STATE OF WEST VIRGINIA
REPORT
OF THE
COURT OF CLAIMS
For the Period from July 1, 2005
to June 30, 2007
by
CHERYLE M. HALL
CLERK
Volume XXVI
(Published by authority W.Va. Code § 14-2-25)
TABLE OF CONTENTS
Page
Crime Victims Compensation Fund Orders156
Former judgesV
Letter of transmittalVI
Opinions of the CourtVIX
Personnel of the CourtIV
References126
Terms of CourtVII
PERSONNEL
OF THE
STATE COURT OF CLAIMS
HONORABLE FRANKLIN L. GRITT JR.Presiding Judge
HONORABLE GEORGE F. FORDHAMJudge
HONORABLE ROBERT B. SAYREJudge
CHERYLE M. HALLClerk
DARRELL V. MCGRAW JR.Attorney General
FORMER JUDGES
HONORABLE JULIUS W. SINGLETON JR.July 1, 1967 to
July 31, 1968
HONORABLE A. W. PETROPLUSAugust 1, 1968 to
June 30, 1974
HONORABLE HENRY LAKIN DUCKERJuly 1, 1967 to
October 31, 1975
HONORABLE W. LYLE JONESJuly 1,1974 to
June 30, 1976
HONORABLE JOHN B. GARDENJuly 1,1974 to
December 31, 1982
HONORABLE DANIEL A. RULEY JR.July 1, 1976 to
February 28, 1983
HONORABLE GEORGE S. WALLACE JR.February 2, 1976 to
June 30, 1989
HONORABLE JAMES C. LYONSFebruary 17, 1983 to
June 30, 1985
HONORABLE WILLIAM W. GRACEYMay 19, 1983 to
December 23, 1989
HONORABLE DAVID G. HANLONAugust 18, 1986 to
December 31, 1992
HONORABLE ROBERT M. STEPTOEJuly 1, 1989 to
June 30, 2001
HONORABLE DAVID M. BAKERApril 10, 1990 to
June 30, 2005
HONORABLE BENJAMIN HAYS IIMarch 17, 1993 to
March 17, 2004
LETTER OF TRANSMITTAL
To His Excellency
The Honorable Joe Manchin, III
Governor of West Virginia
Sir:
In conformity with the requirements of section twenty-five of the Court of
Claims law, approved March eleventh, one thousand nine hundred sixty-seven, I have
the honor to transmit herewith the report of the Court of Claims for the period from July
one, two thousand five to June thirty, two thousand seven.
Respectfully submitted,
CHERYLE M. HALL,
Clerk
TERMS OF COURT
Two regular terms of court are provided for annually the second
Monday of April and September.
blank page VIII
OPINIONS
Court of Claims
TABLE OF CASES REPORTED
ALLEN, ROBERT A. ALLEN and JESSICA B. VS. DIVISION OF HIGHWAYS
(CC-05-236)86
ARAMARK FACILITY SERVICES, INC., VS. CONCORD UNIVERSITY
(CC-04-436)8
AREHART, LINDA VS. DIVISION OF HIGHWAYS (CC-05-429)117
AT&T VS. DIVISION OF CORRECTIONS (CC-06-179)77
BARBOUR COUNTY COMMISSION VS. DIVISION OF CORRECTIONS (CC-
05-137)15
BEAL, BERYL VS. DIVISION OF HIGHWAYS (CC-04-222)63
BELL, ORVILLE W. JR. VS. DIVISION OF HIGHWAYS (CC-05-212)36
BELLER, JEROMEY CHAD VS. DIVISION OF HIGHWAYS (CC-04-291)78
BERWINKLE, JO ANN BERWINKLE and WILLIAM T. VS. DIVISION OF
HIGHWAYS (CC-05-424)87
BIRD, LINDA as ADMINISTRATRIX of the Estates of EMZIE SOVINE and
MILDRED SOVINE VS. DIVISION OF HIGHWAYS (CC-04-232)71
BLAIR, DeWITT KEITH VS. DIVISION OF HIGHWAYS (CC-06-080)98
BLANKENSHIP, RALPH VS. REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY (CC-05-275)16
BROWNING, CHARLES BROWNING and CONNIE VS. DIVISION OF
HIGHWAYS (CC-05-152)106
BUCHANAN, K. ROBERT BUCHANAN and CRYSTLE L. VS. DIVISION OF
HIGHWAYS (CC-04-180)13
CALLAHAN, LAURA VS. DIVISION OF HIGHWAYS (CC-04-044)29
CAMPBELL, PAMELA L. VS. DIVISION OF HIGHWAYS (CC-04-149)33
CARR, JEFFERY E. VS. DIVISION OF HIGHWAYS (CC-04-116)122
CARTER, DAVID R. VS. DIVISION OF HIGHWAYS (CC-04-545)24
CHARLESTON AREA MEDICAL CENTER INC. VS. DIVISION OF
CORRECTIONS (CC-05-442)53
CHARLESTON CARDIOLOGY GROUP VS. DIVISION OF CORRECTIONS
(CC-06-121)69
CITIZENS TELECOMMUNICATIONS COMPANY OF WV, dba FRONTIER
COMMUNICATIONS OF WV VS. SUPREME COURT OF APPEALS
(CC-05-096)83
CLINE, CONNIE VS. DIVISION OF HIGHWAYS (CC-05-427)88
COLLINS, ROBERT KELLY VS. DIVISION OF HIGHWAYS (CC-02-308)119
CONNER, ROBERT V. VS. DIVISION OF HIGHWAYS (CC-05-195)57
COOK, JOSHUA JAMES VS. DIVISION OF HIGHWAYS (CC-04-185)22
CORLEY, FELICIA VS. DIVISION OF HIGHWAYS (CC-05-345)116
CORRECTIONAL MEDICAL SERVICES INC. VS. DIVISION OF
CORRECTIONS (CC-05-422)51
COUNTRY INN & SUITES VS. PUBLIC SERVICE COMMISSION
(CC-06-394)111
CRANE, TAMMY VS. DIVISION OF HIGHWAYS (CC-05-302)87
CRITES, LONNIE R. CRITES and ROSA LYNN VS. DIVISION OF HIGHWAYS
(CC-04-422)34
CRUSE, JOHN W. VS. OFFICE OF MINERS' HEALTH, SAFETY AND
TRAINING (CC-06-367)111
DADDYSMAN, TOM VS. DIVISION OF HIGHWAYS (CC-04-055)31
DAVIS MEMORIAL HOSPITAL VS. DIVISION OF CORRECTIONS (CC-05-
379)38
DELANEY, PHILLIP TERRY VS. REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY (CC-06-123)70
DIETZ, SANDRA S. VS. DIVISION OF HIGHWAYS (CC-05-010)44
DODDRILL, KENNETH W. VS. DIVISION OF HIGHWAYS (CC-04-197)23
EGGERICHS, DIANA S. VS. DIVISION OF HIGHWAYS (CC-04-520)94
EISENMAN, GARY EISENMAN and REBECCA VS. DIVISION OF HIGHWAYS
(CC-04-864)41
EQUIFAX INFORMATION SERVICES LLC VS. WEST VIRGINIA DIVISION OF BANKING (CC-06-001)54
FINDO, JEFFREY VS. DIVISION OF HIGHWAYS (CC-06-064)92
FORSTER, TRUDY L. VS. DIVISION OF HIGHWAYS (CC-05-348)95
FURBEE, DARLA VS. DIVISION OF HIGHWAYS (CC-06-031)97
GALLOURAKIS, GLORIA JUNE VS. DIVISION OF HIGHWAYS
(CC-06-093)99
GEORGE, DAVIN W. VS. DIVISION OF HIGHWAYS (CC-04-562)10
GERAUD, ANTOINE E. VS. DIVISION OF HIGHWAYS (CC-06-027)91
GHAREEB, MAKHOUL VS. DIVISION OF HIGHWAYS (CC-04-481)71
GIBSON, TINA L. VS. DIVISION OF HIGHWAYS (CC-04-439)115
GIVENS, RALPH E. GIVENS and PHYLLIS J. VS. DIVISION OF HIGHWAYS
(CC-04-505)12
GRAFTON CITY HOSPITAL VS. DIVISION OF CORRECTIONS
(CC-05-443)53
GUZMAN, TONY GUZMAN and CONNIE SUE VS. DIVISION OF HIGHWAYS
(CC-05-347)89
HAINER, JOANN HAINER and JERRY VS. DIVISION OF HIGHWAYS
(CC-04-533)114
HAMNER, ROBERT M. VS. DIVISION OF HIGHWAYS (CC-05-256)66
HARRINGTON, MICHELLE L. VS. DIVISION OF HIGHWAYS (CC-03-536)27
HAYNES, TRACY HAYNES and CHAD VS. DIVISION OF HIGHWAYS
(CC-05-369)125
HESS, REBECCA J. VS. DIVISION OF MOTOR VEHICLES (CC-06-335)94
HILES, LUCY HILES and AMELIA VS. DIVISION OF HIGHWAYS
(CC-05-355)109
HOLSTEIN, TIMOTHY ALLEN VS. DIVISION OF HIGHWAYS
(CC-05-194)74
HUDNALL, LORI VS. DIVISION OF HIGHWAYS (CC-05-035)74
HUFF, COLISIA A. VS. DIVISION OF HIGHWAYS (CC-04-567)42
ILSON, HOMER J. III VS. DIVISION OF MOTOR VEHICLES (CC-06-117)68
INTEGRATED HEALTHCARE PROVIDERS VS. DIVISION OF
CORRECTIONS (CC-05-433)52
JOHNSON NICHOLS FUNERAL HOME VS. DEPARTMENT OF HEALTH
AND HUMAN RESOURCES (CC-05-463)59
KAUFMAN, WAYNE VS. DIVISION OF HIGHWAYS (CC-06-004)117
KINGERY, JANICE L. VS. DIVISION OF HIGHWAYS (CC-05-028)73
LACY, JOHN W. and KRISTI R. LACY VS. DIVISION OF HIGHWAYS
(CC-05-390)118
LANDERS, GEORGE F. VS. DIVISION OF HIGHWAYS (CC-05-077)47
LANHAM, ROBERT P. VS. DIVISION OF HIGHWAYS (CC-05-103)17
LAVENDER, LISA ROAT VS. DIVISION OF HIGHWAYS (CC-03-498)2
LAWRENCE, PHILIP S. VS. DIVISION OF HIGHWAYS (CC-05-333)108
LEVITT, RICKIE M. VS. DIVISION OF HIGHWAYS (CC-05-344)115
LONG, TRAVIS E. VS. DIVISION OF HIGHWAYS (CC-03-501)61
LONG, CHARLES R. VS. DIVISION OF HIGHWAYS (CC-03-380)4
LOUGHRIE, WILLIAM VS. DIVISION OF HIGHWAYS (CC-05-121)56
LUCAS, TERESA A. VS. DIVISION OF HIGHWAYS (CC-05-245)49
MARTIN, ROCKY L. VS. DIVISION OF HIGHWAYS (CC-04-028)28
MASTERS, SHANNON G. VS. DIVISION OF HIGHWAYS (CC-05-116)25
MATTHEWS, DENA A. VS. DIVISION OF HIGHWAYS (CC-06-242)93
MCGREW, KARON VS. DIVISION OF HIGHWAYS (CC-03-435)3
MEADOWS, JAMES R. MEADOWS and ROBERTA J. VS. DIVISION OF
HIGHWAYS (CC-06-253)100
MEESTER, STEVEN VS. DIVISION OF HIGHWAYS (CC-04-479)123
MERCER, DOROTHY VS. DIVISION OF HIGHWAYS (CC-02-085)59
MIDDLETON, MARLENE dba THE CUTTING EDGE VS. DIVISION OF
HIGHWAYS (CC-04-337)111
MIDDLETON, MARLENE dba THE CUTTING EDGE VS. DIVISION OF
HIGHWAYS (CC-04-337)78
MIGHTY MITE CORPORATION and FRANKLIN GROGG and RHODA VS.
GROGG DIVISION OF HIGHWAYS (CC-04-382 and
CC-04-383)79
MILLER, RICHARD MILLER and MELINDA VS. DIVISION OF HIGHWAYS
(CC-05-425)90
MITCHEM, DOROTHY J. MITCHEM and JOSEPH S. VS. DIVISION OF
HIGHWAYS (CC-05-03255
MOLES, DAVID L. VS. DIVISION OF HIGHWAYS (CC-02-288)121
MONONGALIA GENERAL HOSPITAL VS. DIVISION OF CORRECTIONS
(CC-05-214)14
MONROE COUNTY SCHOOLS and MONROE COUNTY BOARD OF
EDUCATION VS. WEST VIRGINIA DEPARTMENT OF
EDUCATION (CC-03-572)101
MOONEY, DEE L. VS. DIVISION OF HIGHWAYS (CC-04-858)14
MOORE, TIFFANY VS. DIVISION OF HIGHWAYS (CC-04-098)20
MORRISON, SAM VS. DIVISION OF HIGHWAYS (CC-05-374)75
NDC HEALTH CORPORATION VS. DIVISION OF REHABILITATION
SERVICES (CC-06-049)58
NEAL, RHONDA VS. DIVISION OF HIGHWAYS (CC-05-435)75
NELSON, NIXON D. VS. DIVISION OF HIGHWAYS (CC-04-034)11
NUCKOLLS, ROBERT VS. DIVISION OF HIGHWAYS (CC-06-213)125
NULL, TRUDA VS. DIVISION OF HIGHWAYS (CC-03-495)89
O'BRIEN, JANE as Administratrix of the Estate of WILLIAM PAUL O'BRIEN
VS. DIVISION OF HIGHWAYS (CC-04-515)106
PANHANDLE HOMES INC., VS. DIVISION OF HIGHWAYS (CC-05-400)112
PANRELL, LENARD ANTHONY VS. DIVISION OF HIGHWAYS
(CC-02-200)39
PARKER, RANDY VS. DIVISION OF HIGHWAYS (CC-04-133)32
PENNINGTON, JOYCE PENNINGTON and LARRY VS. DIVISION OF
HIGHWAYS (CC-05-255)84
PHILLIPS, ROBERT G. VS. DIVISION OF HIGHWAYS (CC-05-153)48
POWNALL, MICHELLE VS. REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY (CC-05-294)107
PUBLIC EMPLOYEES INSURANCE AGENCY VS. DIVISION OF
CORRECTIONS (CC-06-116)70
RHODES, ENOLIA VS. DIVISION OF HIGHWAYS (CC-02-175)1
RICHMOND, MELISSA A. VS. DIVISION OF HIGHWAYS (CC-03-375)26
RILEY, MARK RILEY AND CARLA VS. DIVISION OF HIGHWAYS
(CC-06-197)110
ROBINSON, JAMES ROBINSON and ANNE VS. DIVISION OF HIGHWAYS
(CC-06-079)85
ROBINSON, RENA VS. DIVISION OF HIGHWAYS (CC-04-631)72
ROESE, CONNIE VS. DIVISION OF HIGHWAYS (CC-04-064)19
ROSE, CARLA R. VS. DIVISION OF HIGHWAYS (CC-05-115)35
RUBENSTEIN, JAMES E. VS. DIVISION OF HIGHWAYS (CC-05-426)113
RYAN, ARNOLD W. II VS. PUBLIC SERVICE COMMISSION (CC-05-314)38
SAMPLES, SUSAN A. VS. DIVISION OF HIGHWAYS (CC-04-132)31
SAMPLES, JAMES VS. DIVISION OF CORRECTIONS (CC-04-580)43
SGS NORTH AMERICA VS. DIVISION OF LABOR (CC-05-395)51
SHAW, DONNIE L. VS. DIVISION OF HIGHWAYS (CC-05-290)84
SHIRK, ROBERT D. VS. DIVISION OF HIGHWAYS (CC-04-159)21
SHOUP, JOHN R. VS. DIVISION OF HIGHWAYS (CC-04-570)64
SLIGER, SANDRA LYNN SLIGER and RICHARD M. VS. DIVISION OF
HIGHWAYS (CC-04-362)33
SMALL, ROBERT C. VS. DIVISION OF HIGHWAYS (CC-06-060)91
SMITH, DANIEL SMITH and VALERIE VS. DIVISION OF HIGHWAYS
(CC-05-361)67
SMITH, HARRY W. JR. VS. DIVISION OF HIGHWAYS (CC-05-254)83
SPAULDING, MISTY BROWN VS. DIVISION OF HIGHWAYS
(CC-02-119)100
STARCHER, MARLYN VS. DIVISION OF HIGHWAYS (CC-04-942)65
STINES, CARYL L. VS. DIVISION OF HIGHWAYS (CC-05-062)18
TAO, ANN B. VS. DIVISION OF HIGHWAYS (CC-04-482)72
THOMPSON, LAWRENCE VS. REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY (CC-06-131)114
TYGART VALLEY TOTAL CARE CLINIC VS. DIVISION OF CORRECTIONS
(CC-05-181)16
VANCE, WOODROW W. VS. DIVISION OF HIGHWAYS (CC-06-053)76
VIRDEN, ROGER VS. DIVISION OF HIGHWAYS (CC-05-402)96
WALKER, ARRETTA JANE VS. REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY (CC-04-624)68
WEBB, MARK DANIEL WEBB and NANCY RANEE VS. DIVISION OF
HIGHWAYS (CC-04-095)7
WELLING, PATRICIA A. VS. DIVISION OF HIGHWAYS (CC-05-052)46
WENDT, ARNOLD VS. DIVISION OF HIGHWAYS (CC-05-013)54
WEST VIRGINIA TRUCK & TRAILER, INC. VS. DIVISION OF LABOR
(CC-05-268)17
WILLIAMS, MELISSA GAIL VS. DIVISION OF HIGHWAYS (CC-05-312)85
WOLFE, KITTY VS. DIVISION OF HIGHWAYS (CC-05-306)50
WRIGHT, RICKEY A. WRIGHT and BONNIE D. VS. DIVISION OF
HIGHWAYS (CC-04-074)62
YOUNG, MICHAEL E. VS. DIVISION OF HIGHWAYS (CC-03-298)5
ZERVOS, JOYCE and NICK F. ZERVOS JR. VS. DIVISION OF HIGHWAYS
(CC-05-042)45
Cases Submitted and Determined
in the Court of Claims in the
State of West Virginia
__________________
OPINION ISSUED SEPTEMBER 6, 2005
ENOLIA RHODES
VS.
DIVISION OF HIGHWAYS
(CC-02-175)
Claimant appeared pro se.
Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her
vehicle struck a sign post as she was traveling on Route 25 near Nitro, Kanawha County.
Route 25 is a road maintained by respondent. This claim was heard in part on April 8,
2004, at which time the claimant testified in her own behalf. The claim was rescheduled
for hearing on May 5, 2005, at which time respondent presented its witness. Claimant
was not present at that hearing although she had been duly notified by the Clerk of the
Court. The Court thereupon submitted the claim for determination. The Court is of the
opinion to deny the claim for the reasons more fully stated below.
The incident giving rise to this claim occurred sometime in the afternoon of
April 9, 2002. Route 25 is a two-lane highway at the area of the incident involved in
this claim. Claimant testified that Loretta Hicks was driving claimant's vehicle. Ms.
Hicks was turning the vehicle around in an area on the side of the road when the vehicle
ran over a piece of a steel sign post that was sticking out of the ground about four
inches. Claimant stated that the post was for a sign that had been removed in some way.
She also stated that the piece of metal was protruding from the dirt and not from the
gravel or pavement. She also stated that the post was removed after the incident herein.
Claimant's vehicle sustained damage to the front right tire. The damage sustained
totaled $47.38.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route at the site of the claimant's accident for the date in
question.
Richard Light, a foreman for the respondent in Kanawha County, testified that
there had been no reports of a downed sign post made on or before the date of claimant's
incident. Mr. Light stated that he had never seen a post of any kind in that area. He
testified that he was not aware that there had been a sign post in that area before the time
of claimant's incident. He reviewed photographs of the area and the post submitted by
the claimant and he stated that the post in the photograph was not within the State's right
of way for Route 25.
