OPINION ISSUED AUGUST 24, 2000
HOWARD L. KEYSER
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage sustained when
his vehicle's windshield was struck by loose gravel when he was
traveling on W.Va. Route 62 at Clifton between Point Pleasant and
New Haven. W.Va. Route 62 at this location is a road maintained by
respondent in Mason County. The Court is of the opinion to deny
this claim for the reasons more fully set forth below.The incident
giving rise to this claim occurred on May 24, 1999, at
approximately 9:30 p.m. On the night in question, claimant was
traveling on W.Va. Route 62 in his 1998 Mazda 626 at a speed of
about fifty to sixty miles per hour with the aid of the vehicle's
headlights. Mr. Keyser frequently travels this portion of W.Va.
Route 62. At this location, W.Va. Route 62 is two-lane, black top
road with double yellow lines indicating the center of the road
surface and white lines indicating the edges of the road surface.
Crushed class 1 limestone gravel, about one-half to one and
one-half inches in size, is placed along the berm of the road
surface. As Mr. Keyser drove the vehicle along the road, a vehicle
about four to five car lengths away propelled a piece of limestone
gravel on the road surface into the air which struck his vehicle's
windshield, impacting near the State inspection sticker. The
subsequent impact cracked the windshield and the crack eventually
split to the other side of the windshield by the following morning.
According to Mr. Keyser, respondent is negligent in its placement
of limestone gravel on the berms of State roadways because gravel
will get onto the road surface and is then propelled by vehicles.
As a result of this incident, his vehicle sustained damage in the
amount of $274.58. Mr. Keyser asserts that his comprehensive motor
vehicle insurance policy did not cover this incident. The Court
requested an abstract of Mr. Keyser's motor vehicle insurance
policy in effect at the time of the incident. As of the date of
this opinion, Mr. Keyser has failed to provide the Court with his
insurance abstract.51 In past claims, failure to tender an
insurance abstract requested by the Court has been grounds for
dismissal of a claim. See Phillips vs. Division of Highways,
(CC-97-87) OPINION ISSUED
The position of respondent was that it did not have notice
that the limestone gravel caused any hazard to the traveling public
on W.Va. Route 62. According to H. Ross Roush, Crew Supervisor for
respondent in Mason County, fifty percent of roads in West Virginia have limestone gravel along the berms. At this location, the road
surface of W.Va. was last paved in 1996 or 1997. Mr. Roush asserts
that he seldom receives complaints that gravel creates any problems
for the traveling public. While Mr. Roush acknowledged that
limestone gravel can and does get onto the road surface, he was
unaware of any complaints that any broken windshields may have
resulted from such loose gravel being thrown onto vehicles.
The well-established principle of law in West Virginia is that
the State is neither an insurer nor a guarantor of the safety of
travelers 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 of the defect and a reasonable time
to take corrective action. Chapman vs. Dept. of Highways, 16 Ct.
Cl. 103 (1986).
In the present claim, the evidence failed to establish that
respondent had notice of a hazardous condition on W.Va. Route 62.
While the Court is sympathetic to claimant's plight, the fact that
loose gravel does get onto the road surface is insufficient to
constitute negligence on the part of respondent. Respondent cannot
be expected to construct every berm in this State in such a manner
as to prevent loose gravel from getting onto a road surface.
Consequently, there is insufficient evidence of negligence on 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 deny