OPINION ISSUED SEPTEMBER 8, 1999
JOHN ALLEN BAILEY
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for the respondent.
Claimant brought this action for vehicle damage from a wreck
which occurred on Route 52/3 (Johnstown Road), Harveytown, as a
result of negligent maintenance of a storm drain and ditch from
Interstate 64. Route 52/3 (Johnstown Road), Harveytown, is a road
maintained by respondent in Cabell County. The Court is of the
opinion to make an award for the reasons more fully stated below.
The incident giving rise to this claim occurred on February
25, 1998, at about 7:30 a.m. On the morning in question, claimant
was traveling to work. The temperature was cold. Claimant was
traveling at about twenty-five miles per hour. Claimant frequently
traveled Route 52/3 (Johnstown Road) about five times per week for
the past two to three years. But, claimant had not been on that
road for a few days preceding the accident.
Route 52/3 (Johnstown Road) is a two lane road about sixteen
to eighteen feet wide. At the location in question, the road is
curved and slants downhill. About one-tenth of a mile away from
the accident site, there is a storm drain from Interstate 64.
According to claimant, there has been a drainage problem, from the
storm drain of Interstate 64, and drivers must drive on the other
side of the road at this particular location in order to avoid ice
and snow in the road. However, on this particular day, claimant
was trying to stay out of the ice and snow on his side of the road,
but oncoming traffic forced him onto his side of the road.
Subsequently, claimant's vehicle encountered sand and gravel that
was on top of ice, which forced him to lose control of his vehicle
and collide with a private landowner's fence and wall.
The resulting damage to claimant's 1979 Plymouth Volare Duster
was estimated at $1,191.26. Claimant's vehicle sustained damage to
the front and inner fender, a headlight rim, the corner of the
grill, the bumper as well as a bent frame. No repair work has been
done to the vehicle as of the April 14, 1999 hearing, but claimant
did introduce into evidence an estimate for repair of $1,180.84.
Because cost of repair would exceed the value of claimant's
vehicle, the vehicle was deemed "totaled." Eventually, the vehicle
was sold for salvage and the claimant received the sum of $100.00.
Claimant did not have insurance coverage that would cover this
accident. In addition, Claimant personally fixed the private
landowner's fence for a cost of $10.42.
The position of respondent was that it was never in receipt of actual or constructive notice of the condition of Route 52/3
(Johnstown Road) an the site of claimant's accident. There had
been no calls or letters describing any drainage problems at the
site of claimant's accident. Respondent's position was that any
drainage problem was from private landowners' yards and driveways
that encroach onto the State's right-of-way and there is not enough
distance to put in a culvert. Consequently, the State's options
are limited. However, photographic evidence introduced at the
April 14, 1999, hearing demonstrated that there was debris in the
storm drain ditch which forced water onto the road. Likewise, the
photographic evidence also demonstrated that there was a crack in
the storm drain that allowed water to bypass the storm drain and
exacerbate the drainage problem. Respondent was unaware of any
inspections of the storm drain site in question. There had been
construction work on a bridge in the vicinity of the storm drain in
question by respondent. Respondent acknowledged that from the
photographic evidence there was ice and debris on Route 52/3
(Johnstown Road) on the date and time in question.
The well established principle of law in West Virginia is that
the State is neither an insurer nor a guarantor of the safety of
motorists upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46
S.E.2d 81 (1947). In order to hold respondent liable for road
defects of this type, claimant must prove that respondent had
actual or constructive notice. Pritt vs. Dept. of Highways, 16 Ct.
Cl. 8 (1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
In the present case, the evidence established that the
respondent was put on notice about the drainage problem, that
respondent knew or should have known that the drainage problem at
the location in question was a hazard, and that the respondent did
not take reasonable steps to ensure the safety of those on such a
road. Consequently, there is sufficient evidence of negligence to
base an award.
Notwithstanding this finding of negligence, the Court is still
faced with the issue of the value of claimant's vehicle. At the
April 14, 1999, hearing, there was no testimony regarding the value
of claimant's vehicle in order to substantiate the claimed values.
Accordingly, the Court finds the value of claimant's vehicle to be
$1,000.00 Therefore, in view of the foregoing, the Court hereby
makes the following award.
Award of $1,000.00