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, a 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 instant case, the evidence established that the respondent did not have
actual or constructive notice of the broken sign post off of Route 25 prior to the incident
in question and that the post was not within the State's right of way. Consequently,
there is insufficient evidence of negligence upon which to justify an award and claimant
may not make a recovery for her loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
LISA ROAT LAVENDER
VS.
DIVISION OF HIGHWAYS
(CC-03-498)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 2000
Chevrolet Impala struck a section of broken pavement while she was traveling on W.
Va. Route 61 near Oak Hill, Fayette County. W. Va. Route 61 is a road maintained by
respondent. The Court is of the opinion to make an award in this claim for the reasons
more fully stated below.
The incident giving rise to this claim occurred around 2:00 p.m. on September
13, 2003, a sunny and clear day. W. Va. Route 61 is a two-lane highway at the area of
the incident involved in this claim. Claimant testified that she was driving on W. Va.
Route 61 with a vehicle in the oncoming lane driving near the yellow line. Ms.
Lavender stated that she drove her vehicle close to the edge of the highway to avoid the
oncoming vehicle. Her vehicle then struck a section of broken pavement that she had
not seen. Claimant stated that there was an eight inch drop off in the pavement.
Claimant's vehicle struck the broken section of pavement damaging both passenger side
rims and tires along with part of the undercarriage of the vehicle totaling $1,212.45.
Claimant's insurance deductible was $500.00.
The position of the respondent is that it did have actual notice of the condition
on W. Va. Route 61 at the site of the claimant's accident for the date in question but that
it did not have sufficient time to affect a repair.
Joe Donnally, a maintenance crew leader for the respondent in Fayette County,
testified that he was aware of the broken section of pavement along W. Va. Route 61.
Mr. Donnally stated that he had scheduled this section of road for repair during the week
following the claimant's incident. He testified that he normally makes the schedules two
weeks in advance so that the crews could finish the projects that they were currently on
before beginning a new one.
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, a 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 instant case, the Court is of the opinion that respondent had actual notice
of the broken section of pavement which claimant's vehicle struck and that this section
of road presented a hazard to the traveling public. Photographs in evidence depict the
section of broken pavement and provide the Court an accurate portrayal of the size and
location of the hole on W. Va. Route 61. The size of the broken pavement and the time
of the year in which claimant's incident occurred leads the Court to conclude that
respondent had notice of this hazardous condition and respondent had an adequate
amount of time to take corrective action. Having acknowledged notice of the hazardous
area, respondent was negligent in failing to warn the traveling public of the hazard.
Thus, the Court finds respondent negligent and claimant may make a recovery for the
damage to her vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
KARON MCGREW
VS.
DIVISION OF HIGHWAYS
(CC-03-435)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 2001
Dodge Neon struck a hole while she was traveling on County Route 73 near Charleston,
Kanawha County. County Route 73 is a road maintained by respondent. The Court is
of the opinion to make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred around 3:00 p.m. on May 9,
2003, a clear and dry day. County Route 73 is a two-lane highway at the area of the
incident involved in this claim. Claimant testified that she was driving on County Route
73 when she saw the hole. She stated that she had not seen the hole previously as
someone had been working on the road during the previous days. Ms. McGrew testified
that she had seen vehicles in front of her driving around the hole, but she was unable to
avoid it due to oncoming traffic in the other lane. Claimant's vehicle struck the hole
sustaining damage to the passenger side rims and tires. Ms. McGrew stated that the hole
was between four and six inches deep, four feet long and four feet wide. Claimant's
vehicle sustained damage totaling $127.18. Claimant submitted additional bills that the
Court determined to be too remote in time to definitively relate them to the incident in
question.
The position of the respondent is that it did not have actual or constructive notice of the condition on County Route 73 at the site of the claimant's accident for the
date in question.
Frank McGuire, foreman for the respondent in Kanawha County, testified that
he had no knowledge of any holes on County Route 73 near Charleston for the date in
question or the days immediately prior. Mr. McGuire stated that there had been a crew
patching holes along this stretch of road of May 1, 2003. He further testified that he had
no knowledge of anyone working on the road in the days prior to the date of claimant's
incident. Respondent maintains that it had no actual or constructive notice of any holes
on County Route 73.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's vehicle struck and that the hole
presented a hazard to the traveling public. Photographs in evidence depict the hole and
provide the Court an accurate portrayal of the size and location of the hole on County
Route 73. The size of the hole and the time of the year in which claimant's incident
occurred leads the Court to conclude that respondent had notice of this hazardous
condition and respondent had an adequate amount of time to take corrective action.
Thus, the Court finds respondent negligent and claimant may make a recovery for the
damage to her vehicle. However, the Court also finds that claimant was partially
negligent in that she had known about the work that had been going on in the area prior
to the date of her incident and she also saw other vehicles avoiding the hole before her
vehicle struck it. The Court finds that claimant was twenty percent negligent in this
instance.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $101.74.
Award of $101.74.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
CHARLES R. LONG
VS.
DIVISION OF HIGHWAYS
(CC-03-380)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 1982
Honda Goldwing motorcycle struck a hole while he was traveling on W. Va. Route 34
in Teays Valley, Putnam County. W. Va. Route 34 is a road maintained by respondent.
The Court is of the opinion to make an award in this claim for the reasons more fully
stated below.
The incident giving rise to this claim occurred around 9:30 a.m. on July 12,
2003, a clear and dry day. W. Va. Route 34 is a two-lane highway at the area of the
incident involved in this claim. Claimant testified that he was driving on W. Va. Route
34 when he saw the hole. He stated that he had seen the hole previously but had been
able to avoid it on other occasions. Mr. Long testified that he was unable to avoid the
hole because of a vehicle traveling in the opposite lane which had crossed the center
yellow line. He had to maneuver his motorcycle to the side of the highway to avoid the
other vehicle and his motorcycle struck the hole sustaining damage to the front shocks.
Mr. Long stated that the hole was two or three feet long and one and a half to four
inches deep. Claimant's motorcycle sustained damage totaling $194.23.
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 34 at the site of the claimant's accident for the
date in question.
Danny Tucker, Assistant Supervisor for the respondent in Putnam County,
testified that he had no knowledge of any holes on W. Va. Route 34 in the Teays Valley
area for the date in question or the days immediately prior. Mr. Tucker stated that there
were no records of any calls or complaints concerning the condition of the road prior to
claimant's incident. Respondent maintains that it had no actual or constructive notice
of any holes on W. Va. Route 34.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's motorcycle struck and that the hole
presented a hazard to the traveling public. Photographs in evidence depict the hole and
provide the Court an accurate portrayal of the size and location of the hole on W. Va.
Route 34. The size of the hole and the time of the year in which claimant's incident
occurred leads the Court to conclude that respondent had notice of this hazardous
condition and respondent had an adequate amount of time to take corrective action.
Thus, the Court finds respondent negligent and claimant may make a recovery for the
damage to his motorcycle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $194.23.
Award of $194.23.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
MICHAEL E. YOUNG
VS.
DIVISION OF HIGHWAYS
(CC-03-298)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when the 1990
Chevrolet Cavalier that his son was driving struck a hole as he was traveling north on
County Route 44, also known as Bill's Creek Road, Putnam County. County Route 44
is a road maintained by respondent. The Court is of the opinion to deny the claim for
the reasons more fully stated below.
The incident giving rise to this claim occurred around 7:30 a.m. on May 5,
2003, a rainy morning. County Route 44 is a two-lane highway at the area of the
incident involved in this claim. Claimant's son, Dustin Young, testified that he was
driving between fifteen and twenty miles per hour because he had just driven through
a school zone. Mr. Young also stated that it had just stopped raining. Claimant's son
stated that there was a vehicle traveling in the opposite direction which caused him to
drive his vehicle closer to the edge of the road as the road was not very wide through
this section. The vehicle struck a hole in the road that he had not seen. Dustin Young
stated that the hole knocked the vehicle out of balance, then went up a hillside next to
the road and flipped onto the vehicle's top. Claimant's vehicle sustained extensive
damages. Dustin Young also sustained a cut on his arm that required stitches. Claimant
incurred $2,300.00 in damages for the vehicle, towing, and medical expenses for his
son.
The position of the respondent is that it was not negligent in its maintenance
of County Route 44, and even if it was, Dustin Young's negligence was greater than or
equal to its own negligence.
Deputy C.S. Tusing, a road deputy with the Putnam County Sheriff's
Department, testified that he was dispatched to investigate Dustin Young's accident.
He stated that he has investigated around 500 accidents in his time as a deputy. He took
a signed statement from Mr. Young in which Mr. Young stated that he had lost control
of his vehicle, slid into a ditch, and then the vehicle rolled over onto its top. Deputy
Tusing also cited as a contributing circumstance the slippery pavement. He testified that
he did not identify a hole in the road as a contributing circumstance as there was no
indication that claimant's vehicle struck a hole. Deputy Tusing testified that if anyone
had mentioned a hole in the road to him, he would have marked it as a contributing
circumstance in his investigative report. He further testified that based upon his
experiences in investigating accidents, it was unlikely that a vehicle traveling at fifteen
to twenty miles per hour would flip over in the way in which the claimant described.
Deputy Tusing stated that for a vehicle to flip over like the claimant's vehicle did, it
would have had to be going at a greater speed than twenty miles per hour.
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, a 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 instant case, the Court is of the opinion that claimant's son's negligence
was the cause of the accident. Based upon the statement given to the investigating
officer at the scene of the accident and the evidence adduced at trial, the Court is of the
opinion that the respondent was not negligent in its maintenance of County Route 44.
Thus, the claimant may not make a recovery for his loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
MARK DANIEL WEBB and NANCY RANEE WEBB
VS.
DIVISION OF HIGHWAYS
(CC-04-095)
Claimants appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
1987 Cadillac DeVille struck rocks when claimant Mark Webb was traveling westbound
on W. Va. Route 5 in Wirt County. W. Va. Route 5 is a road maintained by respondent.
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 at around 5:40 a.m. on February
3, 2004, a rainy morning. W. Va. Route 5 is a two-lane road that is marked at the
location of the accident as a "falling rock" area, with a speed limit of fifty-five miles per
hour. Claimant Mark Webb was driving westbound on W. Va. Route 5 when rocks
from the hillside adjacent to W. Va. Route 5 fell into his lane of traffic. Mr. Webb
stated that he caught sight of some smaller rocks moving in his lane so he applied the
brakes and attempted to avoid them. His vehicle then struck larger rocks, which were
about three to four feet in diameter, that were laying in the road. Claimants' vehicle
struck the rocks and sustained significant damage to the front of said vehicle totaling
$4,069.29. Claimants' vehicle was totaled as a result of this incident.
The position of the respondent was that it did not have notice of the rocks on
W. Va. Route 5. Respondent admitted that the area in question is a rock fall area and
stated that there are "rock fall" signs located at various locations along W. Va. Route 5
to warn drivers proceeding on the roadway. Jason Nichols, County Administrator for
respondent in Wirt County, testified that this is an area that has rock falls occasionally
and that there are rock fall signs placed along the highway. Mr. Nichols testified that
there was no notice of any rock falls or potential rock falls in this area prior to the
incident involved herein. Respondent maintains that there was no prior notice of any
rocks on W. Va. Route 5 immediately prior to the incident in question.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va. 645,
46 S.E.2d 81 (1947). To hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of the
road defect at issue and a reasonable amount of time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8
(1985). In rock fall claims, this Court has held that the unexplained falling of a rock
onto a highway without a positive showing that respondent knew or should have known
of a dangerous condition posing injury to person or property is insufficient to justify an
award. Coburn v. Dept. of Highways, 16 Ct. Cl. 68 (1985).
In the present claim, claimants have not established that respondent failed to
take adequate measures to protect the safety of the traveling public on W. Va. Route 5
in Wirt County. Respondent has placed "falling rock" warning signs to warn the traveling public of the potential for rock falls at this location. While the Court is
sympathetic to claimants' plight, the fact remains that there is no evidence of negligence
on the 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 this claim.
Claim disallowed.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
ARAMARK FACILITY SERVICES, INC.,
VS.
CONCORD UNIVERSITY
(CC-04-436)
Edward M. Kowal, Jr., Attorney at Law, for claimant.
Jendonnae L. Houdyschell, Senior Assistant Attorney General, for
respondent.
FORDHAM, JUDGE:
Claimant brought this action for wages paid to employees under the terms of
the management contract between Aramark Facility Services, Inc. (hereinafter Aramark)
and Concord University (hereinafter Concord). This matter came before the Court on
a motion to dismiss on behalf of respondent and a motion for summary judgment on
behalf of claimant. The Court is of the opinion to deny respondent's motion to dismiss
and to grant claimant's motion for summary judgment.
The management contract between Aramark and Concord was entered into on
November 22, 1996. Under the terms of the contract, Aramark was to manage and
operate the physical plant, grounds keeping and custodial services at Concord.
According to the terms of the contract, Aramark was responsible for the wages and
salaries of its personnel, but Concord was to reimburse Aramark for those salaries and
benefits associated with all Aramark personnel. The contract was renewed on a yearly
basis until it expired on June 30, 2001.
During the course of the contract, Aramark was requested by Concord to
manage a summer painters program where seasonal workers were hired to paint
dormitory rooms that had been damaged during the school year. This was in addition
to the other responsibilities set out in the contract. These seasonal summer painters were
paid an hourly rate of seven dollars and the lead painter received a wage of eight dollars
an hour. Aramark paid the wages of these seasonal summer painters, and pursuant to
the contract, Concord reimbursed Aramark for these wages.
In 2001, the West Virginia Division of Labor (hereinafter Division of Labor),
received twenty-one "Requests for Assistance" from employees of Aramark based upon
an apparent infringement of the Prevailing Wage Act by Aramark. Nineteen of the
twenty-one complainants were the seasonal summer painters. The other two
complainants were a plumber and an HVAC (heating, ventilation and air conditioning)
maintenance employee. It was initially determined that Aramark had committed no
violations of the Prevailing Wage Act (W. Va. Code §21-5A-3).
However, after the initial finding of the Division of Labor, there was a change
in administration and a new commissioner was appointed to the Division of Labor. The
complaints against Aramark were reopened and another hearing was conducted where it was determined that Aramark owed the twenty-one complainants the amount of
$508,169.66. Said amount was the Division of Labor's calculation of the difference
between the wages paid and the prevailing wage rate. After several hearings before a
Hearing Examiner for the Division of Labor, Aramark was ordered by the Commissioner
of the Division of Labor to pay $508,169.66 to the complainants. It was found that the
failure of Aramark to pay prevailing wages was the result of an honest mistake or error,
as defined by the provisions of W. Va. Code §21-5A-9(b). The Circuit Court of
Kanawha County affirmed the Commissioner's decision and the Supreme Court of
Appeals of West Virginia denied Aramark's petition for appeal.
Aramark issued payment to the Division of Labor in the amount of
$557,037.52, a figure that included post-judgment interest. Aramark filed this claim
before this Court for $557,037.52, based upon its position that Concord has a duty to
reimburse it for this amount in accordance with the terms of the contract.
The position of the respondent is that it is not responsible for the monies
Aramark paid per the order of Division of Labor. Respondent asserts these monies
were penalties Aramark had to pay to the Division of Labor for violations of the
Prevailing Wage Act and, therefore, respondent should not be held liable for these
amounts.
Respondent contends that the findings of the Division of Labor were, in fact,
penalties assessed against Aramark for failing to follow the Prevailing Wage Act.
Respondent argues that since the failure to pay prevailing wages was due to an honest
mistake or error, as defined by W. Va. Code §21-5A-9(b), the workers therefore had no
basis to recover the difference in wages under that section, and, therefore, this was an
administrative remedy and the equivalent of a fine or penalty. While respondent was
responsible for reimbursement of wages for employees of Aramark, it was not
responsible for reimbursement for penalties received by Aramark for failure to follow
all the applicable laws, including the Prevailing Wage Act. Thus, respondent maintains
it is not responsible for the reimbursement of Aramark for any penalties it incurred.
A Motion for Summary Judgment is made and considered by a court where
there is no genuine issue of material fact. The Court herein is of the opinion that in this
claim there is no genuine issue of material fact and claimant's Motion will be
determined by the Court at this time.
The Court is of the opinion that the monies paid pursuant to the order of the
Division of Labor were not in the form of a penalty assessed against Aramark. The
order of the Commissioner of the Division of Labor stated quite clearly that the failure
of Aramark to pay prevailing wages was the result of an honest mistake or error, as
defined by the provisions of W. Va. Code §21-5A-9(b). Further, the order stated that
because it was an honest mistake or error, no penalty under the provision of the same
code sections would be imposed.
The Court, in determining that the monies paid by Aramark to the employees
did not constitute a penalty against Aramark, is of the opinion that there is a moral
obligation on the part of Concord to reimburse Aramark for the amounts assessed as
wages paid to the employees who performed services requested by Concord. The hiring
of these summer employees was done for the convenience of Concord because Aramark
had much more flexibility in the hiring of these employees. Further, these employees
were hired by Aramark at the request of Concord by and through the contract. It is
undisputed that neither Concord nor Aramark contemplated that the hiring of these
particular employees (most of whom were students) pursuant to the contract would be
subject to the provisions of the Prevailing Wage Act. As such, and in light of the
Court's opinion that the monies paid did not constitute a penalty assessed against Aramark, the Court finds that it would be a gross miscarriage of justice to hold Aramark
responsible for these monies paid in accordance with an order of the Division of Labor.
Further, the Court is of the opinion that the principles of equity and good conscience are
applicable in this claim; therefore, the Court denies respondent's motion to dismiss and
grants claimant's motion for summary judgment.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in the
amount of $557,037.52.
Award of $557,037.52.
The Honorable David M. Baker took part in the hearing and decision of this
matter.
The Honorable Robert B. Sayre took no part in the hearing of or decision of
this matter, having recused himself.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
DAVIN W. GEORGE
VS.
DIVISION OF HIGHWAYS
(CC-04-562)
Claimant appeared pro se.Andrew F. Tarr, Attorney at Law, for
respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 2001
Kia Rio sedan struck a muffler as he was traveling south on W. Va. Route 14, Wood
County. W. Va. Route 14 is a road maintained by respondent. The Court is of the
opinion to deny the claim for the reasons more fully stated below.
The incident giving rise to this claim occurred around 3:00 a.m. on August 30,
2004, a slightly foggy morning. W. Va. Route 14 is a three-lane highway at the area of
the incident involved in this claim. Mr. George testified that he was driving in the
middle lane of the highway when his vehicle hit a large muffler that he had not seen in
the road. Claimant's vehicle sustained damage to the front left tire. The damage
sustained totaled $150.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 14 at the site of the claimant's accident for the
date in question.
Ron Galland, Assistant County Supervisor for the respondent in Wood County,
testified that he had no knowledge of any debris in the roadway on W. Va. Route 14 on
the date of claimant's incident. Mr. Galland stated that there had been no notice of
debris in the road along this portion of W. Va. Route 14 on the day of the incident in
question.
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, a 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 instant case, the evidence established that the respondent did not have
actual or constructive notice of debris on W. Va. Route 14 prior to the incident in
question. Consequently, there is insufficient evidence of negligence upon which to
justify an award. Thus, the claimant may not make a recovery for his loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
NIXON D. NELSON
VS.
DIVISION OF HIGHWAYS
(CC-04-034)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On December 29, 2003, claimant was traveling on Jerico Road near Point
Pleasant, Mason County, when his vehicle struck a broken edge in the road, damaging
a rim.
2. Respondent was responsible for the maintenance of Jerico Road, which it
failed to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $204.93.
4. Respondent agrees that the amount of $204.93 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Jerico Road on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained to
claimant's vehicle; and that the amount of the damages agreed to by the parties is fair
and reasonable. Thus, claimant may make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $204.93.
Award of $204.93.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
RALPH E. GIVENS and PHYLLIS J. GIVENS
VS.
