OPINION ISSUED DECEMBER 6, 1999
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage and personal
njuries which occurred as a result of her vehicle striking rock
debris while traveling southbound on W.Va. Route 2 between Paden
City and Sistersville. W.Va. Route 2 is a road maintained by
respondent in Tyler County. The Court is of the opinion to deny
this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on February
27, 1999, at approximately 6:30 to 6:40 a.m. On the rainy and
foggy morning in question, claimant was traveling southbound on
W.Va. Route 2, her regular route to her job as a home health nurse.
Claimant carefully proceeded along W.Va. Route 2 with the aid of
her vehicle's headlights at a speed of about forty-five miles per
hour because of the weather conditions. There was a vehicle in
front of and one behind her vehicle, with about a car length
between each of them. Suddenly, claimant heard a loud noise and
then her 1987 Chevy Camaro was struck by falling rocks. The impact
of the rocks spun her vehicle around and pushed it against the
guardrail. The vehicle had to be towed to a garage for repairs.
The vehicle was later determined to be a total loss and taken to a
junkyard. In addition, claimant sustained knee and head injuries.
Claimant did not have collision damage insurance on her car.
Claimant suffered a loss in the amount of $5,000.00 for the loss of
the vehicle, towing charges as well as storage of the vehicle and
The position of respondent was that it had neither actual nor
constructive notice for this rock fall incident on W.Va. Route 2.
According to claimant's Tyler County Highway Administrator, the
rock fall debris was immediately removed from W.Va. Route 2 after
notification. Also, the area is clearly marked by "falling rock"
road signs. While claimant testified that she had contacted
respondent on numerous occasions, respondent denied having any
prior notice of the condition of W.Va. Route 2.
The Court has consistently held that in claims of this nature,
without a positive showing that respondent had actual or
constructive notice of a dangerous condition, such as falling rocks
and rock debris, posing a threat of injury to property is
insufficient to justify an award. Mitchell vs. Division of
Highways, 21 Ct. Cl. 91 (1996); Hammond vs. Division of Highways,
11 Ct. Cl. 234 (1977). In order to establish liability on behalf of respondent, the evidence must establish that respondent had
notice of the dangerous condition posing the threat of injury to
property and a reasonable time to take suitable action to protect
motorists. Alkire vs. Division of Highways, 21 Ct. Cl. 179 (1997).
In this claim, the Court is of the opinion that respondent
reasonably maintained this portion of W.Va. Route 2. In the 1997
claim, Williams vs. Division of Highways, a similar incident
occurred on W.Va. Route 2, near Sistersville. Id., 21 Ct. Cl. 175
(1997). At that time, W.Va. Route 2 was described as a top
priority road that was a known rock fall area and was patrolled
five times per week. Id. In Williams, this Court held respondent
liable when it failed to establish that it had marked the area with
"falling rock" road signs. Id. As this Court stated in Williams:
"The mountainous topography and numerous rural communities in
West Virginia require the respondent to construct and maintain
roads through areas which are prone to falling rocks. In these
areas, the respondent has a duty to reduce the risk of harm to
motorists. This duty can be fulfilled by . . . effectively warning
motorists of the potential for falling rocks when correction is not
The evidence adduced at the September 16, 1999, hearing
established that respondent had taken measures to help assure the
safety of the traveling public while traveling on W.Va. Route 2 in
Tyler County. In addition, claimant knew that this area has a
propensity for rock falls and that the area was experiencing rock
falls at the time of the incident. While the Court is sympathic to
claimant's plight, the fact remains that there is insufficient
evidence of negligence upon which to base an award.
In view of the foregoing, the Court does hereby deny this