OPINION ISSUED DECEMBER 20, 2000
JOSEPH S. FOSTER
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for the value of his vehicle when
his vehicle struck a boulder while he was traveling northbound on
W.Va. Route 2, south of Moundsville. At this location, W.Va. Route
2 is maintained by respondent in Marshall 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 February
28, 1999, at approximately 10:30 p.m. Claimant was traveling
northbound on W.Va. Route 2 in his 1991 Chevrolet S-1 pick-up truck
from his place of employment. At this location, W.Va. Route 2 is
a four-lane highway with a concrete median. While this area is not
part of the area commonly referred to as "the Narrows" between Glen
Dale and McMechen, it is a known rock fall area. A warning sign is
posted in the northbound lane about three-quarters of a mile from
the location in question. Claimant drove his vehicle through an
outside turn in the road, then an inside turn in the road.
Suddenly, he came upon a boulder on the travel portion of the road.
He attempted to maneuver his truck around the boulder, but the
right side of the truck struck the boulder. The damage sustained
was determined to be greater than the value of the vehicle so the
vehicle was "totaled." Claimant has a deductible feature of
$1,000.00 in his motor vehicle insurance policy. In accordance
with the Court's decision in Sommerville et al. vs. Div. of
Highways, any recovery would be limited to this amount. See Id.,
18 Ct. Cl. 110 (1991). Afterwards, claimant informed the West
Virginia State Police of the incident.
The position of respondent is that it did not have notice of
the boulder on W.Va. Route 2 in Marshall County. According to
County Administrator Ronald William Faulk, this area is a known
rockfall area and is regularly patrolled because of the freeze-thaw
cycles that occur during the month of February. Mr. Faulk
testified that he drives this road daily and that respondent has
had numerous reports of rock removal from this portion of road.
Respondent further asserts that this area is well marked as a
In this claim, the evidence established that respondent had
actual knowledge of a hazardous condition on W.Va. Route 2 in
Marshall County. Last
year, the Court heard two separate rockfall claims regarding this area. See Hundagen vs. Div. of Highways (unpublished OPINION
ISSUED December 6, 1999); Williams vs. Div. of Highways,
(unpublished OPINION ISSUED December 6, 1999). In those claims,
the Court held that the actions of respondent were insufficient
because it had notice of a hazardous condition posing a threat to
the traveling public. Since then, respondent has failed to take
any permanent remedial measures in order to assure motorists may
travel safely in this area. There was no showing that respondent
did anything beyond routine patrolling of W.Va. Route 2.
Consequently, there is sufficient 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
stated herein above, the Court is of the opinion to and does make
an award in this claim.
Award of $1,000.00.