DIVISION OF HIGHWAYS
(CC-04-505)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
1998 Toyota Camry struck a hole while claimant Ralph E. Givens was traveling on W.
Va. Route 31, in Wood County. W. Va. Route 31 is a road maintained by respondent.
The Court is of the opinion to make an award in this claim for the reasons more fully
stated below.
The incident giving rise to this claim occurred on July 24, 2004. W. Va. Route
31 is a two-lane highway at the area of the incident involved in this claim. Claimant
Ralph Givens testified that he was traveling along W. Va. Route 31 through a sharp turn
in the road. He stated that there was a truck crowding the center yellow line in the turn
so he had to maneuver his vehicle closer to the edge of the road. The vehicle then hit
a hole along the berm of the road that Mr. Givens had not seen. Mr. Givens testified that
the hole was about one to two feet wide, one foot long, and ten to twelve inches deep
and was located alongside the white line on the road. Claimants' vehicle struck the hole
sustaining damage to a tire and rim totaling $428.59. Claimants' insurance deductible
was $250.00; therefore, claimants are limited to a recovery in that amount.
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 31 at the site of the claimant's accident for the
date in question. Ron Galland, an Assistant County Supervisor for the respondent in
Wood County, testified that he had no knowledge of any holes on W. Va. Route 31 for
the date of claimant's incident. Respondent maintains that it had no actual or
constructive notice of any holes on W. Va. Route 31.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimants' vehicle struck and that the hole
presented a hazard to the traveling public. The size of the hole and the time of the year
in which claimants' incident occurred leads the Court to conclude that respondent had
notice of this hazardous condition and respondent had an adequate amount of time to
take corrective action. Thus, the Court finds respondent negligent and claimants may
make a recovery for the damage to their vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimants in this
claim in the amount of $250.00.
Award of $250.00.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
K. ROBERT BUCHANAN and CRYSTLE L. BUCHANAN
VS.
DIVISION OF HIGHWAYS
(CC-04-180)
Claimants appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
1996 Jeep Cherokee struck ice while claimant Crystle Buchanan was traveling on
County Route 7/1 in Wood County. County Route 7/1 is a road maintained by
respondent in Wood County. The Court is of the opinion to deny the claim for the
reasons more fully stated below.
The incident giving rise to this claim occurred around 5:55 p.m. on February
1, 2004, a cold evening. County Route 7/1 is a one-lane road at the area of the incident
involved in this claim. Claimant Crystle Buchanan testified that she was driving around
ten to fifteen miles per hour when her vehicle struck a patch of ice that had formed
adjacent to a driveway which connects to the road. She stated that the driveway was on
a steep hill and water drains off this driveway onto the road. Mrs. Buchanan stated that
there had been snow and icy conditions on the road during the previous two weeks. She
testified that the ice was about six to eight inches thick. Claimants' vehicle struck a hole
in the patch of ice, whereupon Crystle Buchanan lost control of the vehicle which
swerved, went over an embankment and flipped over before coming to a stop. The
vehicle was totaled in the accident. Both Mrs. Buchanan and her son, who was a
passenger in the vehicle, were taken to the hospital. Mr. and Mrs. Buchanan testified
that they had called respondent on several occasions about the icy conditions on the road
prior to the incident. Claimants' testified that their vehicle was valued at $6,820.00.
The position of the respondent is that its employees were involved in snow and
ice removal on the high priority roads in Wood County for the date in question.
Ron Galland, Assistant Supervisor for the respondent in Wood County, testified
that at the time of claimants' incident crews for respondent were involved in snow and
ice removal. Mr. Galland stated that County Route 7/1 is part tar and chip and part
gravel road that is low priority in terms of maintenance. He testified that due to its low
priority, it would be one of the last roads to be worked on during snow and ice removal
periods. Mr. Galland further stated that at the time of claimants' incident there was a
lot of snow throughout the area and the crews had to perform snow and ice removal on
the main routes until they were clean.
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, a 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 instant case, the evidence established that the respondent was involved
in snow and ice removal throughout Wood County on the date of claimants' incident.
Consequently, there is insufficient evidence of negligence upon which to justify an
award. The Court is well aware that during periods of snow and ice respondent directs
its attention to the primary routes. It is not able to address all county routes but attempts
to maintain all road hazards when it receives notice from the public. While respondent
did receive notice from the claimant of the conditions on County Route 7/1, there was
evidence that there had been snowy and icy conditions for two weeks prior to the
incident. The Court will not impose an impossible duty upon respondent during periods
when its crews must be attending to the maintenance of ice and snow on the State's
highways. Therefore, the Court has determined that claimants may not make a recovery for their loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
DEE L. MOONEY
VS.
DIVISION OF HIGHWAYS
(CC-04-858)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On September 26, 2004, claimant was traveling on W. Va. Route 119 near
Spencer, Roane County, when her vehicle struck two broken sign posts along the road
damaging two tires.
2. Respondent was responsible for the maintenance of W. Va. Route 119 which
it failed to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $389.56, however, claimant's insurance coverage provides for $100.00
deductible feature for collision and claimant is limited to a recovery in that amount..
4. Respondent agrees that the amount of $100.00 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of W. Va. Route 119 on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained to
claimant's vehicle; and that the amount of the damages agreed to by the parties is fair
and reasonable. Thus, claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $100.00.
Award of $100.00.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
MONONGALIA GENERAL HOSPITAL
VS.
DIVISION OF CORRECTIONS
(CC-05-214)
Claimant appeared pro se.
Charles P. Houdyschell Jr., Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks payment in the amount of $17,967.10 for medical services
rendered to an inmate in the custody of respondent at Huttonsville Correctional Center,
a facility of the respondent. Respondent, in its Answer, admits the validity of the claim
and further states that there were insufficient funds in its appropriation for the fiscal year
in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et al. vs. Dept. of
Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
BARBOUR COUNTY COMMISSION
VS.
DIVISION OF CORRECTIONS
(CC-05-137)
Claimant appeared pro se.
Charles P. Houdyschell Jr., Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant, Barbour County Commission, is responsible for the incarceration of
prisoners who have committed crimes in Barbour County, but have been sentenced to
facilities owned and maintained by respondent, Division of Corrections. Claimant
brought this action to recover $48,350.00 in costs for providing housing to a prisoner
who was sentenced to a State penal institution, but due to circumstances beyond the
control of the county, the prisoner had to remain in the custody of the county for periods
of time beyond the date of the commitment order.
The Court previously determined in County Comm'n. of Mineral County vs.
Div. of Corrections, 18 Ct. Cl. 88 (1990), that respondent is liable to claimant for the
cost of housing and providing medical care to inmates sentenced to a State penal
institution.
Pursuant to the holding in Mineral County, respondent reviewed this claim to
determine the invoices for the services for which it may be liable. Respondent then filed
an Answer admitting the validity of the claim in the amount of $21,750.00. Claimant
agrees that this is the correct amount to which it is entitled.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $21,750.00.
Award of $21,750.00.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
TYGART VALLEY TOTAL CARE CLINIC
VS.
DIVISION OF CORRECTIONS
(CC-05-181)
Claimant appeared pro se.
Charles Houdyschell Jr., Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks payment in the amount of $3,069.03 for medical services
rendered to inmates in the custody of respondent at Pruntytown Correctional Center, a
facility of the respondent. Respondent, in its Answer, admits the validity of the claim,
and further states that there were insufficient funds in its appropriation for the fiscal year
in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et al. vs. Dept. of
Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
RALPH BLANKENSHIP
VS.
REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY
(CC-05-275)
Claimant appeared pro se.
Ronald R. Brown, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks $873.95 for items of personal property that were entrusted to
respondent's employees when he was taken to Southwestern Regional Jail, a facility of
the respondent.
In its Answer, respondent admits the validity of the claim and that the amount
is fair and reasonable. The Court is aware that respondent does not have a fiscal method
for paying claims of this nature; therefore, the claim has been submitted to this Court for
determination.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $873.95.
Award of $873.95.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
WEST VIRGINIA TRUCK & TRAILER, INC.
VS.
DIVISION OF LABOR
(CC-05-268)
Claimant appeared pro se.
Ronald R. Brown, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks $2,424.17 for providing maintenance for a vehicle owned by
a facility of respondent in Kanawha County. The documentation for these services was
not processed for payment within the appropriate fiscal year; therefore, claimant has not
been paid. In its Answer, respondent admits the validity of the claim as well as the
amount, and states that there were sufficient funds expired in the appropriate fiscal year
from which the invoice could have been paid.
Accordingly, the Court makes an award to claimant in the amount of $2,424.17.
Award of $2,424.17.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
ROBERT P. LANHAM
VS.
DIVISION OF HIGHWAYS
(CC-05-103)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 1994
Ford F-250 struck a hole as he was traveling east on County Route 74/9, also known as
Buck Run Road, in Ritchie County. County Route 74/9 is a road maintained by
respondent. The Court is of the opinion to deny the claim for the reasons more fully
stated below.
The incident giving rise to this claim occurred around 11:00 p.m. on February
27, 2005. County Route 74/9 is a one-lane road at the area of the incident involved in
this claim. Claimant testified that he was driving around 10 miles per hour when he
drove across a bridge. Mr. Lanham was crossing the bridge when his vehicle struck a
hole. Claimant's vehicle sustained damage to the left rear tire totaling $110.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on County Route 74/9 at the site of the claimant's accident for
the date in question.
Harry Griffith, Highway Administrator for the respondent in Ritchie County,
testified that he had no knowledge of any potholes on County Route 74/9 prior to the
date of claimant's incident. Mr. Griffith stated that County Route 74/9 is a low priority,
tar and chip road. Respondent had received no notice of holes in the road along this portion of County Route 74/9 on the day of the incident in question..
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, a 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 instant case, the evidence established that the respondent did not have
actual or constructive notice of a hole on County Route 74/9 prior to the incident in
question. Consequently, there is insufficient evidence of negligence upon which to
justify an award. Thus, the claimant may not make a recovery for his loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED SEPTEMBER 6, 2005
CARYL L. STINES
VS.
DIVISION OF HIGHWAYS
(CC-05-062)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 2002
Ford Taurus, driven by her daughter, struck a landslide as her daughter was traveling
west on W. Va. Route 95 in Wood County. W. Va. Route 95 is a road maintained by
respondent. The Court is of the opinion to deny the claim for the reasons more fully
stated below.
The incident giving rise to this claim occurred around 11:00 p.m. on January
5, 2005, a rainy evening. W. Va. Route 95 is a two-lane highway at the area of the
incident involved in this claim. Claimant's daughter, Amy Stines, testified that she was
driving through a curve in the road when she came upon a landslide in the road. Ms.
Stines attempted to stop her vehicle, but due to the water on the road, hydroplaned into
the debris that covered the road. She stated that the landslide of rock and other debris
was still occurring after her vehicle came to a stop in the debris. Claimant's vehicle
sustained damage to both front tires and significant body damage totaling $2,729.47.
Claimant's vehicle also had to be towed from the scene and then later towed to a garage.
The towing bills totaled $140.00. Claimant's insurance deductible was $500.00, and did
not cover towing.
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 95 at the site of the claimant's accident for the
date in question.
Curtis Richards, Working Crew Leader for the respondent in Wood County,
testified that he had no knowledge of the landslide on W. Va. Route 95. Mr. Richards
stated that in his eight years of employment with respondent in Wood County he had never seen a landslide or a rock fall in the area of claimant's incident. Respondent had
received no notice of a landslide in the road along this portion of W. Va. Route 95 prior
to the incident in question.
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, a 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 rock fall claims, this Court has held that the
unexplained falling of a rock onto a highway without a positive showing that respondent
knew or should have known of a dangerous condition posing injury to person or
property is insufficient to justify an award. Coburn v. Dept. of Highways, 16 Ct. Cl. 68
(1985).
In the instant case, claimant has not established that respondent failed to take
adequate measures to protect the safety of the traveling public on W. Va. Route 95 in
Wood County. Evidence adduced at trial established that there had not been any rock
falls or landslides along this stretch of W. Va. Route 95 prior to the claimant's incident.
While the Court is sympathetic to claimant's plight, the fact remains that there is no
evidence of negligence on the 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 this claim..
Claim disallowed.
__________________
OPINION ISSUED NOVEMBER 3, 2005
CONNIE ROESE
VS.
DIVISION OF HIGHWAYS
(CC-04-064)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On January 17, 2004, claimant was traveling on W.Va. Route 2 near Point
Pleasant, Mason County, when her vehicle struck a hole in the road, damaging two rims.
2. Respondent was responsible for the maintenance of Route 2 which it failed
to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $450.00.
4. Respondent agrees that the amount of $450.00 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of W.Va. Route 2 on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained to
claimant's vehicle; and that the amount of the damages agreed to by the parties is fair and reasonable. Thus, claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $450.00.
Award of $450.00.
__________________
OPINION ISSUED NOVEMBER 3, 2005
TIFFANY MOORE
VS.
DIVISION OF HIGHWAYS
(CC-04-098)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On February 19, 2004, claimant was traveling on I-79 near Elkview,
Kanawha County, when her vehicle struck a piece of expansion joint protruding from
the highway, damaging both front and rear left side tires.
2. Respondent was responsible for the maintenance of I-79 which it failed to
maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $118.72.
4. Respondent agrees that the amount of $118.72 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of I-79 on the date of this incident; that the negligence of
respondent was the proximate cause of the damages sustained to claimant's vehicle; and
that the amount of the damages agreed to by the parties is fair and reasonable. Thus,
claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $118.72.
Award of $118.72.
__________________
OPINION ISSUED NOVEMBER 3, 2005
ROBERT D. SHIRK
VS.
DIVISION OF HIGHWAYS
(CC-04-159)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 1995
Dodge Neon struck a broken section of road while he was traveling on County Route
8, also known as Durgon Road, in Grant County. County Route 8 is a road maintained
by respondent. The Court is of the opinion to make an award in this claim for the
reasons more fully stated below.
The incident giving rise to this claim occurred around 9:30 p.m. on February
16, 2004. County Route 8 is a two-lane highway at the area of the incident involved in
this claim. Claimant testified that he was driving on County Route 8 when his vehicle
struck a section of road that was broken up all the way across the road. Mr. Shirk stated
that there were large chunks of asphalt laying throughout the road. He testified that his
vehicle struck the broken section of road and chunks of asphalt, damaging the
transmission pan and oil filter. Claimant's vehicle sustained damage totaling $2,194.98.
The position of the respondent is that it did not have actual or constructive
notice of the condition on County Route 8 at the site of the claimant's accident for the
date in question.
Zyndall Thorne, a County Crew Leader for the respondent in Grant County,
testified that he had no knowledge of a section of broken road on County Route 8 for the
date in question. Mr. Thorne stated that there were no records of any complaints
concerning the condition of the road prior to claimant's incident. He stated that
respondent's crews went to the site and put up warning signs and removed asphalt
chunks from the roadway after the incident. Mr. Thorne testified that this condition was
the result of a base failure that occurred due to the winter weather. He also testified that
the road has a history of being in pretty bad shape. He stated that the failure occurred
along a stretch of road approximately fourteen feet wide and twenty five feet long.
Respondent maintains that it had no actual or constructive notice of any holes on County
Route 8.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the broken section of road which claimant's vehicle struck and
that it presented a hazard to the traveling public. Photographs in evidence depict the
section of road and provide the Court an accurate portrayal of the size and location of
the broken pavement on County Route 8. The size of the broken section of road leads
the Court to conclude that respondent had notice of this hazardous condition and
respondent had an adequate amount of time to take corrective action. Thus, the Court
finds respondent negligent and claimant may make a recovery for the damage to his
vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $2,194.98.
Award of $2,194.98.
__________________
OPINION ISSUED NOVEMBER 3, 2005
JOSHUA JAMES COOK
VS.
DIVISION OF HIGHWAYS
(CC-04-185)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 2003
Acura CL-S Cruiser struck a hole while he was traveling southbound on U.S. Route 250
near Fairmont, Marion County. U.S. Route 250 is a road maintained by respondent.
The Court is of the opinion to make an award in this claim for the reasons more fully
stated below.
The incident giving rise to this claim occurred between 4:30 p.m. and 5:00 p.m.
on March 20, 2004. U.S. Route 250 is a two-lane highway at the area of the incident
involved in this claim. Claimant testified that he was driving around forty miles per
hour when he noticed a hole in the road. Mr. Cook stated that there was traffic traveling
in the opposite direction. He was unable to avoid the hole because of the traffic. Mr.
Cook testified that the hole was one foot wide, three to four feet long, and four to five
inches deep. He further stated that he was aware that U.S. Route 250 was a pretty rough
road. Claimant's vehicle struck the hole sustaining damage to two rims totaling
$672.97.
The position of the respondent is that it did not have actual or constructive
notice of the condition on U.S. Route 250 at the site of the claimant's accident for the
date in question.
Don Steorts, County Administrator for the respondent in Marion County,
testified that he had no knowledge of any holes on U.S. Route 250 for the date in
question. Mr. Steorts stated that there were no records of either complaints concerning
the condition of the road or any maintenance done on this stretch of road prior to or after
claimant's accident. He further stated that this section of road was one where there had
been problems with holes. Respondent maintains that it had no actual or constructive
notice of any holes on U.S. Route 250.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's vehicle struck and that the hole
presented a hazard to the traveling public. Photographs in evidence depict the hole and
provide the Court an accurate portrayal of the size and location of the hole on U.S.
Route 250. The size of the hole leads the Court to conclude that respondent had
constructive notice of this hazardous condition and respondent had an adequate amount
of time to take corrective action. Thus, the Court finds respondent negligent and
claimant may make a recovery for the damage to his vehicle. However, the Court
further finds that claimant was driving at a speed that was too fast for the conditions and
that claimant was aware of the conditions on the road. The Court finds that the claimant was also negligent, and thus may only recover for 60% of his damages.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $403.78.
Award of $403.78.
__________________
OPINION ISSUED NOVEMBER 3, 2005
KENNETH W. DODDRILL
VS.
DIVISION OF HIGHWAYS
(CC-04-197)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On April 6, 2004, claimant was traveling on W.Va. Route 60 on the
Amandaville Bridge in Saint Albans, Kanawha County, when his vehicle struck a hole
in the road, damaging a tire and rim.
2. Respondent was responsible for the maintenance of Route 60 and the
Amandaville Bridge which it failed to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $737.05. Claimant's insurance deductible was $500.00.
4. Respondent agrees that the amount of $500.00 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Route 60 on the Amandaville Bridge on the date of this
incident; that the negligence of respondent was the proximate cause of the damages
sustained to claimant's vehicle; and that the amount of the damages agreed to by the
parties is fair and reasonable. Thus, claimant may make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED NOVEMBER 3, 2005
DAVID R. CARTER
VS.
DIVISION OF HIGHWAYS
(CC-04-545)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 2002
Yamaha Star Warrior motorcycle struck a hole while he was traveling southbound on
W. Va. Route 310 in Taylor County. W. Va. Route 310 is a road maintained by
respondent. The Court is of the opinion to make an award in this claim for the reasons
more fully stated below.
The incident giving rise to this claim occurred between 10:00 a.m. and 12:00
p.m. on May 2, 2004, a sunny and clear day. W. Va. Route 310 is a two-lane highway
at the area of the incident involved in this claim. Claimant testified that he was driving
on W. Va. Route 310 when he drove up a hill and noticed holes all over the road. Mr.
Carter testified that he was traveling between fifty-five and sixty miles per hour when
his vehicle struck a large hole in the middle of the road, sustaining damage to the rear
tire and rim totaling $513.90. Claimant's insurance deductible was $500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 310 at the site of the claimant's accident for the
date in question.
At the request of this Court, respondent submitted an affidavit from John Corio,
Assistant County Administrator for the respondent in Taylor County. Mr. Corio stated
that W. Va. Route 310 is a feeder road that is classified as high priority and inspected
by employees of respondent on a regular basis. He further stated that there were no
records of either complaints concerning the condition of the road or any maintenance
done on this stretch of road for two weeks prior to claimant's incident and two weeks
after. Respondent maintains that it had no actual or constructive notice of any holes
on W. Va. Route 310.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's vehicle struck and that the hole
presented a hazard to the traveling public. The location of the hole and the time of the
year in which claimant's incident occurred leads the Court to conclude that respondent
had notice of this hazardous condition and respondent had an adequate amount of time
to take corrective action. Thus, the Court finds respondent negligent and claimant may
make a recovery for the damage to his vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED NOVEMBER 3, 2005
SHANNON G. MASTERS
VS.
