OPINION ISSUED JANUARY 19, 2001
MARY ELIZABETH LAWRENCE, INDIVIDUALLY & AS EXECUTRIX FOR
THE ESTATE OF VIOLA F. RANSBERGER; STEVEN RANDALL BROCK; AND
DEBORAH ANNETTE LINEBERRY
DIVISION OF HIGHWAYS
Shannon M. Bland, Attorney at Law, for claimants.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for
Claimants brought this action for damages sustained to their
real and personal property due to the alleged negligent maintenance
of the drainage system along W.Va. Route 41, locally known as
Webster Road, in Summersville.At the hearing, the Court
amended the style of the claim to reflect the fact that Steven
Randall Brock and Deborah Annette Lineberry are proper party
claimants in this claim. W.Va. Route 41, at this location, is a
road maintained by respondent in Nicholas County. The Court is of
the opinion to deny this claim for the reasons more fully set forth
In 1964, claimants' grandmother, Viola Ransberger, purchased
two real property lots located on the east side of W.Va. Route 41.
A house, with an estimated value of $70,000.00, is situated on one
of the lots. The house was used as a twelve room boarding house
while the other lot, which is on the northeast side of the house,
is graveled and used for parking. This portion of W.Va. Route 41,
which traverses in a north-south direction, has two twelve-foot
lanes with a four foot berm on each side of the road. At the time
Ms. Ransberger purchased the property in question, claimants assert
that there were no drainage problems. During the late 1980's and
early 1990's, claimants assert that respondent conducted two paving
projects on W.Va. Route 41. During these two separate projects,
the road was resurfaced and later the sidewalk was rebuilt. During
the summer of 1989, employees of the City of Summersville removed
a drain from in front of the house and failed to replace it. After
the paving projects and the removal of the drain, the property
began to experience drainage problems and complaints were made to
the City of Summersville; however, no one notified respondent about
these problems. City employees investigated the complaints, and
thereafter rebuilt the steps and installed grates on the top of two
of the steps on the northeast side of the house to alleviate the
water drainage problem. The City's insurance carrier made a
settlement offer in the amount of $10,000.00, but claimants refused
this offer. Claimants then noticed that the inside basement wall
was beginning to deteriorate and the foundation of the house had
begun to shift. The house has been vacant since June of 1996. It was condemned by the City of Summersville in October 1999. In
addition, claimants sustained an estimated loss in the amount of
$15,500.00 for personal property that was damaged while being
stored in the basement of the house. Unfortunately, claimants'
homeowners insurance policy did not provide coverage for the damage
to the house and the policy was cancelled by the insurance carrier
on July 15, 1997.
According to claimants' professional surveyor Richard Craig
Dunlap, the location of the highest point for the storm drain
system is the center of the road where the road surface is crowned
with a two percent grade. The water in the southbound lane of
W.Va. Route 41 flows southerly against the east edge of the curb
for the sidewalk, which has a four percent grade. In May 1997, Mr.
Dunlap measured this portion of the eastern edge of the sidewalk at
the driveway entrance and found it to be only a half-inch higher
than the road surface or almost level with the road. Moreover, Mr.
Dunlap observed that the northeast side of the residence was three
inches out of plumb.
Claimants' expert in civil engineering, Joseph P. Young,
examined Mr. Dunlap's data as well as conducting an onsite visit.
He was of the opinion that water flowing onto claimants' property
is a contributing factor to the problems experienced by claimants.
Mr. Young observed that the design and construction of the road as
well as sediment that builds up at the northeast corner of the
residence, allow water to flow onto claimants' property, which
saturates the soil and causes the foundation to shift. Since Mr.
Young was unaware of the sequence of construction of the curb and
the road surface, he was unable to determine which of these factors
is the proximate cause of the damage to the house.
The position of respondent is that it was not negligent in the
maintenance of the drainage system on W.Va. Route 41. Respondent
asserts that it conducted only one paving project one mile north of
claimants' property in1993 and it had no complaints regarding
drainage problems on claimants' property until the spring of 1995.
The date of the paving project was established by respondent
through affidavits and daily records admitted on May 5, 2000, as
post-hearing exhibits in response to rebuttal evidence presented by
claimants at the hearing. On September 26, 2000, counsel for
claimants took the depositions of several individuals regarding
these affidavits and daily records. During this project,
respondent's employees ground up four inches of the pavement on
Route 41. Then, the road was repaved with three inches of base and
one inch of wearing course material for smoothness. When the
project was completed according to specifications, an on-site field
inspector made sure that there was no change in elevation and that
there was a curb of four inches. In addition, respondent's
employees installed an asphalt speed bump in the driveway portion
of the sidewalk in question, in order to prevent water from
draining onto claimants' property. The asphalt speed bump lasted
only for a few months before it was eroded by water flow. Moreover, respondent asserted that it is not responsible for the
maintenance of sidewalks on W.Va. Route 41. According to the
deposition testimony of Supervisor of the Claims Section of the
Legal Division Ben L. Savilla, sometime after the paving project in
question, there was one patch in the road surface about eighty-two
feet north of claimants' property.
Respondent's expert in geotechnical engineering Dr. George Alan
Hall conducted an on-site inspection of claimants' property on
September 22, 1999. Dr. Hall opined that claimants were
experiencing drainage problems because the City of Summersville had
negligently designed and constructed the sidewalk at a higher grade
than the road surface of W.Va. Route 41 as well as the fact that
the inlet drain was removed by City employees, and should have been
replaced. According to Dr. Hall, the slope away from the sidewalk
is much steeper than the slope of the road, so water naturally
flows in that direction. The water flows along the side of the
curb at a relatively high velocity. Once the water reaches the
driveway, it begins to spread out and the expansion creates an
expansion energy loss. When the water reaches the curb at the
lower end of the driveway, a ramp is created onto the sidewalk and
gallons of water flow onto claimants' property. The faster water
flow also carries sediment to the end of the driveway. This
sediment build-up then turns water onto claimants' property.
Further, the grate constructed by City of Summersville employees
directed water into the soil instead of onto the steps.
Additionally, Assistant Supervisor Edward Roger Brown and Dr. Hall
observed the that the downspouts and gutters are in a state of
disrepair, allowing water to flow directly on the ground adjacent
to the house. As a result, Dr. Hall indicated that the saturated
soil has created a small landslide at the corner of the parking
lot, pushing the steps into the house, causing the basement walls
to buckle in the middle and actually causing the interior walls to
buckle throughout the northeast side of the house. The house is
unstable and uninhabitable.
This Court has held that respondent has a duty to provide
adequate drainage of surface water, and drainage devices must be
maintained in a reasonable state of repair. Haught vs. Dept. of
Highways, 13 Ct. Cl. 237 (1980). In claims of this nature, 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).
In the instant claim, claimants have failed to established
that respondent maintained the drainage structures on W.Va. Route
41, in Nicholas County, in a negligent manner. The Court is of the
opinion that respondent, once having notice of the situation on
W.Va. Route 41, took immediate and reasonable action to prevent
excess water from flowing onto their property. The terrain in this
area of W.Va. Route 41 forms a natural drainage area on claimants'
property. In addition, the Court concludes from all the testimony
and evidence in this claim that there are several factors, other than the actions taken by respondent, which have brought about the
drainage problems causing the damages to claimants' property.
Consequently, there is insufficient evidence of negligence on the
part of respondent upon which to base an award.
In accordance with the findings of fact and conclusions of law
as stated herein above, the Court is of the opinion to and does
deny this claim.