OPINION ISSUED DECEMBER 6, 1999
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought two separate claims for vehicle damage which
occurred as a result of highway debris being thrown onto her parked
vehicle as it sat in front of her residence on W.Va. Route 27, also
known as Washington Pike, in Wellsburg, Brooke County. W.Va. Route
27 is a road maintained by respondent in Brooke County. The Court
is of the opinion to make an award in these claims for the reasons
more fully stated below.
W.Va. Route 27, Washington Pike as it is locally known, is a
high priority two lane road in Brooke County. The width of W.Va.
Route 27 is twenty-one to twenty-three feet wide and there is a
speed limit of forty-five miles per hour. Along the road, the ten
foot berm is used for parking. The topographical outlay of W.Va.
Route 27 creates a slope with sides. This topographical feature
allows water runoff on to the roadway, which creates a serious
drainage problem in the area. In addition, heavy truck traffic is
frequently on the road. The trucks use W.Va. Route 27 as a
shortcut to get to the Interstate. The combination of the drainage
problem and the truck traffic keep W.Va. Route 27, Washington Pike,
in a constant state of disrepair. Due to insufficient paving
funds, W.Va. Route 27 has not been paved since 1987. Respondent in
Brooke County repairs and sweeps the road on a regular basis.
However, the road continues to fall into disrepair. As a result,
the road is filled with numerous holes and scattered highway
debris. When truck traffic proceeds through the area, trucks hit
the holes and water, kicking up water and highway debris onto the
The incident giving rise to the first claim occurred on
January 27, 1998. Claimant's 1990 four-door Corsica was parked
facing west on the berm of W.Va. Route 27 which is adjacent to her
residence. Claimant is limited to parking in this area in front of
her residence because of the size of the road and the drainage
problem. At about 6:30 a.m., a speeding truck passed by, throwing
asphalt debris onto the vehicle's front windshield, cracking it.
The resulting loss to claimant for replacement of the front
windshield was in the amount of $222.35. Claimant reported the
incident to her motor vehicle insurance carrier and the deductible
feature in the sum of $100.00 was paid by claimant in order to get
the vehicle's front windshield repaired.
The incident giving rise to the second claim occurred on February 5, 1998. On this occasion, claimant's vehicle was parked
facing east outside of her residence on W.Va. Route 27. Sometime
during the night, a vehicle passed by throwing asphalt debris onto
the vehicle, breaking the back windshield. Upon discovering the
broken back windshield, claimant's fiancé, Blaine J. Pannett, Jr.,
telephoned the Brooke County Sheriff's Department. A member of the
Brooke County Sheriff's Department investigated the incident and
filed a report concluding that a vehicle had thrown highway debris
onto claimant's vehicle. The resulting loss to claimant for
replacement of the back windshield was estimated in the amount of
$394.88. As aforementioned, claimant has a deductible feature in
the sum of $100.00 in her motor vehicle insurance policy coverage.
Although, this incident was not turned over to claimant's insurance
carrier, her recovery is limited to the amount of her deductible.
In order to establish liability on behalf of respondent, the
evidence must establish that respondent had notice of a 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); Mitchell vs. Division
of Highways, 21 Ct. Cl. 91 (1996); Hammond vs. Division of
Highways, 11 Ct. Cl. 234 (1977).
In the present claim, the Court is of the opinion that W.Va.
Route 27 or Washington Pike, poses a hazard not only to the
traveling public but also to claimant. Respondent knows that this
area has a serious drainage and traffic problem. The regular
maintenance procedures of respondent are no longer sufficient to
maintain this roadway. The actions taken by respondent are clearly
insufficient to rectify the hazardous roadway. This Court in
finding the State Road Commissioner liable in the claim Varner's
Adm'n vs. State Road Comm'n, stated:
"[W]hen the State Road Commissioner knows or should know that an
unusually dangerous condition exists, there is a duty to inspect
and to correct the condition within the limits of the funds
appropriated by the Legislature for maintenance purposes."
Pursuant to West Virginia Code Sections 17-2A-1 and 5F-2-1, the
Division of Highways, formerly the office of State Road
Commissioner, was transferred to and administratively attached to
the Department of Transportation by the Executive Reorganization
Act of 1989.
Id., 8 Ct. Cl. 119, 122 (1970); See also Cole vs. Division of
Highways, 21 Ct. Cl. 15 (1995); Smith vs. Division of Highways, 11
Ct. Cl. 221 (1997). Respondent has breached this duty owed to the
traveling public. The evidence adduced at the September 16, 1999,
hearing demonstrated that a hazardous condition of W.Va. Route 27
existed at the time of the incidents to claimant's vehicle and that
respondent did nothing beyond the routine repair and sweeping of
West Virginia 27, Washington Pike, in Wellsburg, Brooke County. As
a result, the Court is of the opinion that respondent was negligent
in its maintenance of W.Va. Route 27 for which claimant may recover for the damages sustained to her vehicle.
In view of the foregoing, the Court is of the opinion to and
does make an award to the claimant in the amount of her deductible
feature, $200.00, for the two claims.
Award of $200.00