DIVISION OF HIGHWAYS
(CC-05-116)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 2004
Mitsubishi Endeavor struck a hole while she was traveling on County Route 51/1 in
Gerrardstown, Berkeley County. County Route 51/1 is a road maintained by
respondent. The Court is of the opinion to make an award in this claim for the reasons
more fully stated below.
The incident giving rise to this claim occurred at approximately 3:30 p.m. on
February 13, 2005, a clear and dry day. County Route 51/1 is a two-lane highway at the
area of the incident involved in this claim. Claimant testified that she was driving on
County Route 51/1 when she saw the hole. She stated that she was not sure if she had
seen the hole on previous occasions. Ms. Masters was unable to avoid the hole because
of a vehicle traveling towards her vehicle and she could not stop in time to avoid it.
Claimant's vehicle struck the hole sustaining damage to the right front tire. Ms. Masters
stated that the hole was four to six inches deep. Claimant's vehicle sustained damage
totaling $101.67.
The position of the respondent is that it did not have actual or constructive
notice of the condition on County Route 51/1 at the site of the claimant's accident for
the date in question.
Mark Baker, an assistant supervisor for the respondent in Berkeley County,
testified that he had no knowledge of any holes on County Route 51/1 in Gerrardstown
for the date in question. Mr. Baker stated that the road had a lot of residential traffic
along with a lot of tractor-trailers. He stated that it looked like water had seeped under
the road at the area of claimant's incident. Mr. Baker testified that when this happened
the road could deteriorate quickly with trucks frequently traveling over the road.
Respondent maintains that it had no actual or constructive notice of any holes on County
Route 51/1.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's vehicle struck and that the hole
presented a hazard to the traveling public. The size of the hole and the heavy amount
of traffic on the road leads the Court to conclude that respondent had notice of this
hazardous condition and respondent had an adequate amount of time to take corrective
action. Thus, the Court finds respondent negligent and claimant may make a recovery
for the damage to her vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $101.67.
Award of $101.67.
__________________
OPINION ISSUED DECEMBER 1, 2005
MELISSA A. RICHMOND
VS.
DIVISION OF HIGHWAYS
(CC-03-375)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 2000
Mitsubishi Eclipse GT struck a hole while she was traveling on County Route 22 in
Berkeley County. County Route 22 is a road maintained by respondent. The Court is
of the opinion to make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred at 6:18 a.m. on June 25, 2003,
a clear and dry morning. County Route 22 is a two-lane unmarked highway at the area
of the incident involved in this claim. Claimant testified that she was driving on County
Route 22 when she saw the hole. She stated that she had seen the hole previously but
had been able to avoid it on other occasions. Ms. Richmond stated that the hole was
about twelve to fourteen inches deep and about three to four feet wide. Claimant's
vehicle struck the hole sustaining damage to the right front rim and tire. Claimant's
vehicle sustained damage totaling $239.88.
The position of the respondent is that it did not have actual or constructive
notice of the condition on County Route 22 at the site of the claimant's accident for the
date in question.
Mark Baker, an Assistant Supervisor for the respondent in Berkeley County,
testified that he had no knowledge of any particular holes on County Route 22 for the
date in question. Mr. Baker testified that there were no records of complaints
concerning the condition of the road, but that County Route 22 had been scheduled for
maintenance for approximately three weeks prior to the incident due to the condition of
the road. He stated that the road was experiencing an increase in truck traffic due to
home construction along the road and that the condition of the road was an ongoing
problem. Respondent maintains that it had no actual or constructive notice of any holes
on County Route 22.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive, if not actual, notice of the hole which claimant's vehicle struck and that the
hole presented a hazard to the traveling public. The size of the hole and the time of the
year in which claimant's incident occurred leads the Court to conclude that respondent
had notice of this hazardous condition and respondent had an adequate amount of time
to take corrective action. Thus, the Court finds respondent negligent and claimant may
make a recovery for the damage to her vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $239.88.
Award of $239.88.
__________________
OPINION ISSUED DECEMBER 1, 2005
MICHELLE L. HARRINGTON
VS.
DIVISION OF HIGHWAYS
(CC-03-536)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her1997
Geo Metro struck an exposed rail at a railroad crossing while she was traveling on
County Route 1 near Green Spring, Hampshire County. County Route 1 is a road
maintained by respondent. The Court is of the opinion to make an award in this claim
for the reasons more fully stated below.
The incident giving rise to this claim occurred around 8:15 p.m. on October 18,
2003, a clear evening. County Route 1 is a two-lane highway with a railroad crossing
at the area of the incident involved in this claim. Claimant testified that she was driving
south on County Route 1 at approximately thirty to thirty-five miles per hour with
another vehicle coming towards her in the opposite direction. She stated that as she
drove her vehicle over the railroad tracks her right front tire caught on an exposed rail
along the edge of the highway. Ms. Harrington testified that her tire was caught on the
rail and the vehicle slid along the railroad tracks approximately 200 feet. Claimant's
vehicle sustained damage to the frame and right front wheel totaling $77.60.
Larry West, the claimant's step-father, testified that he helped tow Ms.
Harrington's vehicle off the railroad tracks after the incident. Mr. West stated that a
few weeks prior to the incident, he witnessed Division of Highways crews patching the
railroad crossing which had recently been repaired by the railroad company. He testified
that there was a section of rail left exposed along the highway due to how the
intersection of the road and the railroad was paved.
The position of the respondent is that the railroad company was responsible for
the maintenance of the railroad crossing on County Route 1 at the site of the claimant's
accident for the date in question.
Paul Timbrook, a Foreman for the respondent in Hampshire County, testified
it is the responsibility of the railroad company to maintain the railroad crossings. He
stated that respondent is responsible for the road leading up to the railroad, but that the
railroad company is responsible for the intersection itself. Mr. Timbrook further stated
that from time to time respondent would assist in the maintenance of the railroad
crossings. He testified that crews of respondent had helped with the paving of the
intersection along County Route 1. Mr. Timbrook stated that equipment owned by
respondent had been used to do the paving and that employees of respondent had been
operating the equipment. Respondent maintains that the railroad company was
responsible for the maintenance of the railroad crossing on County Route 1.
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, a 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 instant case, the Court is of the opinion that respondent is responsible for
the work that it completed at the railroad crossing on County Route 1; that it had at least
constructive notice of the exposed rail which claimant's vehicle struck; and, further, that
the exposed rail presented a hazard to the traveling public. Photographs in evidence
depict the exposed rail and provide the Court an accurate portrayal of the railroad
crossing on County Route 1. While a railroad company is typically responsible for the
maintenance of railroad crossings, respondent took part in the repaving of this crossing
after it was repaired by the railroad company. In doing so, respondent assumed
responsibility and liability for the repairs. Thus, the Court finds respondent negligent
and claimant may make a recovery for the damage to her vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $77.60.
Award of $77.60.
__________________
OPINION ISSUED DECEMBER 1, 2005
ROCKY L. MARTIN
VS.
DIVISION OF HIGHWAYS
(CC-04-028)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 1994
Chevrolet Silverado struck a broken stretch of road while he was traveling on Route 21
in Fayette County. Route 21 is a road maintained by respondent. The Court is of the
opinion to make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on the morning of January 14,
2004, a cold and clear morning. Route 21 is a two-lane highway at the area of the
incident involved in this claim. Claimant testified that he was driving on Route 21 when
he drove around a curve and noticed that the road dropped down about three or four
inches. He stated that the drop off went all the way across the road and that there was
no way to avoid it. Mr. Martin testified that he had been driving at approximately thirty
miles per hour due to the rough condition of the road when his vehicle hit the drop off.
Claimant's vehicle struck the drop off sustaining damage to the right rear tire and shock.
Claimant's vehicle sustained damage totaling $101.22.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 21 at the site of the claimant's accident for the date in
question.
Jerry Keffer, a Crew Leader for the respondent in Fayette County, testified that
Route 21 had been sliding in this area for about two months prior to claimant's incident.
Mr. Keffer stated that on December 1, 2003, crews for respondent had used 60 tons of
hot mix to try to fix the problem on Route 21. He stated that there is a creek that runs near the road in that area and that the road is sliding into the creek. Mr. Keffer further
stated that signs were placed along the road warning of a dip and rough road.
Respondent maintains that it had no actual or constructive notice of any holes on Route
21.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the slide in the road which claimant's vehicle struck and that the
slide presented a hazard to the traveling public. Photographs in evidence depict the slide
and provide the Court an accurate portrayal of the size and location of the problem area
on Route 21. The size of the slide leads the Court to conclude that respondent had
notice of this hazardous condition and respondent had an adequate amount of time to
take corrective action. Thus, the Court finds respondent negligent and claimant may
make a recovery for the damage to his vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $101.22.
Award of $101.22.
__________________
OPINION ISSUED DECEMBER 1, 2005
LAURA CALLAHAN
VS.
DIVISION OF HIGHWAYS
(CC-04-044)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 1988
Toyota Truck struck a section of road that had slid while her husband, Tommy Callahan,
was traveling on County Route 7, also known as Buffalo Creek Road, in Wayne County.
County Route 7 is a road maintained by respondent. The Court is of the opinion to make
an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred between 5:30 p.m. and 6:00 p.m.
on January 4, 2004, a day where there had been some rain. County Route 7 is a two-
lane highway at the area of the incident involved in this claim. Mr. Callahan testified
that he was driving on County Route 7 when he noticed a sign that read "one-lane"
ahead. He stated that he was driving at about fifteen miles per hour. Mr. Callahan
drove his vehicle up a slight hill and around a curve when he realized that the road had
subsided significantly on his left hand side. He stated that he applied his brakes but was
unable to stop in time. His vehicle's front driver's side tire went over the edge of road
and he was forced to leave his vehicle. Mr. Callahan's vehicle then went over the side of the road and struck a tree. Claimant's vehicle sustained damages estimated between
$1,578.91 and $1,631.01. Mr. Callahan stated that he sold the vehicle for salvage for
$200.00. He further stated that he had traded a 1989 Jeep Wagoneer for which he had
paid $1,200.00 in exchange for the 1988 Toyota Truck. Claimant also incurred a
$100.00 towing bill due to this accident.
The position of the respondent is that it had placed warning signs on County
Route 7 at the site of the claimant's accident prior to the date in question.
Colen Cox, a General Foreman for the respondent in Wayne County, testified
that there had been a lot of rain and flooding throughout Wayne County in the months
shortly before claimant's accident. Mr. Cox stated that the slip on County Route 7
started in December 2003. He stated that "one-lane" road signs were placed in this area
along with paddles that indicated the problem with the roadway. Mr. Cox further stated
that when the warning signs were placed at the scene in December 2003 there was one
lane that was safe for the traveling public, but that over the course of a month the road
may have slipped more causing it to be unpassable. Respondent maintains that it had
placed warning signs at the area of the slip on County Route 7 a month prior to
claimant's accident.
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, a 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 instant case, the Court is of the opinion that respondent had actual notice
of the slide in the road which claimant's vehicle struck and that the slide presented a
hazard to the traveling public. Photographs in evidence depict the slide and provide the
Court an accurate portrayal of the size and location of the problem area on County Route
7. The size of the slide leads the Court to conclude that respondent had notice of this
hazardous condition and respondent had an adequate amount of time to take corrective
action. While respondent did place warning signs at the site, the Court is of the opinion
that there was not enough done to protect the traveling public from the dangerous
condition of the road. Thus, the Court finds respondent negligent and claimant may
make a recovery for the damage to her vehicle. Further, the evidence established that
claimant's husband traded a vehicle for which he paid $1,200.00 to acquire the vehicle
that was damaged in this incident. Claimant received $200.00 for the salvage value of
the vehicle, and the Court concludes that the vehicle had depreciated in value by
$200.00 at the time of the claimant's accident. Therefore, claimant may only recover
$800.00 for the vehicle along with the $100.00 she paid to have her vehicle towed.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $900.00.
Award of $900.00.
__________________
OPINION ISSUED DECEMBER 1, 2005
TOM DADDYSMAN
VS.
DIVISION OF HIGHWAYS
(CC-04-055)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On January 10, 2004, claimant was traveling on Route 33 near Teays Valley,
Putnam County, when his vehicle struck a hole in the road, damaging a tire and a rim.
2. Respondent was responsible for the maintenance of Route 33, which it failed
to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $613.39. Claimant's insurance deductible was $250.00.
4. Respondent agrees that the amount of $250.00 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Route 33 on the date of this incident; that the negligence
of respondent was the proximate cause of the damages sustained to claimant's vehicle;
and that the amount of the damages agreed to by the parties is fair and reasonable. Thus,
claimant may make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $250.00.
Award of $250.00.
__________________
OPINION ISSUED DECEMBER 1, 2005
SUSAN A. SAMPLES
VS.
DIVISION OF HIGHWAYS
(CC-04-132)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On February 19, 2004, claimant was driving on I-79 in Kanawha County
when her vehicle struck part of a bridge that was protruding upward, damaging two tires.
2. Respondent was responsible for the maintenance of I-79, which it failed to
maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $315.60.
4. Respondent agrees that the amount of $315.60 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was negligent in its maintenance of I-79 on the date of this incident; that the negligence of
respondent was the proximate cause of the damages sustained to claimant's vehicle; and
that the amount of the damages agreed to by the parties is fair and reasonable. Thus,
claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $315.60
Award of $315.60.
__________________
OPINION ISSUED DECEMBER 1, 2005
RANDY PARKER
VS.
DIVISION OF HIGHWAYS
(CC-04-133)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On February 19, 2004, claimant was driving on I-79 in Kanawha County
when his vehicle struck a steel expansion joint that was protruding from the bridge,
damaging two tires.
2. Respondent was responsible for the maintenance of I-79, which it failed to
maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $314.36.
4. Respondent agrees that the amount of $314.36 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of I-79 on the date of this incident; that the negligence of
respondent was the proximate cause of the damages sustained to claimant's vehicle; and
that the amount of the damages agreed to by the parties is fair and reasonable. Thus,
claimant may make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $314.36
Award of $314.36.
__________________
OPINION ISSUED DECEMBER 1, 2005
PAMELA L. CAMPBELL
VS.
DIVISION OF HIGHWAYS
(CC-04-149)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On March 8, 2004, claimant was traveling on W. Va. Route 19 near Mount
Lookout, Nicholas County, when her vehicle struck a rock in the road, damaging two
tires and two rims.
2. Respondent was responsible for the maintenance of W. Va. Route 19, which
it failed to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $226.73.
4. Respondent agrees that the amount of $226.73 for the damages put forth by
the claimants is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of W. Va. Route 19 on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained to
claimant's vehicle; and that the amount of the damages agreed to by the parties is fair
and reasonable. Thus, claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $226.73.
Award of $226.73.
__________________
OPINION ISSUED DECEMBER 1, 2005
SANDRA LYNN SLIGER and RICHARD M. SLIGER
VS.
DIVISION OF HIGHWAYS
(CC-04-362)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
1992 Ford Ranger struck a hole while they were traveling on Route 91 near Farmington,
Marion County. Route 91 is a road maintained by respondent. The Court is of the
opinion to make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred around 10:00 a.m. on June 2,
2004, a clear and dry day. Route 91 is a two-lane highway at the area of the incident
involved in this claim. Claimant Sandra Sliger testified that she was driving on Route
91 when she saw the hole. She stated that she had seen the hole previously but had been
able to avoid it on other occasions. Ms. Sliger stated that she was unable to avoid it due
to oncoming traffic. Claimant testified that the hole was between six and twelve inches
deep and several feet wide. Claimants' vehicle struck the hole sustaining damage to the
A-frame totaling $221.92.
The position of the respondent is that it did not have actual or constructive notice of the condition on Route 91 at the site of the claimant's accident for the date in
question.
Don Steorts, County Administrator for the respondent in Marion County,
testified that he had no knowledge of any holes on Route 91 near Farmington for the
date in question or the days immediately prior. Mr. Steorts stated that there were no
records of either complaints concerning the condition of the road or any maintenance
done on this stretch of road for two weeks prior to claimant's incident or two weeks
after. Respondent maintains that it had no actual or constructive notice of any holes
on Route 91.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimants' vehicle struck and that the hole
presented a hazard to the traveling public. The size of the hole and the time of the year
in which claimants' incident occurred leads the Court to conclude that respondent had
notice of this hazardous condition and respondent had an adequate amount of time to
take corrective action. Thus, the Court finds respondent negligent and claimants may
make a recovery for the damage to their vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimants in this
claim in the amount of $221.92.
Award of $221.92.
__________________
OPINION ISSUED DECEMBER 1, 2005
LONNIE R. CRITES and ROSA LYNN CRITES
VS.
DIVISION OF HIGHWAYS
(CC-04-422)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
2001 Hyundai Elantra struck a hole while they were traveling on I-79 near the Simpson
Creek Bridge in Harrison County. I-79 is a highway maintained by respondent. The
Court is of the opinion to make an award in this claim for the reasons more fully stated
below.
The incident giving rise to this claim occurred around 6:30 p.m. on June 3,
2004, a clear and dry day. I-79 is a four-lane highway that was under construction at the
area of the incident involved in this claim. Claimant Lonnie Crites testified that he was
driving on I-79 with traffic all around him, including a tractor trailer passing him on his
left, when his vehicle struck the hole. He stated that he could not avoid the hole due to the traffic around him. Mr. Crites stated that the hole was about four or five inches
deep. Claimants' vehicle struck the hole sustaining damage to both front and rear
passenger side rims and tires totaling more than their $250.00 insurance deductible.
The position of the respondent is that it did not have actual or constructive
notice of the condition on I-79 at the site of the claimant's accident for the date in
question.
Robert Suan, Crew Leader for the respondent in Taylor County at the Lost
Creek Office, testified that the bridges were being widened in the area of claimants'
incident around the date of the accident. Mr. Suan stated that respondent's maintenance
crews will patch holes as they see them throughout construction sites. He further stated
that respondent's crews had been out patching holes along I-79 on June 3, 2004, but that
due to the traffic a hole could reemerge at any time. Mr. Suan also stated that there were
no complaints regarding holes along I-79 prior to claimant's incident. Respondent
maintains that it had no actual or constructive notice of any holes on I-79.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimants' vehicle struck and that the hole
presented a hazard to the traveling public. The size of the hole and the time of the year
in which claimants' incident occurred leads the Court to conclude that respondent had
notice of this hazardous condition and respondent had an adequate amount of time to
take corrective action. Thus, the Court finds respondent negligent and claimants may
make a recovery for the damage to their vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimants in this
claim in the amount of $250.00.
Award of $250.00.
__________________
OPINION ISSUED DECEMBER 1, 2005
CARLA R. ROSE
VS.
DIVISION OF HIGHWAYS
(CC-05-115)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 2004
Dodge Neon struck a hole while she was traveling on Van Clevesville Road near
Martinsburg, Berkeley County. Van Clevesville Road is a road maintained by
respondent. The Court is of the opinion to make an award in this claim for the reasons
more fully stated below.
The incident giving rise to this claim occurred around 12:30 a.m. on February 13, 2005, a clear and dry evening. Van Clevesville Road is a two-lane unmarked
highway at the area of the incident involved in this claim. Claimant testified that she
was driving on Van Clevesville Road with a vehicle traveling towards her when her
vehicle struck a hole on the edge of the highway. She stated that she had seen the hole
previously but had been able to avoid it on other occasions. Claimant's vehicle struck
the hole sustaining damage both passenger side rims and tires Claimant's vehicle
sustained damage totaling $850.80. Claimant's insurance deductible was $500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Van Clevesville Road at the site of the claimant's accident for
the date in question.
