OPINION ISSUED JUNE 8, 2000
RALPH S. COMBS AND NORMA L. COMBS
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimants brought this action for vehicle damage sustained
when their vehicle struck debris as claimant Norma L. Combs was
traveling southbound on I-79 near the town of Jane Lew at mile
marker 106.At the April 20, 2000, hearing the Court amended the
style of the claim to reflect the fact that both Mr. and Mrs. Combs
are owners of the vehicle. I-79 is a road maintained by respondent
in Harrison 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 September
18, 1999, at approximately 10:00 a.m. On the morning in question,
claimant Norma L. Combs and a friend, Carolyn Brooke, were
proceeding southbound from Clarksburg. They were in the right lane
of I-79 in claimants' 1998 Chrysler Concorde LXI traveling at a
speed of about fifty-five miles per hour. As Mrs. Combs proceeded
along the road near mile marker 106 in Jane Lew, she maneuvered the
vehicle into the passing lane to pass another vehicle. After
passing the vehicle, Mrs. Combs observed a binder ratchet tie down
and other tractor trailer debris on the road surface of the passing
lane. Mrs. Combs tried to swerve the vehicle around the debris,
but during the process, the vehicle struck the debris. The impact
with the debris caused the vehicle's front tire to burst, punctured
portions of the plastic cover underneath the vehicle, and punctured
the gas tank. Afterwards, one of respondent's courtesy patrolmen
stopped to assist Mrs. Combs in changing the vehicle's tire and
cleared the debris from the road surface. While claimants
sustained a loss in the amount of $1,295.03, they have a deductible
feature of $500.00 in their motor vehicle insurance policy and any
recovery would be limited to this amount. Sommerville, et at. vs.
Div. of Highways, 18 Ct. Cl. 110 (1991).
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). The unexplained presence of debris on the road
surface, without a positive showing of negligence on the part of
the respondent, is insufficient to justify an award. Salmen vs. Div. of Highways (CC-97-365), unpublished OPINION ISSUED December
In this present claim, the evidence adduced at the April 20,
2000 hearing failed to establish that respondent had notice of a
hazardous condition on I-79 in Harrison County. While the Court is
of the opinion that claimants' vehicle struck debris on the road
surface of I-79, that fact alone is insufficient to establish
negligence on the part of respondent. Consequently, there is
insufficient evidence of negligence 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 deny