OPINION ISSUED JUNE 8, 2000
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage which occurred
when his vehicle was struck by a rock while a friend was driving
his vehicle on W.Va. Route 10 from Man towards Logan. W.Va. Route
10 at this location is maintained by respondent in Logan 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 December 8,
1998, at approximately 5:00 p.m. At dusk on the rainy evening in
question, claimant's friend, Linda Kaye Adkins, proceeded on W.Va.
Route 10 at a speed of about twenty miles per hour in a twenty-five
per hour speed zone in claimant's 1997 Chevrolet Cavalier, from her
place of employment in Man to her residence in Logan. Ms. Adkins
travels this portion of road on a regular basis and was aware that
it was a known rock fall area. As Ms. Adkins operated the vehicle
on an uphill portion of the road close to the hillside, and before
what she described as a sharp "S" shaped curve in the road, the
vehicle was suddenly struck on the right side by a rock that had
fallen from the right side of the road. Afterwards, Ms. Adkins
stopped along the road at a safe location and inspected the
vehicle. Fortunately, Ms. Adkins did not sustain a personal injury,
but the right front area of the vehicle sustained damage.
Claimant's daughter, Leigh Ann Justice, then contacted the Man
Police Department regarding the incident and an officer
investigated the incident and filed a police report. The damages
sustained to claimant's vehicle were estimated in the amount of
$754.99, however, claimant's motor vehicle insurance policy has a
deductible feature of $500.00 and any recovery would be limited to
that amount. See Sommerville, et al. vs. Div. of Highways, 18 Ct.
Cl. 110 (1991).
The position of respondent was that it had neither actual nor
constructive notice for this rock fall incident on W.Va. Route 10.
According to respondent, this portion of road is a known rock fall
area and is clearly marked by "falling rock" road signs. Before
this incident, respondent denied having any notice of the condition
of W. Va. Route 10.
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).
The evidence adduced at the March 23, 2000, hearing failed to
establish that respondent had notice of the road condition and did
not take measures to help assure the safety of the traveling public
while traveling on W.Va. Route 10 in Logan County. In addition,
Ms. Adkins knew that this area has a propensity for rock falls.
While the Court is sympathetic to claimant's plight, the fact
remains that 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 hereby
deny this claim.