Mark Baker, an Assistant Supervisor for the respondent in Berkeley County,
testified that he had no knowledge of any holes on Van Clevesville Road for the date in
question. Mr. Baker testified that there were no records of complaints concerning the
condition of the road. He stated that the road was designed for residential use but has
been experiencing an increase in truck traffic for agricultural purposes. Respondent
maintains that it had no actual or constructive notice of any holes on Van Clevesville
Road.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's vehicle struck and that the hole
presented a hazard to the traveling public. The size of the hole and the time of the year
in which claimant's incident occurred leads the Court to conclude that respondent had
notice of this hazardous condition and respondent had an adequate amount of time to
take corrective action. Thus, the Court finds respondent negligent and claimant may
make a recovery for the damage to her vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED DECEMBER 1, 2005
ORVILLE W. BELL JR.
VS.
DIVISION OF HIGHWAYS
(CC-05-212)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 1997
Toyota Camry struck a broken section of pavement while he was traveling on Route 21,
also known as Blue Goose Road, in Monongalia County. Route 21 is a road maintained by respondent. The Court is of the opinion to make an award in this claim for the
reasons more fully stated below.
The incident giving rise to this claim occurred between 2:00 p.m. and 3:00 p.m.
on April 11, 2005, a cloudy day. Route 21 is a two-lane highway at the area of the
incident involved in this claim. Claimant testified that he was driving through a curve
on Route 21 with a tractor trailer traveling towards him in the opposite lane and on the
center line of the road. Mr. Bell stated that he had to drive his vehicle close to the edge
of the road because of the tractor trailer. He testified that his vehicle then struck a
section of broken pavement that extended almost one foot into the roadway, was three
feet long, and nine to twelve inches deep. Claimant's vehicle struck the broken section
of pavement sustaining damage to the both passenger side tires and one rim totaling
$137.80.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 21 at the site of the claimant's accident for the date in
question.
Ralph Henderson, Crew Chief for the respondent in Monongalia County,
testified that he had no knowledge of any sections of broken pavement on Route 21 for
the date in question. Mr. Henderson stated that there were no records of either
complaints concerning the condition of the road or any maintenance done on this stretch
of road prior to claimant's incident. Respondent maintains that it had no actual or
constructive notice of any holes on Route 21.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the broken section of highway which claimant's vehicle struck
and that it presented a hazard to the traveling public. Photographs in evidence depict the
broken section of highway and provide the Court an accurate portrayal of the size and
location of the broken section of highway on Route 21. The size of the broken section
of highway and the time of the year in which claimant's incident occurred leads the
Court to conclude that respondent had notice of this hazardous condition and respondent
had an adequate amount of time to take corrective action. Thus, the Court finds
respondent negligent and claimant may make a recovery for the damage to his vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $137.80.
Award of $137.80.
__________________
OPINION ISSUED DECEMBER 1, 2005
ARNOLD W. RYAN II
VS.
PUBLIC SERVICE COMMISSION
(CC-05-314)
Claimant appeared pro se.
Ronald R. Brown, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant, an employee of the respondent State agency, seeks $35.88 for
reimbursement of uniform cleaning fees. The documentation for these services was not
processed for payment within the appropriate fiscal year; therefore, claimant has not
been paid. In its Answer, respondent admits the validity of the claim as well as the
amount, and states that there were sufficient funds expired in the appropriate fiscal year
from which the invoice could have been paid.
Accordingly, the Court makes an award to claimant in the amount of $35.88.
Award of $35.88.
__________________
OPINION ISSUED DECEMBER 1, 2005
DAVIS MEMORIAL HOSPITAL
VS.
DIVISION OF CORRECTIONS
(CC-05-379)
Claimant appeared pro se.
Charles P. Houdyschell Jr., Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks payment in the amount of $196.35 for medical services
rendered to inmates in the custody of respondent at Pruntytown Correctional Center, a
facility of the respondent. Respondent, in its Answer, admits the validity of the claim,
and further states that there were insufficient funds in its appropriation for the fiscal year
in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et al. vs. Dept. of
Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
__________________
OPINION ISSUED DECEMBER 28, 2005
LENARD ANTHONY PANRELL
VS.
DIVISION OF HIGHWAYS
(CC-02-200)
Michael D. Payne and Christopher Davis, Attorneys at Law, for claimant.
Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent.
GRITT, JUDGE:
Claimant brought this action for personal injury which occurred when the
mountain bicycle he was riding struck a hole while he was traveling through the
intersection of Pleasant Street and Spruce Street in Morgantown, Monongalia County.
Pleasant Street and Spruce Street are both roads maintained by respondent. The Court
is of the opinion to make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred between 11:30 a.m. and 12:00
p.m. on May 6, 2000, a clear and sunny day. Pleasant Street and Spruce Street are both
two-lane highways at the area of the incident involved in this claim. Mr. Panrell
testified that he was test riding a bicycle from a local bicycle store. He had taken it for
a ride around the city and had stopped at the home of George and Mary Beth Patandreas
to show them the bicycle. They were all considering purchasing new bicycles so that
they could ride the rail trail in Morgantown, and Mr. Panrell had decided to show them
the bicycle he was considering to purchase. While traveling back to the bicycle store,
claimant testified that he was crossing the Pleasant Street bridge. He began to slow
down as the light at the intersection was red for traffic traveling in his direction. As he
neared the intersection of Pleasant Street and Spruce Street, the light changed to green
and he looked at the traffic at the intersection to make sure that it had stopped for the
traffic light. Mr. Panrell stated that it was then that he saw a hole in the road that he had
not seen before. The bicycle he was riding struck the hole causing claimant to lose
control and fall from the bicycle. Mr. and Mrs. Patandreas went to the scene of the
accident after receiving a telephone call informing them that Mr. Panrell had been
injured. Mr. Patandreas testified that the hole in the pavement was about 27 or 28
inches long, and between five and six inches deep. Mr. Panrell sustained a broken left
arm. He underwent surgery to repair his arm and had pins inserted into the bone in his
arm so it would heal correctly. Claimant paid $250.00 for a traction device to use in his
physical therapy. He also paid $300.00 of his medical bills and $425.00 for physical
therapy sessions. Mr. Panrell's insurance paid the remainder of his medical bills in the
amount of $9,425.55. The claimant incurred a total of $975.00 in unreimbursed medical
expenses as a result of this accident.
Mr. Panrell testified that before this accident he was very active in outdoor
activities. He stated that he formerly engaged in sky diving, scuba diving, skiing, rock
climbing, white water rafting, bicycling, and riding motorcycles, among other activities.
He had been a volunteer emergency medical technician for Blacksville EMS for ten
years prior to the accident serving as a crew chief, but he was no longer a volunteer at
the time of the accident herein. He has been employed by Consolidated Coal at the
Blacksville Number 2 mine as a warehouse technician clerk since 1978 and he returned
to his position some ten to eleven weeks after the accident. He also serves as an EMT
while he is on duty at the coal mine if the need arises. Mr. Panrell stated that following
the accident he was advised by his doctors to do nothing that would create a repetitive
shock to the bone in his left arm. He is able to continue in his employment with the coal
mine but he has modified how he performs his job duties to accommodate the reduced
strength in his left arm. He also testified that he no longer can rock climb or rappel
since he cannot support his weight with his left arm. Mr. Panrell testified that he and
a group of friends would routinely get together for activities prior to the accident, but
since the accident he has been unable to join them in many of the activities due to the
limited use of his left arm.
The position of the respondent is that it did not have actual or constructive
notice of the condition at the intersection of Pleasant Street and Spruce Street at the site
of the claimant's accident for the date in question.
Kathy Westbrook, Highway Administrator for the respondent in Monongalia
County, testified that she had no knowledge of any holes at the intersection of Pleasant
Street and Spruce Street in Morgantown for the date in question. She stated that
generally if there is a hole in the road that is an inch or an inch and a half in depth and
that crews would try to patch it. Ms. Westbrook stated that there was patching done
along this stretch of road on May 29, 2000, with temporary cold patch. She stated that
the temporary cold patch can last for a long time or only very shortly after being put in
place due to weather and traffic conditions. Ms. Westbrook further stated that she had
not received any telephone calls or complaints about a hole at the intersection of
Pleasant Street and Spruce Street prior to the claimant's incident.
Ralph Henderson, Crew Chief for the respondent in Monongalia County,
testified that on March 23, 2000, he was in charge of a prison crew that was doing
temporary cold patching on U.S. Route 119, which included the intersection of Pleasant
Street and Spruce Street. Mr. Henderson stated that he did not recall patching a hole at
the site of claimant's accident. He further stated that he did not receive any complaints
about a hole at this intersection between March 23, 2000, and the date of claimant's
accident.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's bicycle struck and that the hole
presented a hazard to the traveling public. Photographs in evidence depict the hole and
provide the Court an accurate portrayal of the size and location of the hole at the
intersection of Pleasant Street and Spruce Street. The size of the hole and the time of
the year in which claimant's incident occurred leads the Court to conclude that
respondent had notice of this hazardous condition and respondent had an adequate
amount of time to take corrective action. Thus, the Court finds respondent negligent and
claimant may make a recovery for the medical expenses that he incurred. Further, due
to the nature of the permanent injury to the claimant, his diminished capacity to enjoy
life and the pain and suffering he endured, claimant may make a recovery for the loss
he has experienced.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $975.00 for his medical expenses and $100,000.00 for his
permanent injury, pain and suffering and diminished capacity to enjoy life.
Award of $100,975.00.
__________________
OPINION ISSUED JANUARY 4, 2006
GARY EISENMAN and R
EBECCA EISENMAN
VS.
DIVISION OF HIGHWAYS
(CC-04-864)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
2001 Chevrolet Silverado struck a washed out shoulder while Gary Eisenman was
traveling on County Route 29 in Greenbrier County. County Route 29 is a road
maintained by respondent. The Court is of the opinion to make an award in this claim
for the reasons more fully stated below.
The incident giving rise to this claim occurred around 10:00 a.m. on August 7,
2004, a clear and dry day. County Route 29 is a two-lane highway at the area of the
incident involved in this claim. Mr. Eisenman testified that he was driving on County
Route 29 when he saw a vehicle being driven towards him which was traveling in the
middle of the road. He stated that he had to drive his vehicle onto the shoulder of the
road to avoid the other vehicle. Mr. Eisenman stated that the shoulder was much lower
than the level of the road and his vehicle veered across the road after he tried to steer
his vehicle off the shoulder. The vehicle struck a telephone pole on the left side of the
road. He stated that the shoulder was approximately eight inches lower than the road.
Mr. Eisenman had first noticed the condition of the shoulder the previous November and
had notified respondent of the condition on several occasions. Claimants' vehicle struck
a telephone pole sustaining extensive damage to the driver's side of the vehicle totaling
$9,832.00. Claimants' insurance deductible was $1,000.00.
The position of the respondent is that it did have actual notice of the condition
on County Route 29 at the site of the claimant's accident; however, its crews were
involved in snow and ice removal and repairs to flood damaged areas prior to claimants'
incident.
Richard Hines, Crew Supervisor for respondent in Greenbrier County, testified
that the shoulder on County Route 29 had been in a state of disrepair since November
2003, when there had been flooding in Greenbrier County. Mr. Hines stated that
respondent's crews had been involved in snow and ice removal until March 2004, and
then its crews began the repair work related to flood damage from November 2003.
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, a 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 instant case, the Court is of the opinion that respondent had actual notice
of the condition of the shoulder which claimants' vehicle struck and that the washed out
shoulder presented a hazard to the traveling public. The condition of the shoulder and
respondent's knowledge of this condition leads the Court to conclude that respondent
had notice of this hazardous condition and respondent had an adequate amount of time
to take corrective action. Thus, the Court finds respondent negligent and claimants may
make a recovery for the damage to their vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimants in this
claim in the amount of $1,000.00.
Award of $1,000.00.
__________________
OPINION ISSUED JANUARY 17, 2006
COLISIA A. HUFF
VS.
DIVISION OF HIGHWAYS
(CC-04-567)
Claimants appeared pro se
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
her1995 Dodge Caravan striking rocks while she was traveling on State Route 2 in the
Glendale area, also known as "the narrows," in Marshall County. State Route 2 is a road
maintained by respondent. The Court is of the opinion to make an award in this claim
for the reasons more fully stated below.
The incident giving rise to this claim occurred on September 8, 2004. On the
date in question, Ms. Huff was traveling northbound on State Route 2 around Glendale.
State Route 2 is a four-lane road that is marked as a "falling rock" area. She was
proceeding along State Route 2 when the vehicle she was driving struck a rock that had
fallen into the roadway. Claimant's vehicle sustained damage to the oil totaling
$342.29.
It is respondent's position that it acted diligently and took reasonable measures
to warn and protect the traveling public from the hazards of rock falls. There are falling
rock signs at both the north and south ends of the section of State Route 2 referred to as
"the narrows." Respondent undertakes periodic patrols through the area and the area has
been provided with ample lights for when it is dark. Respondent also maintained that
it had no notice of this particular rock fall prior to claimant's accident.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its highways. Adkins v. Sims, 46 S.E.2d 811
(W.Va.1947). In order to hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of the
road defect in question and a reasonable amount of time to take corrective action.
Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct.
Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent has
constructive notice of rock fall hazards in the area at issue. This area on State Route 2
referred to as "the narrows" is a section of highway known for dangerous rock falls
which are clearly a hazard to the traveling public.
Even though respondent has flashing warning signs in place and numerous
lights to assist drivers in seeing rock falls, these actions have not proven to be an
adequate remedy to protect the traveling public from the rocks which frequently fall onto
the highway. This Court has previously made awards in many claims which occurred
in this specific section of State Route 2. See Branicky vs. Div. of Highways, 24 Ct. Cl.
273 (2003); Cusick vs. Div. of Highways, 24 Ct. Cl. 216 (2002); Hall vs. Div. of
Highways, 24 Ct. Cl. 212 (2002); Foster vs. Div. of Highways, 23 Ct. Cl. 248 (2000);
Williams vs. Div. of Highways, CC-99-114, (Ct. Cl. Dec. 6, 1999), Hundagen vs. Div.
of Highways, CC-98-303 (Ct. Cl. Dec. 6, 1999). Thus, the Court is of the opinion that
respondent is liable for the damages which proximately flow from its inadequate
protection of the traveling public in this specific location of State Route 2 in Marshall
County, and further, that respondent is liable for the damages to claimant's vehicle in
this claim.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $342.29.
Award of $342.29.
__________________
OPINION ISSUED JANUARY 17, 2006
JAMES SAMPLES
VS.
DIVISION OF CORRECTIONS
(CC-04-580)
Claimant appeared pro se.
Charles P. Houdyschell Jr., Senior Assistant Attorney General, for
respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On March 13, 2003, claimant, an inmate at Mount Olive Correctional Center,
was placed in lock up.
2. On March 31, 2003, employees for respondent appropriated, documented
and stored the claimant's personal property located in his cell.
3. On May 12, 2004, claimant was released from lock-up and inspected his
inventoried list of personal items and discovered twenty-eight Playstation games and
two Playstation memory cards were missing.
4. At the hearing of this matter respondent admitted that this claim was valid.
5. Respondent and claimant agree that the amount of $750.00 for the damages
put forth by the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent failed
adequately to care for claimant's personal property since it was not returned to him.
Thus, claimant may make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $750.00.
Award of $750.00.
__________________
OPINION ISSUED JANUARY 17, 2006
SANDRA S. DIETZ
VS.
DIVISION OF HIGHWAYS
(CC-05-010)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
her1996 Honda Accord striking rocks while she was traveling on State Route 2 in the
Glendale area, also known as "the narrows," in Marshall County. State Route 2 is a road
maintained by respondent. The Court is of the opinion to make an award in this claim
for the reasons more fully stated below.
The incident giving rise to this claim occurred on December 28, 2004. On the
date in question, Ms. Dietz was traveling northbound on State Route 2 around Glendale.
State Route 2 is a four-lane road that is marked as a "falling rock" area. She was
proceeding along State Route 2 when the vehicle she was driving struck a rock that had
fallen into the roadway. Claimant's vehicle sustained damage to the transmission pan
totaling $216.24.
It is respondent's position that it acted diligently and took reasonable measures
to warn and protect the traveling public from the hazards of rock falls. There are falling
rock signs at both the north and south ends of the section of State Route 2 referred to as
"the narrows." Respondent undertakes periodic patrols through the area and the area has
been provided with ample lights for when it is dark. Respondent also maintained that
it had no notice of this particular rock fall prior to claimant's accident.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its highways. Adkins v. Sims, 46 S.E.2d 811
(W.Va.1947). In order to hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of the
road defect in question and a reasonable amount of time to take corrective action.
Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct.
Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent has
constructive notice of rock fall hazards in the area at issue. This area on State Route 2
referred to as "the narrows" is a section of highway known for dangerous rock falls
which are clearly a hazard to the traveling public.
Even though respondent has flashing warning signs in place and numerous lights to
assist drivers in seeing rock falls, these actions have not proven to be an adequate
remedy to protect the traveling public from the rocks which frequently fall onto the
highway. This Court has previously made awards in many claims which occurred in this
specific section of State Route 2. See Branicky vs. Div. of Highways, 24 Ct. Cl. 273
(2003); Cusick vs. Div. of Highways, 24 Ct. Cl. 216 (2002); Hall vs. Div. of Highways,
24 Ct. Cl. 212 (2002); Foster vs. Div. of Highways, 23 Ct. Cl. 248 (2000); Williams vs.
Div. of Highways, CC-99-114, (Ct. Cl. Dec. 6, 1999); Hundagen vs. Div. of Highways,
CC-98-303 (Ct. Cl. Dec. 6, 1999).
Thus, the Court is of the opinion that respondent is
liable for the damages which proximately flow from its inadequate protection of the
traveling public in this specific location of State Route 2 in Marshall County, and
further, that respondent is liable for the damages to claimant's vehicle in this claim.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $216.24.
Award of $216.24.
__________________
OPINION ISSUED JANUARY 17, 2006
JOYCE ZERVOS and NICK F. ZERVOS JR.
VS.
DIVISION OF HIGHWAYS
(CC-05-042)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred as a result of
their 1996 Honda Accord striking rocks while claimant Joyce Zervos was traveling on
State Route 2 in the Glendale area, also known as "the narrows," in Marshall County.
State Route 2 is a road maintained by respondent. The Court is of the opinion to make
an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on December 30, 2004. On the
date in question, Ms. Servos was traveling northbound on State Route 2 around
Glendale. State Route 2 is a four-lane road that is marked as a "falling rock" area. She
was proceeding along State Route 2 when the vehicle she was driving struck a rock that
had fallen into the roadway. Claimants' vehicle sustained damage to the oil pan totaling
$616.25. Claimants' insurance deductible was $500.00.
It is respondent's position that it acted diligently and took reasonable measures
to warn and protect the traveling public from the hazards of rock falls. There are falling
rock signs at both the north and south ends of the section of State Route 2 referred to as
"the narrows." Respondent undertakes periodic patrols through the area and the area has
been provided with ample lights for when it is dark. Respondent also maintained that
it had no notice of this particular rock fall prior to claimant's accident.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its highways. Adkins v. Sims, 46 S.E.2d 811
(W.Va.1947). In order to hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of the
road defect in question and a reasonable amount of time to take corrective action.
Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct.
Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent has
constructive notice of rock fall hazards in the area at issue. This area on State Route 2
referred to as "the narrows" is a section of highway known for dangerous rock falls
which are clearly a hazard to the traveling public.
Even though respondent has flashing warning signs in place and numerous lights to
assist drivers in seeing rock falls, these actions have not proven to be an adequate
remedy to protect the traveling public from the rocks which frequently fall onto the
highway. This Court has previously made awards in many claims which occurred in this
specific section of State Route 2. See Branicky vs. Div. of Highways, 24 Ct. Cl. 273
(2003); Cusick vs. Div. of Highways, 24 Ct. Cl. 216 (2002); Hall vs. Div. of Highways,
24 Ct. Cl. 212 (2002); Foster vs. Div. of Highways, 23 Ct. Cl. 248 (2000); Williams vs.
Div. of Highways, CC-99-114, (Ct. Cl. Dec. 6, 1999)
; Hundagen vs. Div. of Highways, CC-98-303 (Ct. Cl. Dec. 6, 1999).
