OPINION ISSUED JANUARY 19, 2001
JIMMY MCLEAN AND PAULA MCLEAN
DIVISION OF HIGHWAYS
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimants brought this action for vehicle damage sustained
when their vehicle struck a hole while claimant Paula McLean was
traveling northbound on Route 20 in Nutter Fort. At this location,
Route 20 is maintained by respondent in Harrison County. The Court
is of the opinion to deny this claim for the reasons more fully set
The incident giving rise to this claim occurred on November
17, 1999, at approximately 7:00 a.m. On the clear morning in
question, claimant Paula McLean was traveling northbound on Route
20 in Nutter Fort in claimants' 1997 Ford Escort at a speed of
about twenty-five to thirty-five miles per hour. She was driving
her father to the Veterans Administration Hospital in Clarksburg.
At this location, Route 20 is a two-lane asphalt road, with a width
of twenty-two feet, eleven inches and a speed limit of thirty-five
miles per hour. The center of the road surface is indicated by
double yellow lines and white lines indicate the edges of the
pavement. The width of the northbound lane is ten feet seven
inches from the inside yellow line to the white line. The southern
side of Route 20 is a hillside, locally known as Johnson's Hill.
As Ms. McLean was driving the vehicle along the edge of the road
she inadvertently drove the vehicle onto the berm and into a deep
hole. The hole was approximately five feet long, two to three feet
wide, and eight inches deep. While there was moderate traffic on
the road, Ms. McLean was not forced onto the edge of the road by
oncoming traffic. She testified that she did not observe any
warning signs on the road about the condition of the berm and she
was not aware of the hole before the vehicle struck it. As a
result of this incident, claimants' vehicle sustained damage in
excess of the deductible feature of $250.00 in claimants' motor
vehicle insurance policy. In accordance with the Court's decision
in Summerville, et al. vs. Division of Highways, any recovery would
be limited to the amount of their deductible feature. See Id., 18
Ct. Cl. 110 (1991).
The position of respondent was that it did not have notice of
the hole on Route 20 in Harrison County. According to Investigator
for the Legal Division, Paul Lister, this portion of Route 20 is a
problem area because water from the hillside saturates the road and
heavy truck traffic travels on the edge of the road, creating holes
on the edge of the travel portion of the road. Since Ms. McLean's incident, measures have been taken to remedy this situation.
This Court has been very consistent in regard to berm claims.
When a motorist uses the berm of the road in a non-emergency
situation, that motorist takes the berm as the motorist finds it.
Sweda vs. Department of Highways, 13 Ct. Cl. 249 (1980).
In the present claim, respondent had provided Ms. McLean a
good roadway for travel. Ms. McLean elected to travel on the edge
of the road surface. The hole in question was outside of the
travel portion of the road and Ms. McLean was not forced onto the
berm area. While the Court is sympathetic to claimants' plight,
the fact remains that there is insufficient evidence of negligence
on the part of 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 deny