former property. In addition, Mr. Mahone
asserts that the guardrail on the bridge collects debris and adds
an extra two and one-half feet to this elevation. Mr. Mahone
asserts that the bridge construction, excavation and fill created
a dam and "flood zone" in the valley area, which is the proximate
cause for the flood damage to his personal property. Mr. Mahone
stated that since March of 1997, following construction of the
Brent Belcher Bridge, the area in question has flooded four times.
According to Stanley Lee Rose, a resident of the community for
about twenty years, during periods of heavy rain the water from
Middle Fork flows onto the new bridge carrying debris. The debris
blocks further water which then backs up and flows onto the
properties upstream which includes that of the claimant and Mr.
Rose. The bridge is sufficient to handle water except when water
flows to the outer banks of the river. Mr. Rose asserted that
before construction of the bridge, about an inch of water would
accumulate in his basement, now about four feet of water
accumulates in his basement. Mr. Rose further testified that he
has had to renovate his basement.
On March 2, 1997, the area in question began to flood in
isolated pockets after extensive rain during the previous day. By
March 3, 1997, the flood waters had receded. Emergency Services
Director Allen Holder, who is the county's link to the State and
Federal governments in times of disaster, testified that he
observed extensive damage on March 4, 1997, and requested National
Guard troops. About forty National Guard troops were sent to
various locations in Lincoln County to assist in clean-up efforts.
Extensive debris remained in the area, creating extensive county
wide disposal cost, including tipping fees of about $9,000.00. Mr.
Holder further testified that the Federal Emergency Management
Agency (hereinafter referred to as "F.E.M.A.") provided monetary
assistance to residents who were damaged by the flood. Mr. Holder
was unable to determine the cause of the flooding.
The flood damaged Mr. Mahone's personal property which he
stored in the basement of his parents' residence after he moved to
the residence in 1991 in order to care for his parents. Mr. Mahone
did not have flood insurance and he was not eligible for financial
assistance from F.E.M.A. According to Mr. Mahone, his personal
property items such as a television, VCR, Honda Moped, Onan
generator, table with chairs, couch, lamps, pots, pans, table and
end table could not be salvaged from the residence's basement and
were discarded. Mr. Mahone calculated the sustained loss to be in
the amount of $11,000.00, but he depreciated value of the items to
the sum of $7,000.00 which amount represents his damages.
The position of respondent is that it was not responsible for
the flooding that occurred to claimant's property. Respondent
asserted that the Brent Belcher Bridge was constructed properly and
that the damage experienced by claimant was the result of extensive flooding throughout Lincoln County. According to Highway
Administrator Larry Paul Pauley, not since 1962 had the area
experienced such flooding. Mr. Pauley further testified that as a
result of the flood, the county sustained four to five million
dollars in road damage.
On prior occasions, this Court has held that respondent may be
liable for the condition posed by a bridge. Burgess vs. Dept. of
Highways, 18 Ct. Cl. 2 (1989). Respondent has an obligation to
construct bridges in such a manner as not to create subsequent
flood problems for nearby property owners. Daniels vs. Dept. of
Highways, 16 Ct. Cl. 43 (1986). In claims regarding water damage,
the Court will examine whether respondent negligently failed to
protect a claimant's property from foreseeable damage. Rogers vs.
Div. of Highways, 21 Ct. Cl. 97 (1996).
It appears to the Court that the construction of the bridge
approaches and wing walls, the increased size of the Brent Belcher
Bridge over that of the previous foot-bridge, and the propensity of
the bridge guard rails to collect debris, collaborated to create a
damming effect at the site, resulting in the damage complained of,
constituting sufficient negligence on the part of respondent on
which to base an award.
Notwithstanding the negligence of respondent, the Court is of
the opinion that claimant was also culpable in the loss sustained.
Claimant's personal property was discarded indiscriminately. No
effort was made to salvage those items of personalty which could
have been saved, e.g., moped, generator, pots and pans.
Accordingly, the Court determines that a fair and reasonable amount
for claimant's loss to be the amount of $3,900.00.
In accordance with the findings of fact and conclusions of law
stated herein above, the Court is of the opinion to and does make
an award to claimant in the amount of $3,900.00.
Award of $3,900.00.