Thus, the Court is of the opinion that respondent is
liable for the damages which proximately flow from its inadequate protection of the
traveling public in this specific location of State Route 2 in Marshall County, and
further, that respondent is liable for the damages to claimants' vehicle in this claim.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED JANUARY 17, 2006
PATRICIA A. WELLING
VS.
DIVISION OF HIGHWAYS
(CC-05-052)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On January12, 2005, claimant's son was traveling on Route 67, Brooke
County, when the vehicle struck rocks in the road, damaging the gas tank.
2. Respondent was responsible for the maintenance of Route 67, which it failed
to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $289.30. Claimant's insurance deductible was $250.00.
4. Respondent agrees that the amount of $250.00 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Route 67 on the date of this incident; that the negligence
of respondent was the proximate cause of the damages sustained to claimant's vehicle;
and that the amount of the damages agreed to by the parties is fair and reasonable. Thus,
claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $250.00.
Award of $250.00.
__________________
OPINION ISSUED JANUARY 17, 2006
GEORGE F. LANDERS
VS.
DIVISION OF HIGHWAYS
(CC-05-077)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 2003
Dodge Ram slid on a patch of ice while he was traveling on County Route 21 in
Marshall County. County Route 21 is a road maintained by respondent. The Court is
of the opinion to make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred at approximately 6:45 a.m. on
February 4, 2005, a cold and dry morning. County Route 21 is a two-lane highway at
the area of the incident involved in this claim. Claimant testified that he was driving on
County Route 21 when his vehicle slid on a patch of ice. He stated that he had been
traveling approximately 15 miles per hour due to the curves on the road. Mr. Landers
testified that the water was run-off from a ditch adjacent to the road and that the water
covered the entire road. He stated that there was a storm drain in the ditch, but that it
was blocked by rocks. Mr. Landers further stated that in December 2004, he had called
respondent about a rock fall at this same location and that the rocks had been moved into
the ditch by respondent at that time. Claimant's vehicle slid on the patch of ice and into
a guardrail damaging the bumper. Claimant's vehicle sustained damage totaling
$583.95. Claimant's insurance deductible was $500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on County Route 21 at the site of the claimant's accident for the
date in question.
Chris Minor, Highway Administrator 2 for the respondent in Marshall County,
testified that he had no knowledge of any water running across County Route 21 at the
site of claimant's accident for the date in question. Mr. Minor stated that there had been
a rock slide at this location several months earlier and that the rocks had just been
moved out of the road so that traffic could proceed along it.
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, a 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 State can neither be required nor expected to
keep its highways absolutely free of ice and snow at all times, and the presence of an
isolated patch on a highway during winter months, or a water patch in summer is
generally insufficient to charge the State with negligence. Richards v. Division of
Highways, 19 Ct. Cl. 71 (1992); McDonald v. Dept. of Highways, 13 Ct. Cl. 13 (1979);
Christo v. Dotson, 151 W. Va. 696, 155 S.E.2d 571 (1967).
In the instant case, the Court is of the opinion that respondent had at least
constructive notice of the condition in the area of County Route 21 where claimant's
accident occurred and that ice on the road presented a hazard to the traveling public.
Respondent had previously moved rocks from the road and placed them in the ditch
adjacent to the road, also covering a storm drain. That respondent placed the rocks in
this ditch leads the Court to conclude that respondent had notice of this hazardous
condition and respondent had an adequate amount of time to take corrective action.
Thus, the Court finds respondent negligent and claimant may make a recovery for the
damage to his vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED JANUARY 17, 2006
ROBERT G. PHILLIPS
VS.
DIVISION OF HIGHWAYS
(CC-05-153)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when he drove
his 1990 Chrysler New Yorker into an area which was under repair while he was
traveling on County Route 25 in Ohio County. County Route 25 is a road maintained
by respondent. The Court is of the opinion to make an award in this claim for the
reasons more fully stated below.
The incident giving rise to this claim occurred sometime in the afternoon on
March 3, 2005, a clear and dry day. County Route 25 is a two-lane highway at the area
of the incident involved in this claim. Claimant testified that he was driving on County
Route 25 when he saw the hole. He stated that there was work being done along the
road to repair damages that had occurred as a result of a flood during September 2004.
Mr. Phillips testified that there was no one working at the site when his vehicle
approached the area. He saw a cut in the pavement that was approximately four feet
wide and four feet long that had been filled with slag when the workers left the area for
the day. Mr. Phillips could not avoid this hole because of oncoming traffic. His vehicle
struck the hole and damaged the right and left front struts. Claimant's vehicle sustained
damage totaling $362.48. Claimant's insurance deductible was $50.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on County Route 25 at the site of the claimant's accident for the
date in question.
Milton Davis, County Administrator for the respondent in Ohio County,
testified that there had been a flood in September of 2004 that caused damage to the
shoulders, embankments, and guardrails along County Route 25. Mr. Davis stated that
a contractor was hired to complete the repairs. He testified that there may have been an
inspector for respondent at the site of claimant's accident. Respondent maintains that
it had no actual or constructive notice of defective condition at the repair site.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's vehicle struck and that the condition at the repair site on County Route 25 presented a hazard to the traveling public. The Court
is aware that it is common practice for respondent to have an inspector on site for
construction projects that are completed by contractors and that these inspectors ensure
that the roads are safe for the traveling public both during and after the hours that the
contractor is working on the roads. The size of the depression across the road leads the
Court to conclude that respondent had notice of this hazardous condition and respondent
had an adequate amount of time to take corrective action. Thus, the Court finds
respondent negligent and claimant may make a recovery for the damage to his vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $50.00.
Award of $50.00.
__________________
OPINION ISSUED JANUARY 17, 2006
TERESA A. LUCAS
VS.
DIVISION OF HIGHWAYS
(CC-05-245)
Claimant appeared pro se.
Xueyan Palmer, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 1998
Suzuki Sidekick struck a washed out portion of the shoulder when she was traveling on
W. Va. Route 15 in Webster County. W. Va. Route 15 is a road maintained by
respondent. The Court is of the opinion to make an award in this claim for the reasons
more fully stated below.
The incident giving rise to this claim occurred at approximately 9:00 p.m. on
March 19, 2005, a rainy and foggy evening. W. Va. Route 15 is a two-lane highway at
the area of the incident involved in this claim. Claimant testified that she was driving
southbound on W. Va. Route 15 when her front passenger side tire struck a section of
shoulder that had been washed out. She stated that her vehicle went into the washed out
shoulder area and she could not maneuver it out of the defective shoulder. Ms. Lucas
stated that the washed out section of shoulder was between three and four feet deep.
Claimant's vehicle sustained damages to the right front tire and extensive damages to
the vehicle totaling $3,592.45.
The position of the respondent is that it did not have actual or constructive
notice of the condition on W. Va. Route 15 at the site of the claimant's accident for the
date in question.
Doyle Williams, Highway Administrator 2 for the respondent in Webster
County, testified that there had been several inches of rain during March 2005, which
caused several slips along roads in Webster County. It also caused several ditches to be
washed out. Mr. Williams stated that the shoulder along W. V. Route 15 had been
washed out for several days at least, but that crews for respondent had been repairing
slips along other stretches of road where the roads had been blocked. However, he also
testified that approximately one month passed before the shoulder was repaired.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the washed out shoulder which claimant's vehicle struck and that
the washed out shoulder presented a hazard to the traveling public. Photographs in
evidence depict the shoulder and provide the Court an accurate portrayal of the size and
location of the wash out on W. Va. Route 15. The size of the wash out leads the Court
to conclude that respondent had notice of this hazardous condition and respondent had
an adequate amount of time to provide a warning device or take corrective action to
protect the traveling public. Thus, the Court finds respondent negligent and claimant
may make a recovery for the damage to her vehicle. However, the Court also finds that
claimant was also negligent in that she drove onto the shoulder of the road without being
forced to do so by oncoming traffic. The Court concludes that claimant was twenty-five
per cent (25%) negligent. Based upon the principle of comparative negligence, the
award to claimant will be reduced accordingly.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $2,694.34.
Award of $2,694.34.
__________________
OPINION ISSUED JANUARY 17, 2006
KITTY WOLFE
VS.
DIVISION OF HIGHWAYS
(CC-05-306)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On July 11, 2005, claimant was traveling on a bridge on Route 218 near
Fairview, Marion County, when her vehicle struck a fastener attached to a steel plate
and it caused damage to a tire.
2. Respondent was responsible for the maintenance of Route 218 which it
failed to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $83.07
4. Respondent agrees that the amount of $83.07 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of the bridge on Route 218 on the date of this incident; that
the negligence of respondent was the proximate cause of the damages sustained to claimant's vehicle; and that the amount of the damages agreed to by the parties is fair
and reasonable. Thus, claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $83.07.
Award of $83.07
__________________
OPINION ISSUED JANUARY 17, 2006
SGS NORTH AMERICA
VS.
DIVISION OF LABOR
(CC-05-395)
Chris Robbins, Attorney at Law, for claimant
Ronald R. Brown, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks $18,040.00 for providing analysis services of samples
submitted by respondent. The documentation for the analysis services was not
processed for payment within the appropriate fiscal year; therefore, claimant has not
been paid. In its Answer, respondent admits the validity of the claim as well as the
amount, and states that there were sufficient funds expired in the appropriate fiscal year
from which the invoice could have been paid.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $18,040.00.
Award of $18,040.00.
__________________
OPINION ISSUED JANUARY 17, 2006
CORRECTIONAL MEDICAL SERVICES INC.
VS.
DIVISION OF CORRECTIONS
(CC-05-422)
Claimant appeared pro se.
Charles P. Houdyschell Jr., Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks payment in the amount of $406,028.09 for medical services
rendered to inmates in the custody of respondent at St. Mary's Correctional Center,
Huttonsville Correctional Center, Pruntytown Correctional Center, Denmar Correctional
Center, St. Anthony's Correctional Center, Lakin Correctional Center, and Mount Olive
Correctional Complex, all facilities of the respondent. Respondent, in its Answer,
admits the validity of the claim. Respondent further states that there were insufficient funds in its appropriation for the fiscal year in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et al. vs. Dept. of
Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
__________________
OPINION ISSUED JANUARY 17, 2006
INTEGRATED HEALTHCARE PROVIDERS
VS.
DIVISION OF CORRECTIONS
(CC-05-433)
Claimant appeared pro se.
Charles P. Houdyschell Jr., Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks payment in the amount of $10,028.39 for medical services
rendered to inmates in the custody of respondent at Mount Olive Correctional Complex,
a facility of the respondent. Respondent, in its Answer, admits the validity of the claim.
Respondent further states that there were insufficient funds in its appropriation for the
fiscal year in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et al. vs. Dept. of
Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
__________________
OPINION ISSUED JANUARY 17, 2006
CHARLESTON AREA MEDICAL CENTER INC.
VS.
DIVISION OF CORRECTIONS
(CC-05-442)
Francis C. Gall Jr., Attorney at Law, for claimant.
Charles P. Houdyschell Jr., Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks payment in the amount of $324,395.70 for medical services
rendered to inmates in the custody of respondent at Mount Olive Correctional Center,
a facility of the respondent. Respondent, in its Answer, admits the validity of the claim.
Respondent further states that there were insufficient funds in its appropriation for the fiscal year in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et al. vs. Dept. of
Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
__________________
OPINION ISSUED JANUARY 17, 2006
GRAFTON CITY HOSPITAL
VS.
DIVISION OF CORRECTIONS
(CC-05-443)
Claimant appeared pro se.
Charles P. Houdyschell Jr., Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks payment in the amount of $12,548.27 for medical services
rendered to inmates in the custody of respondent at Pruntytown Correctional Center, a
facility of the respondent. Respondent, in its Answer, admits the validity of the claim.
Respondent further states that there were insufficient funds in its appropriation for the
fiscal year in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et al. vs. Dept. of
Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
__________________
OPINION ISSUED JANUARY 27, 2006
EQUIFAX INFORMATION SERVICES LLC
VS.
WEST VIRGINIA DIVISION OF BANKING
(CC-06-001)
Christian Broussseau, Attorney at Law, for claimant.
Robert J. Lamont, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks $989.01 for providing services to the respondent State agency.
The documentation for these services was not processed for payment within the
appropriate fiscal year; therefore, claimant has not been paid. In its Answer, respondent
admits the validity of the claim as well as the amount, and states that there were
sufficient funds expired in the appropriate fiscal year from which the invoice could have been paid.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $989.01.
Award of $989.01.
__________________
OPINION ISSUED MARCH 21, 2006
ARNOLD WENDT
VS.
DIVISION OF HIGHWAYS
(CC-05-013)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 2003
Buick Century went into a slip in the road while traveling west on County Route 94 in
Marshall County. County Route 94 is a road maintained by respondent. The Court is
of the opinion to deny the claim for the reasons more fully stated below.
The incident giving rise to this claim occurred at approximately 6:30 p.m. on
December 11, 2004, a clear and dry evening. County Route 94 is a two-lane highway
at the area of the incident involved in this claim. Claimant testified that he was driving
between twenty and twenty-five miles per hour when his vehicle struck a slip in the road
that he had not seen. Mr. Wendt stated that the slip was in his right lane and was
approximately six inches deep, twenty five to thirty feet long, and was about as wide as
the lane of traffic. Claimant's vehicle sustained damage to the radiator totaling $544.84.
Claimant's insurance deductible was $500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on County Route 94 at the site of the claimant's accident for the
date in question.
Chris Minor, Highway Administrator II for the respondent in Marshall County,
testified that his office was first made aware of a slip along County Route 94 sometime
on December 11, 2004, the date of claimant's incident. Mr. Minor stated that the slip
occurred as a result of heavy rains that occurred for several months prior to claimant's
incident. Mr. Minor stated that he had no way of knowing when his office was made
aware of the slip in County Route 94.
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, a 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 instant case, the evidence established that the respondent did not have
actual or constructive notice of a slip in County Route 94 prior to the incident in
question. Consequently, there is insufficient evidence of negligence upon which to
justify an award. Thus, the claimant may not make a recovery for his loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this claim.
Claim disallowed.
__________________
OPINION ISSUED MARCH 21, 2006
DOROTHY J. MITCHEM and JOSEPH S. MITCHEM
VS.
DIVISION OF HIGHWAYS
(CC-05-032)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent
PER CURIAM:
Claimants brought this action for damage to their 1993 Pontiac Grand Prix
which occurred when a large tree located on respondent's right of way fell onto their
vehicle while they were traveling northbound on Route 2 in Ohio County. Route 2 is
a road maintained by respondent in Ohio 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 at approximately 11:30 a.m. on
January 6, 2005, a rainy morning. Route 2 is a three-lane road at the site of claimants'
accident. Mr. Mitchem stated that it had been raining for about three or four days prior
to the accident. Mr. Mitchem was driving with traffic around the vehicle when his
vehicle was struck by a tree that had fallen from the hillside adjacent to Route 2.
Claimants' vehicle was struck by the falling tree on the passenger side door and trunk,
causing extensive damage to the vehicle. As a result of this accident, claimants' vehicle,
which they had purchased less than one month previously for $3,000.00, was totaled.
Mrs. Mitchem, who was a passenger in the vehicle, was transported by ambulance to a
hospital for minor injuries. Claimants' claimed $5,215.00 in damages as a result of this
accident.
The position of the respondent was that it did not have notice of the tree on
Route 2 prior to claimants' accident. Milton Davis Jr., County Administrator for
respondent in Ohio County, testified that there had been many floods due to large
amounts of rain during September of 2004 in this area. Mr. Davis testified that there had
also been substantial rain just prior to this incident. He stated that there had been no
complaints about anything falling into the road in the area of claimants' accident prior
to claimants' accident. Respondent maintains that there was no prior notice of any trees
on Route 2 immediately prior to the incident in question.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va. 645,
46 S.E.2d 81 (1947). To hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of the
road defect at issue and a reasonable amount of time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8
(1985). The general rule of this Court with regard to tree fall claims is that if a tree is
dead and poses an apparent risk, then the respondent may be held liable. However,
when a healthy tree falls and causes property damage as a result of a storm, the Court
has held that there is insufficient evidence of negligence upon which to justify an award.
Wiles v. Division of Highways, 22 Ct. Cl. 170 (1998); Gerritsen v. Dept. of Highways, 16 Ct. Cl. 85 (1986).
In the present claim, the Court is of the opinion that respondent had no notice
that the tree at issue posed an apparent risk to the public. The evidence adduced at the
hearing established at the time of the claimants' accident there had been inclement
weather throughout the county for several days and that land slides were occurring
throughout the county at this time. Further, there was no evidence that respondent was
made aware of a risk of a tree falling from the hillside adjacent to the northbound lane
of Route 2. Consequently, there is insufficient evidence of negligence upon which to
justify an award. Thus, the claimants may not make a recovery for their loss in this
claim.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
__________________
OPINION ISSUED MARCH 21, 2006
WILLIAM LOUGHRIE
VS.
DIVISION OF HIGHWAYS
(CC-05-121)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
his 2002 Ford Taurus striking rocks when claimant's wife, Diane Loughrie, was
traveling westbound on Route 27 near Wellsburg, Brooke County. Route 27 is a road
maintained by respondent in Brooke 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 during the afternoon on March
15, 2005, a clear and dry day. Route 27 is a two-lane road that is marked at the location
of claimant's accident as a "falling rock" area with a speed limit of forty-five miles per
hour. Mrs. Loughrie was driving her vehicle through a curve when she noticed a large
rock in the middle of her lane of travel. She stated that she could not avoid the rock due
to the traffic on the road. Mrs. Loughrie testified that the rock was approximately one
and one half feet wide and between twelve and eighteen inches high. She further stated
that she had seen rocks in the road in the area of this accident prior to the date of her
accident. Claimant's vehicle struck the rock and sustained damage to the transmission
and catalytic converter totaling $303.89.
The position of the respondent was that it did not have notice of the rocks on
Route 27. Respondent admitted that the area in question is a rock fall area and stated
that there are "rock fall" signs located at various locations along Route 27 to warn
drivers proceeding on the roadway. Sheldon Beauty, County Maintenance Supervisor
for respondent in Brooke County, testified that this is an area that has rock falls
occasionally and that there are rock fall signs placed along the highway. Respondent
maintains that there was no prior notice of any rocks on Route 27 immediately prior to
the incident in question.
It is a well-established principle that the State is neither an insurer nor a guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va. 645,
46 S.E.2d 81 (1947). To hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of the
road defect at issue and a reasonable amount of time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8
(1985). In rock fall claims, this Court has held that the unexplained falling of a rock
onto a highway without a positive showing that respondent knew or should have known
of a dangerous condition posing injury to person or property is insufficient to justify an
award. Coburn v. Dept. of Highways, 16 Ct. Cl. 68 (1985).
In the present claim, claimant has not established that respondent failed to take
adequate measures to protect the safety of the traveling public on Route 27 in Brooke
County. Respondent has placed "falling rock" warning signs to warn the traveling
public of the potential for rock falls at this location. While the Court is sympathetic to
claimant's plight, the fact remains that there is no evidence of negligence on the 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 this claim.
Claim disallowed.
__________________
OPINION ISSUED MARCH 21, 2006
ROBERT V. CONNER
VS.
DIVISION OF HIGHWAYS
(CC-05-195)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 1997
Ford Explorer struck a piece of wood laying in the road while he was traveling west on
I-64 in Summers County, on the New River Bridge. I-64 is a road maintained by
respondent. The Court is of the opinion to deny the claim for the reasons more fully
stated below.
The incident giving rise to this claim occurred at approximately 9:35 p.m., on
February 24, 2005. Mr. Conner testified that it had just started to snow. I-64 is a four-
lane highway at the area of the incident involved in this claim. Claimant testified that
he was driving in his left lane of traffic while he was passing a tractor trailer. Mr.
Conner stated that while he was passing the tractor trailer he noticed a piece of wood
laying in the roadway. He testified that it appeared to be a four by four that was about
eight feet long. Mr. Conner was unable to avoid the piece of wood due to the tractor
trailer that he was passing. His vehicle struck the piece of wood, causing damage to two
rims and two wheels totaling $336.90.
The position of the respondent is that it did not have actual or constructive
notice of the condition on I-64 at the site of the claimant's accident for the date in
question.
Dale Hughart, Supervisor for the respondent along I-64 in Greenbrier, Raleigh,
and Summers County, testified that he had no knowledge of any pieces of wood in the road on I-64 on the exit New River Bridge. Mr. Hughart stated that the first time his
office became aware of the piece of wood was after claimant's accident. He stated that
one of respondent's drivers was treating this section of road every twenty-five minutes
on the night of claimant's accident. The driver did not see the debris in the road until
after claimant's accident. Mr. Hughart stated that the driver plowed the debris off of the
road when he first noticed it. Respondent had received no notice of any debris in the
road along this stretch of I-64 on the day of the incident in question.
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, a 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 instant case, the evidence established that the respondent did not have
actual or constructive notice of a piece of wood on I-64 on the New River Bridge prior
to the incident in question. Consequently, there is insufficient evidence of negligence
upon which to justify an award. Thus, the claimant may not make a recovery for his loss
in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED MARCH 21, 2006
NDC HEALTH CORPORATION
VS.
DIVISION OF REHABILITATION SERVICES
(CC-06-049)
Claimant appeared pro se.
Ronald R. Brown, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks $10,786.56 for providing services to respondent at the West
Virginia Rehabilitation Center. The documentation for these services was not processed
for payment within the appropriate fiscal year; therefore, claimant has not been paid.
In its Answer, respondent admits the validity of the claim as well as the amount, and
states that there were sufficient funds expired in the appropriate fiscal year from which
the invoice could have been paid.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $10,786.56.
Award of $10,786.56.
__________________
OPINION ISSUED MAY 23, 2006
JOHNSON NICHOLS FUNERAL HOME
VS.
DEPARTMENT OF HEALTH AND
HUMAN RESOURCES
(CC-05-463)
Claimant appeared pro se.
William P. Jones, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks payment in the amount of $ 1,250.00 for a burial performed
which was to be paid from respondent's Indigent Burial Fund. Respondent, in its
Answer, admits the validity of the claim, and further states that there were insufficient
funds in its appropriation for the fiscal year in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et al. vs. Dept. of
Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
__________________
OPINION ISSUED JULY 6, 2006
DOROTHY MERCER
VS.
DIVISION OF HIGHWAYS
(CC-02-085)
Eric S. Embree, Attorney at Law, for claimant.
Andrew F. Tarr and Xueyan Palmer, Attorneys at Law, for respondent.
SAYRE, JUDGE:
Claimant brought this action for property damage to her real estate which she
alleges occurred as a result of respondent's negligent maintenance of a drainage system.
Claimant's residence is located in Kanawha County. The Court is of the opinion to
make an award in this claim for the reasons more fully stated below.
Prior to the hearing of this claim, the Court granted claimant's Motion for
Partial Summary Judgment. In granting claimant's Motion, the Court found that the
drainage ditch along Hillcrest Drive was inadequate to carry the water from a ten-year
storm and the culvert that ran beneath Riverview Drive was also inadequate to carry a
ten-year storm. The issues heard at trial were notice on the part of the respondent of the
condition of the drainage system and the damages incurred by claimant as a result of the
excessive flow of water onto her property.
Claimant's property is adjacent to County Route 60/14, locally known as
Riverview Drive. County Route 160/25, locally known as Hillcrest Drive, intersects
with County Route 60/14 directly across from claimant's house. The incident giving
rise to this claim occurred on February 18, 2000. A heavy rainfall occurred on and just
prior to February 18, 2000, which resulted in part of claimant's basement wall collapsing which is the basis for the claim herein. Mrs. Mercer stated that on the date
of the incident, the culvert across the street from her house was clogged and filled with
water. The water flowed across the street and into her yard. She testified that she heard
a loud noise and went into her basement to find that the basement wall had collapsed.
Mrs. Mercer stated that sometime during the 1970's there had been some minor flooding
on her property and she made several telephone calls to respondent as a result. She
further testified that water had entered her yard in 1997 and again she made numerous
telephone calls to respondent regarding the flooding problem. As a result of the
flooding that occurred on February 18, 2000, Mrs. Mercer had to have the basement wall
rebuilt and the basement cleaned. Mrs. Mercer paid $29,000.00 for these services.
Claimant's furnace was also destroyed as a result of the flooding. Claimant paid
$593.50 to have the furnace replaced. Claimant also lost numerous items in the
basement including an antique Victrola, records, canned goods and a hot water tank.
Claimant's damages totaled over $30,000.00 as a result of the flood.
Gary Mercer, claimant's son, testified that the first flood occurred in the late
1970's. Mr. Mercer stated that at that time crews for respondent came to the site and
installed a culvert pipe under Riverview Drive. He stated that the next flooding
occurred in 1997, at which time respondent was called numerous times. Mr. Mercer
stated that respondent again cleaned the culvert across the street from his mother's
house.
Don Stalnaker, a Registered Professional Engineer, testified as an expert on
behalf of claimant. Mr. Stalnaker prepared a report for the contractor who made repairs
to Mrs. Mercer's house as to measures that should be taken to repair the basement wall
that was destroyed in the flooding. In the preparation of his report, Mr. Stalnaker
observed the flow of water from the culvert across the road and into Mrs. Mercer's yard.
Mr. Stalnaker testified that there was a sixteen-inch culvert that was or became clogged
which caused the water to leave the ditch and flow across the road. He stated that the
culvert was not adequate to handle the water that flowed through it on the date of the
incident.
The position of the respondent is that it did not have notice of a problem with
the drainage system along County Route 160/25 and County Route 60/14. County
Route 160/25 was taken into the state highway system through the Orphan Road
Program on August 17, 1999, approximately six months prior to the date of the incident
involved in this claim. The drainage system along County Route 160/25 was not
designed or built by respondent, but rather it was inherited by respondent when it was
taken into the State highway system. Doug Kirk, an hydraulics engineer for respondent,
testified that the ditch and culverts both should have been designed to carry the waters
of a ten-year storm. Mr. Kirk stated that the culvert is inadequate to carry the flow of
water from such a storm.
This Court has held that respondent has a duty to provide adequate drainage
of surface water, and drainage devices must be maintained in a reasonable state of
repair. Haught vs. Dept. of Highways, 13 Ct. Cl. 237 (1980). To hold respondent liable
for damages caused by an inadequate drainage system, claimant must prove that
respondent had actual or constructive notice of the existence of an inadequate drainage
system and a reasonable amount of time to take corrective action. Orsburn v. Div. of
Highways, 18 Ct. Cl. 125 (1991); Ashworth v. Div. of Highways, 19 Ct. Cl. 189 (1993).
In the present claim, the Court previously found that the drainage ditch along
Hillcrest Drive was inadequate to carry the water from a ten-year storm and the culvert
that ran beneath Riverview Drive was also inadequate to carry a ten-year storm. The
evidence established that respondent had installed the culvert pipe that ran beneath Riverview Drive during the 1970's and that it had been to the area after flooding on
claimant's property in 1997. In the opinion of the Court, the respondent had notice of
the inadequate drainage system but did not take corrective action. Although claimant
contacted respondent multiple times when flooding problems arose in the past;
respondent did not perform adequate measures to alleviate the problem. The Court is
of the opinion that respondent had constructive, if not actual, notice of the drainage
problem in the area and a reasonable amount of time to take corrective action.
Therefore, the Court has determined that respondent was negligent in its failure to
adequately protect claimant's property from excessive water flowing from the roads in
the area. Thus, claimant may make a recovery for the damages caused by the flooding
to her basement. The Court was provided with no evidence regarding the value of items
that claimant testified were in her basement at the time of the flooding. As the Court
will not speculate as to the value of any such items, the award to the claimant is limited
to the damage to the basement wall and the replacement of the furnace.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in the
amount of $29,593.50.
Award of $29,593.50.
__________________
OPINION ISSUED JULY 6, 2006
TRAVIS E. LONG
VS.
DIVISION OF HIGHWAYS
(CC-03-501)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
his vehicle striking a rock when he was traveling northbound on U.S. Route 220 near
Petersburg, Grant County. U.S. Route 220 is a road running through Grant County and
is maintained by respondent. 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 between 5:30 p.m. and 6:00 p.m.
on September 10, 2003, a clear and dry day. U.S. Route 220 is a two-lane road that is
marked at the location of claimant's accident as a "falling rock" area with a containment
fence along the road to keep rocks off of the highway. Claimant was proceeding on U.S.
Route 220 when he noticed a rock in his lane of traffic. Mr. Long testified that he was
unable to avoid the rock due to the traffic. He stated that the rock was approximately
seven inches long and six to seven inches tall. Mr. Long further testified that the
containment fence on the side of the road had been damaged for nearly one year,
allowing rocks to fall onto the highway. Claimant's vehicle struck the rock and
sustained damage to the transmission case totaling $839.13.
The respondent did not present any witnesses or evidence in this matter.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va. 645,
46 S.E.2d 81 (1947). To hold respondent liable, claimant must establish by a preponderance of the evidence that respondent had actual or constructive notice of the
road defect at issue and a reasonable amount of time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8
(1985). In rock fall claims, this Court has held that the unexplained falling of a rock
onto a highway without a positive showing that respondent knew or should have known
of a dangerous condition posing injury to person or property is insufficient to justify an
award. Coburn v. Dept. of Highways, 16 Ct. Cl. 68 (1985).
In the present claim, claimant has established that respondent failed to take
adequate measures to protect the safety of the traveling public on U.S. Route 220 in
Grant County. While respondent has placed "falling rock" warning signs to warn the
traveling public of the potential for rock falls at this location and a fence to prevent
rocks from falling into the roadway, the evidence established that the fence was
extensively damaged and had been so for some time. The respondent's actions on the
date of this incident were not adequate to protect the claimant from the rocks which
frequently fall in this area. Thus, the Court is of the opinion that respondent is liable for
the damages which flow from its inadequate protection of the traveling public.
However, at the hearing of this matter, the Court requested claimant to provide a copy
of his insurance declaration page to verify the amount of his insurance deductible.
Claimant has failed to provide his insurance declaration page for the Court to review.
Therefore, the Court is of the opinion to and does deny this claim.
Claim disallowed.
__________________
OPINION ISSUED JULY 6, 2006
RICKEY A. WRIGHT and BONNIE D. WRIGHT
VS.
DIVISION OF HIGHWAYS
(CC-04-074)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
1996 Jeep Grand Cherokee struck a hole while traveling on County Route 50/87, also
known as Emily Drive, in Clarksburg, Harrison County. County Route 50/87 is a road
maintained by respondent. The Court is of the opinion to make an award in this claim
for the reasons more fully stated below.
The incident giving rise to this claim occurred around 5:45 p.m. on February
9, 2004, a cold and clear day. County Route 50/87 is a four-lane highway at the area of
the incident involved in this claim. Claimant Bonnie Wright testified that she was
driving on County Route 50/87 when she saw the hole. Ms. Wright stated that the hole
was one to one-and-a-half feet wide and about six to eight inches deep. Claimants'
vehicle struck the hole sustaining damage to an onboard computer located over the right
front fender totaling $572.40. Claimants' insurance deductible was $500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on County Route 50/87 at the site of the claimant's accident for
the date in question.
Ronald Davisson, a Maintenance Supervisor for the respondent in Harrison County, testified that there had been some complaints regarding holes on County Route
50/87 in Clarksburg prior to the date of claimants' incident. Mr. Davisson stated that
there was a slip along County Route 50/87 in the area of claimants' incident that was
causing problems along the road. Respondent maintains that it had no actual or
constructive notice of the hole that claimants' vehicle struck on County Route 50/87.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimants' vehicle struck and that the hole
presented a hazard to the traveling public. The size of the hole and the location of the
hole in the road leads the Court to conclude that respondent had notice of this hazardous
condition and respondent had an adequate amount of time to take corrective action.
Thus, the Court finds respondent negligent and claimants may make a recovery for the
damage to their vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimants in this
claim in the amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED JULY 6, 2006
BERYL BEAL
VS.
DIVISION OF HIGHWAYS
(CC-04-222)
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
to by claimant and respondent wherein certain facts and circumstances of the claim were
agreed to as follows:
1. On April 1, 2004, claimant was traveling on Route 622 in Kanawha County,
when his vehicle struck a sewer line that extended up into the road, damaging the front
end of his vehicle.
2. Respondent was responsible for the maintenance of Route 622, which it
failed to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $994.89. Claimant's insurance deductible was $100.00.
4. Respondent agrees that the amount of $100.00 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Route 622 on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained to
claimant's vehicle; and that the amount of the damages agreed to by the parties is fair
and reasonable. Thus, claimant may make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the amount of $100.00.
Award of $100.00.
__________________
OPINION ISSUED JULY 6, 2006
JOHN R. SHOUP
VS.
DIVISION OF HIGHWAYS
(CC-04-570)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
his 2000 Dodge Neon striking debris in the road while he was traveling east on I-64,
Cabell County. I-64 is a road maintained by respondent. The Court is of the opinion
to deny the claim for the reasons more fully stated below.
The incident giving rise to this claim occurred between 2:00 p.m. and 3:00 p.m.
on August 31, 2004, a clear and sunny day. I-64 is a four-lane highway at the area of
the incident involved in this claim. Claimant testified that he was driving in his right
hand lane at between seventy and seventy-five miles per hour with traffic in front,
behind, and to his left. Mr. Shoup's vehicle struck a block that was larger than a brick
that he had not seen because of the vehicle in front of him. Claimant's vehicle sustained
damage to gas tank totaling $1,183.15. Claimant's insurance deductible was $500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on I-64 at the site of the claimant's accident for the date in
question.
Charlene Pullen, I-64 Supervisor, Section 1, for the respondent in Cabell
County, testified that she had no knowledge of any debris on I-64 near the site of
claimant's incident. Ms. Pullen stated that there had been no complaints of debris in the
road on the date of claimant's incident or for one week prior. Respondent had received
no notice of holes in the road along this stretch of I-64 on the day of the incident in
question or in the previous five days.
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, a 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 instant case, the evidence established that the respondent did not have
actual or constructive notice of debris on I-64 prior to the incident in question.
Consequently, there is insufficient evidence of negligence upon which to justify an
award. Thus, the claimant may not make a recovery for her loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED JULY 6, 2006
MARLYN STARCHER
VS.
DIVISION OF HIGHWAYS
(CC-04-942)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 2003
Ford Taurus struck holes in the road while he was traveling on Route 36 in Clay County.
Route 36 is a road maintained by respondent. The Court is of the opinion to make an
award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred around dusk on November 3,
2004, a clear evening. Route 36 is a two-lane highway at the area of the incident
involved in this claim. Claimant testified that he was driving on Route 36 when two
trucks approached his vehicle in the opposite lane. His vehicle then struck two holes in
the road. He stated that he had seen the holes previously but had been able to avoid
them on other occasions. Mr. Starcher testified that one of the holes was approximately
eighteen inches long and eight inches deep, while the other hole was one foot long and
four to six inches deep. Claimant's vehicle struck the holes sustaining damage to the
right front rim and tire and the right rear rim. Claimant's vehicle sustained damage
totaling $285.07.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 36 at the site of the claimant's accident for the date in
question.
Scott Samples, a Crew Supervisor for the respondent in Clay County, testified
that he had no knowledge of any holes on Route 36 in Clay County for the date in
question Respondent maintains that it had no actual or constructive notice of any holes
on Route 36.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the holes which claimant's vehicle struck, and that the holes
presented a hazard to the traveling public. The size of the hole and the location within
the roadway where claimant's incident occurred leads the Court to conclude that
respondent had notice of this hazardous condition and respondent had an adequate
amount of time to take corrective action. Thus, the Court finds respondent negligent and
claimant may make a recovery for the damage to her vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $285.07.
Award of $285.07.
__________________
OPINION ISSUED JULY 6, 2006
ROBERT M. HAMNER
VS.
DIVISION OF HIGHWAYS
(CC-05-256)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
his 2003 Ford F-250 truck striking a tree and rocks while he was traveling southbound
on Route 4 near Gassaway, Braxton County. Route 4 is a road maintained by
respondent in Braxton 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 at approximately 8:30 p.m. on
March 30, 2005, a rainy evening. Route 4 is a two-lane road that is marked at the
location of claimant's accident as a "falling rock" area with a speed limit of forty-five
miles per hour. Mr. Hamner was driving around forty-five miles per hour when a live
tree and rocks from the hillside adjacent to Route 4 fell into his lane of traffic. Claimant
stated that he had seen rock falls in this area previously. Claimant's vehicle struck the
tree and rocks and sustained damage to the front end of the vehicle totaling $1,324.48.
Claimant's insurance deductible was $100.00.
The position of the respondent was that it did not have notice of the rocks on
Route 4. Respondent admitted that the area in question is a rock fall area and stated that
there are "rock fall" signs located at various locations along Route 4 to warn drivers
proceeding on the roadway. Jack Belknap, Foreman for respondent in Braxton County,
testified that this is an area that has rock falls occasionally and that there are rock fall
signs placed along the highway. Mr. Belknap testified that his office did learn of the
trees and rock falling into the road, but it was only after the claimant's incident.
Respondent maintains that there was no prior notice of any rocks on Route 4
immediately prior to the incident in question.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va. 645,
46 S.E.2d 81 (1947). To hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of the
road defect at issue and a reasonable amount of time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8
(1985). In rock fall claims, this Court has held that the unexplained falling of a rock
onto a highway without a positive showing that respondent knew or should have known
of a dangerous condition posing injury to person or property is insufficient to justify an
award. Coburn v. Dept. of Highways, 16 Ct. Cl. 68 (1985).
In the present claim, claimant has not established that respondent failed to take
adequate measures to protect the safety of the traveling public on Route 4 in Braxton
County. Respondent has placed "falling rock" warning signs to warn the traveling
public of the potential for rock falls at this location. While the Court is sympathetic to
claimant's plight, the fact remains that there is no evidence of negligence on the 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 this claim.
Claim disallowed.
__________________
OPINION ISSUED JULY 6, 2006
DANIEL SMITH and VALERIE SMITH
VS.
DIVISION OF HIGHWAYS
(CC-05-361)
Claimants appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
1998 Ford Mustang struck a hole while claimant Valerie Smith was traveling on Jordan
Creek Road in Kanawha County. Jordan Creek Road is a road maintained by
respondent. The Court is of the opinion to make an award in this claim for the reasons
more fully stated below.
The incident giving rise to this claim occurred at approximately 3:00 p.m. on
July 4, 2005, a sunny day. Jordan Creek Road is a two-lane highway at the area of the
incident involved in this claim. Claimant Valerie Smith testified that she was driving
on Jordan Creek Road when her vehicle struck a hole in the road that she had not seen.
Mrs. Smith stated that the hole was about ten inches long and five to six inches deep.
Claimants' vehicle struck the hole sustaining damage to passenger side tires and rims.
Claimants' vehicle sustained damage totaling $500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Jordan Creek Road at the site of the claimant's accident for
the date in question.
David Fisher, Highway Administrator for the respondent in Kanawha County,
testified that he had no knowledge of any holes on Jordan Creek Road for the date in
question or the days immediately prior. Respondent maintains that it had no actual or
constructive notice of any holes on Jordan Creek Road.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimants' vehicle struck and that the hole
presented a hazard to the traveling public. The size of the hole and the time of the year
in which the incident occurred leads the Court to conclude that respondent had notice
of this hazardous condition and respondent had an adequate amount of time to take
corrective action. Thus, the Court finds respondent negligent and claimants may make
a recovery for the damage to their vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimants in this claim in the amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED JULY 6, 2006
HOMER J. ILSON III
VS.
DIVISION OF MOTOR VEHICLES
(CC-06-117)
Claimant appeared pro se.
Ronald R. Brown, Assistant Attorney General, for respondent
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks $155.00 for a title on a vehicle. The respondent did not process
the title of the vehicle in a timely manner.
In its Answer, respondent admits the validity of the claim and that the amount
is fair and reasonable. The Court is aware that respondent does not have a fiscal method
for paying claims of this nature; therefore, the claim has been submitted to this Court for
determination.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $155.00.
Award of $155.00.
__________________
OPINION ISSUED JULY 6, 2006
ARRETTA JANE WALKER
VS.
REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY
(CC-04-624)
Gerald R. Lacy, Attorney at Law, for claimant
Doren C. Burrell, Senior Assistant Attorney General, for respondent
PER CURIAM:
Claimant brought this claim to recover the value of certain personal property
items that she alleges were lost by the respondent. Claimant was arrested for driving
under the influence of alcohol in Kanawha County and transported to a regional jail.
When she was released various items of personal property that had been inventoried
were not returned to her. Claimant placed a value of $2,920.72 on her personal property.
At the hearing of the matter, respondent stipulated liability for all of claimant's
personal property and damages for a pair of shoes, a belt, a pair of silver earrings, a key
ring, a gold chain, a silver watch, and a black folder. These items were valued at
$152.00. The only issue before the Court was the valuation of three rings that were not
returned to the claimant. Ms. Walker testified that there was a six diamond ring that was
a gift from her mother, a ladies Black Hills ring with a diamond in a rose, and a mother's
ring with three simulated stones.
Richard Mitchell, a registered jeweler and manager at McCormick Jewelers,
testified that he often does ring valuations for insurance companies based on
descriptions of rings. He stated that he makes his estimates based on medium quality,
including such factors as eye clean, near colorless, and fourteen karat gold. Mr.
Mitchell estimated the six diamond ring to be valued at $2,114.70, the Black Hills ring
to be valued at $230.02, and the mother's ring at $424.00.
Respondent presented no testimony at the hearing of this matter.
This Court has held that a bailment exists when respondent records the personal
property of an inmate and takes it for storage purposes, and then has no satisfactory
explanation for not returning it. Page v. Division of Corrections, 23 Ct. Cl. 238 (2000); Heard v. Division of Corrections, 21 Ct. Cl. 151 (1997). In the present claim,
respondent has admitted that it took possession of claimant's personal property but did
not return the items to her. Respondent also admitted damages for the pair of shoes, a
belt, a pair of silver earrings, a key ring, a gold chain, a silver watch, and a black folder.
The Court finds that the values placed on claimant's rings by the expert witness were
fair and reasonable. Therefore, the Court is of the opinion to make an award to the
claimant for the value of her pair of shoes, a belt, a pair of silver earrings, a key ring, a
gold chain, a silver watch, a black folder, a six diamond ring, a ladies Black Hills ring
with a diamond in a rose, and a mother's ring with three simulated stones. The Court
is of the opinion that $2,920.72 represents a fair and reasonable reimbursement to
claimant for the lost property.
Accordingly, the Court is of the opinion to and does make an award to the
claimant in the amount of $2,920.72.
Award of $2,920.72.
__________________
OPINION ISSUED JULY 6, 2006
CHARLESTON CARDIOLOGY GROUP
VS.
DIVISION OF CORRECTIONS
(CC-06-121)
Claimant appeared pro se.
Charles P. Houdyschell Jr., Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks payment in the amount of $4,790.00 for medical services
rendered to inmates in the custody of respondent at Denmar Correctional Center, a
facility of the respondent. Respondent, in its Answer, admits the validity of the claim,
and further states that there were insufficient funds in its appropriation for the fiscal year
in question from which to pay the claim.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et al. vs. Dept. of
Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
__________________
OPINION ISSUED JULY 6, 2006
PHILLIP TERRY DELANEY
VS.
REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY
(CC-06-123)
John R. McGhee Jr., Attorney at Law, for claimant.
Ronald R. Brown, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant, an inmate at the Western Regional Jail, seeks $65.00 for items of
personal property that were entrusted to respondent. When claimant was transferred to
South Central Regional Jail, claimant's tennis shoes, which had been taken from him
upon his arrival, were unable to be located. Thus far, respondent's employees have been
unable to produce claimant's personal property.
In its Answer, respondent admits the validity of the claim and that the amount
is fair and reasonable. The Court is aware that respondent does not have a fiscal method
for paying claims of this nature; therefore, the claim has been submitted to this Court for determination.
This Court has taken the position in prior claims that when a bailment situation
is created, respondent is responsible for property of an inmate which is taken from that
inmate, remains in its custody, and is not produced for return to the inmate.
Accordingly, the Court makes an award to the claimant herein in the amount
of $65.00.
Award of $65.00.
__________________
OPINION ISSUED JULY 19, 2006
PUBLIC EMPLOYEES INSURANCE AGENCY
VS.
DIVISION OF CORRECTIONS
(CC-06-116)
B. Keith Huffman, General Counsel, for claimant.
Charles P. Houdyschell Jr., Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for an advisory determination based upon the
allegations in the Notice of Claim and respondent's Answer.
Claimant seeks $207,273.95 for providing health insurance coverage for
employees of the Anthony Correctional Center, a facility of the respondent State agency.
The agency failed to remit the premiums due for the health insurance coverage within
the appropriate fiscal years from 1997-2005; therefore, claimant has not been paid. In
its Answer, respondent admits the validity of the claim as well as the amount, and states
that there were sufficient funds expired in the appropriate fiscal years from which the
premiums could have been paid. Further, respondent requests this Court to consider the
claim in accordance with W.Va. Code §14-2-18 in order that the respondent be
authorized to make payment for the premiums in the current fiscal year of 2006.
The Court followed the statutory procedures for an advisory determination.
The Joint Committee on Government and Finance declined to consider this claim under
that statute.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $207,273.95.
Award of $207,273.95.
__________________
OPINION ISSUED JULY 31, 2006
LINDA BIRD, as ADMINISTRATRIX of the Estates of
EMZIE SOVINE and MILDRED SOVINE
VS.
DIVISION OF HIGHWAYS
(CC-04-232)
Claimants appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On April 4, 2004, claimant and her parents were traveling on the
Amandaville Bridge in Kanawha County when their vehicle struck a hole in the road
damaging a tire and rim.
2. Respondent was responsible for the maintenance of the Amandaville Bridge,
which it failed to maintain properly on the date of this incident.
3. As a result of this incident, the vehicle sustained damage in the amount of
$662.35. The insurance deductible was $250.00.
4. Respondent agrees that the amount of $250.00 for the damages put forth by
the claimants is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of the Amandaville Bridge on the date of this incident; that
the negligence of respondent was the proximate cause of the damages sustained to the
vehicle; and that the amount of the damages agreed to by the parties is fair and
reasonable. Thus, claimant, as Administratrix of the Estate, may make a recovery for
this loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $250.00.
Award of $250.00.
__________________
OPINION ISSUED JULY 31, 2006
MAKHOUL GHAREEB
VS.
DIVISION OF HIGHWAYS
(CC-04-481)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On May 26, 2004, claimant was traveling on I-64 near Charleston, Kanawha
County, when his vehicle struck standing water in the road damaging his vehicle.
2. Respondent was responsible for the maintenance of I-64, which it failed to
maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $5,100.00. Claimant's insurance deductible was $500.00
4. Respondent agrees that the amount of $500.00 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of I-64 on the date of this incident; that the negligence of
respondent was the proximate cause of the damages sustained to claimant's vehicle; and
that the amount of the damages agreed to by the parties is fair and reasonable. Thus,
claimant may make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED JULY 31, 2006
ANN B. TAO
VS.
DIVISION OF HIGHWAYS
(CC-04-482)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
her 2000 Honda Odyssey striking rocks when she was traveling westbound on Route 60
near Huntington in Cabell County. Route 60 is a road maintained by respondent in
Cabell 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 at approximately 5:00 p.m. on
April 16, 2004, a dry day. Route 60 is a four-lane road with a speed limit of forty-five
miles per hour in the area of claimant's incident. Ms. Tao was driving westbound in the
passing lane of Route 60 with a vehicle to her right when she noticed a large rock coming down the side of the mountain adjacent to the road. The rock bounced across
the road, part of it striking claimant's vehicle on the roof, part of it landing in front of
claimant's vehicle. Claimant's vehicle struck the rocks and sustained damage to the
front bumper, gas tank, left tire, grill and hood totaling $4,557.95. Claimant's insurance
deductible was $1,000.00.
The position of the respondent was that it did not have notice of the rocks
falling onto Route 60. Mike King, Highway Administrator for respondent in Cabell
County, testified that this is not an area that is prone to rock falls. He stated that the
hillside has a bench cut, which helps to prevent rock slides. Mr. King testified that he
was unaware of any rock falls occurring in this area. Respondent maintains that there
was no prior notice of any rocks on Route 60 immediately prior to the incident in
question.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va. 645,
46 S.E.2d 81 (1947). To hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of the
road defect at issue and a reasonable amount of time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8
(1985). In rock fall claims, this Court has held that the unexplained falling of a rock
onto a highway without a positive showing that respondent knew or should have known
of a dangerous condition posing injury to person or property is insufficient to justify an
award. Coburn v. Dept. of Highways, 16 Ct. Cl. 68 (1985).
In the present claim, claimant has not established that respondent failed to take
adequate measures to protect the safety of the traveling public on Route 60 in Cabell
County. The hillside along Route 60 is a bench cut. Further, respondent had no notice
of any danger of rock falls in the area. While the Court is sympathetic to claimants'
plight, the fact remains that there is no evidence of negligence on the 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 this claim.
Claim disallowed.
__________________
OPINION ISSUED JULY 31, 2006
RENA ROBINSON
VS.
DIVISION OF HIGHWAYS
(CC-04-631)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 2003
Dodge Durango struck a culvert while she was traveling on Summerlee Road in Fayette
County. Summerlee Road is a road maintained by respondent. The Court is of the
opinion to deny the claim for the reasons more fully stated below.
The incidents giving rise to this claim occurred on August 6, 2004, and
September 4, 2004, both sunny and dry days. Summerlee Road is a two-lane highway
at the area of the incidents involved in this claim. Claimant testified that she was
delivering mail to a mailbox along Summerlee Road. She stated that she had to drive
her vehicle off the road to her right side to deliver the mail. Ms. Robinson stated that
at 2358 Summerlee Road, approximately five to six feet away from the mailbox, was an
open culvert pipe. The culvert pipe ran underneath the driveway for the home at that
address. She testified that she knew it was there, but she could not avoid it on the dates
of the two incidents herein. Her vehicle struck the culvert pipe causing damage to the
right front tire on both occasions. The damage sustained totaled $268.08. Claimant's
insurance deductible was $250.00.
The position of the respondent is that it was not responsible for the culvert at
2358 Summerlee Road. Respondent cited to W.Va. Code º17-16-9 which provides that
owners or tenants of land fronting any state road shall construct and keep in repair all
approaches and driveways to any state road.
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, a 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 instant case, the evidence established that the respondent was not
responsible for the culvert that was located beneath a private driveway along Summerlee
Road. Thus, the claimant may not make a recovery for her loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED JULY 31, 2006
JANICE L. KINGERY
VS.
DIVISION OF HIGHWAYS
(CC-05-028)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On December 1, 2004, claimant was traveling on Deary Road in Salt Rock,
Cabell County, when her vehicle struck a hole in the road, damaging her vehicle.
2. Respondent was responsible for the maintenance of Deary Road, which it
failed to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $654.11.
4. Respondent agrees that the amount of $654.11 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Deary Road on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained to
claimant's vehicle; and that the amount of the damages agreed to by the parties is fair
and reasonable. Thus, claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $654.11.
Award of $654.11.
__________________
OPINION ISSUED JULY 31, 2006
LORI HUDNALL
VS.
DIVISION OF HIGHWAYS
(CC-05-035)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On October 21, 2004, claimant was traveling on Diary Road in Poca, Putnam
County, when her vehicle struck a hole in the road, damaging two tires and a rim
2. Respondent was responsible for the maintenance of Diary Road, which it failed to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $2,030.24. Claimant's insurance deductible was $500.00.
4. Respondent agrees that the amount of $500.00 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Diary Road on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained to
claimant's vehicle; and that the amount of the damages agreed to by the parties is fair
and reasonable. Thus, claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED JULY 31, 2006
TIMOTHY ALLEN HOLSTEIN
VS.
DIVISION OF HIGHWAYS
(CC-05-194)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On March 5, 2005, claimant was traveling on I-64 in Charleston, Kanawha
County, when his vehicle struck a rock in the road, damaging a tire and rim.
2. Respondent was responsible for the maintenance of I-64, which it failed to
maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $990.68. Claimant's insurance deductible was $500.00.
4. Respondent agrees that the amount of $500.00 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of I-64 on the date of this incident; that the negligence of
respondent was the proximate cause of the damages sustained to claimant's vehicle; and
that the amount of the damages agreed to by the parties is fair and reasonable. Thus,
claimant may make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED JULY 31, 2006
SAM MORRISON
VS.
DIVISION OF HIGHWAYS
(CC-05-374)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 1995
Ford van struck a tree limb hanging over the road while he was traveling on Route 31
in Cabell County. Route 31 is a road maintained by respondent. The Court is of the
opinion to deny the claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on August 4, 2005, a clear day.
Route 31 is a two-lane highway at the area of the incident involved in this claim.
Claimant testified that he was driving between thirty and thirty-five miles per hour when
his vehicle struck a branch that was hanging over the road. Mr. Morrison testified that
the branch looked like it had broken off a tree and was hanging down over the road. The
branch struck claimant's vehicle damaging the front windshield. The damage sustained
totaled $162.05.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 31 prior to claimant's incident. Neal Morrison, a
transportation crew supervisor for respondent in Cabell County, testified that there had
been a telephone call to respondent on August 4, 2005, regarding a branch over the road
on Route 31. Crews for respondent responded shortly after this telephone call at
approximately 3:30 p.m. Mr. Morrison stated that crews are normally sent out to
remove trees and branches as soon as possible after receiving notice of it in the road.
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, a 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 Court, having reviewed the record in this claim, has determined that
respondent was not negligent in its maintenance of Route 31 on the date of claimant's
incident. Respondent received notice of a branch in the road and responded in a timely
manner. Therefore, the Court cannot find liability on the part of respondent in this claim
and the claimant may not make a recovery for his loss.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED JULY 31, 2006
RHONDA NEAL
VS.
DIVISION OF HIGHWAYS
(CC-05-435)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 2002
Dodge Neon struck a piece of a tire that was in the road while she was traveling
westbound on I-64 near Barboursville, Cabell County. I-64 is a road maintained by
respondent. The Court is of the opinion to deny the claim for the reasons more fully
stated below.
The incident giving rise to this claim occurred at approximately 6:30 p.m. on
November 15, 2005, a clear evening. I-64 is a four-lane highway at the area of the
incident involved in this claim. Claimant testified that she was driving at approximately
seventy miles per hour when the vehicle in front of her struck something in the road.
The object came back and struck her vehicle. Ms. Neal testified that she looked in the
rear view mirror after her vehicle struck the object and saw that it was a piece of a
tractor trailer tire. The tire struck claimant's vehicle damaging the front hood. The
damage sustained totaled $1,503.50. Claimant's insurance deductible was $500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on I-64 prior to claimant's incident. Charlene Pullen, Supervisor
for respondent responsible for I-64, Section 1, testified that there had been no notice of
a tire in the road on the date of claimant's incident. Ms. Pullen stated that there is one
employee for respondent that travels the stretch of I-64 that her office is responsible for
every day to remove any debris in the roadway. She also stated that after normal work
hours, her office can be notified by police or emergency services of objects in the road
and that she will then be contacted. Respondent maintains that it had no notice of a tire
in the road prior to claimant's incident.
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, a 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 instant case, the evidence established that respondent did not have actual
or constructive notice of a tire in the road on I-64 prior to the incident in question.
Consequently, there is insufficient evidence of negligence upon which to justify an
award. Thus, the claimant may not make a recovery for her loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED JULY 31, 2006
WOODROW W. VANCE
VS.
DIVISION OF HIGHWAYS
(CC-06-053)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 1993
Chevrolet Silverado truck struck a hole in the road while he was traveling on Route 41
near Persinger, Nicholas County. Route 41 is a road maintained by respondent. The
Court is of the opinion to make an award in this claim for the reasons more fully stated
below.
The incident giving rise to this claim occurred at approximately 5:30 p.m. on
January 19, 2006, a clear evening. Route 41 is a two-lane highway at the area of the
incident involved in this claim. Claimant testified that he was driving on Route 41, and
there was also traffic traveling towards him. Mr. Vance stated that he had seen the hole
previously but had been able to avoid it on other occasions. He testified that the hole
was along the white line on the edge of the road and that there were no warning signs.
Claimant stated that due to the traffic towards him, he was unable to avoid the hole.
Claimant's vehicle struck the hole sustaining damage to a tire, rim, shock, and pivot
arm. Claimant's vehicle sustained damage totaling $588.60.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 41 at the site of the claimant's accident for the date in
question.
John Jarrell, Highway Administrator 2 for the respondent in Nicholas County,
testified that respondent was involved with snow and ice removal around the date of
claimant's incident. Mr. Jarrell stated that sometime during the month of January his
office received a telephone call from the sheriff's department regarding a hole along
Route 41, but he could not remember when this happened. He also stated that Route 41
has heavy coal and log truck traffic on it. Respondent maintains that it had no actual or
constructive notice of any holes on Route 41.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's vehicle struck and that the hole
presented a hazard to the traveling public. Photographs in evidence depict the hole and
provide the Court an accurate portrayal of the size and location of the hole on Route 41.
The size of the hole and its location on the roadway leads the Court to conclude that
respondent had notice of this hazardous condition and respondent had an adequate
amount of time to take corrective action. Thus, the Court finds respondent negligent and claimant may make a recovery for the damage to his vehicle. However, the Court
additionally finds that claimant was also negligent in this incident, since he knew of the
hole previously and he could have taken other measures to avoid or attempt to avoid this
hole. Therefore, the Court finds claimant was twenty-five (25) percent negligent in this
claim, and thus he may recover seventy-five (75) percent of his damages.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $441.45.
Award of $441.45
__________________
OPINION ISSUED JULY 31, 2006
AT&T
VS.
DIVISION OF CORRECTIONS
(CC-06-179)
Claimant appeared pro se.
Charles P. Houdyschell Jr., Senior Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks payment in the amount of $152.50 for long distance telephone
service provided in April 2001 for Huttonsville Correctional Center, a facility of the
respondent. Respondent, in its Answer, admits the validity of the claim, but states that
there were insufficient funds in its appropriation for the fiscal year in question from
which to pay the invoice; therefore, no payment was made.
While the Court believes that this is a claim which in equity and good
conscience should be paid, the Court further believes that an award cannot be
recommended based upon the decision in Airkem Sales and Service, et al. vs. Dept. of
Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed.
__________________
OPINION ISSUED SEPTEMBER 28, 2006
JEROMEY CHAD BELLER
VS.
DIVISION OF HIGHWAYS
(CC-04-291)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On April 19, 2004, claimant was a passenger in a vehicle operated by Ronnie
Lee Williams traveling on County Route 3/4 in Raleigh County, when they were
involved in an accident along County Route 3/4.
2. Respondent was responsible for the maintenance of County Route 3/4, which
it was found to have failed to maintain properly on the date of this incident in a separate
action styled Ronnie Lee Williams and Tina Williams v. Division of Highways, (CC-04-
278).
3. As a result of this incident, claimant and respondent have agreed to settle
this claim for the total sum of twelve thousand five hundred dollars ($12,500.00) for the
claimant's out-of-pocket medical expenses and for pain and suffering claimant incurred
as a result of injuries he suffered in this accident.
The Court has reviewed the facts of the claim and finds that respondent was negligent in its maintenance of County Route 3/4 on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained by claimant;
and that the amount of the damages agreed to by the parties is fair and reasonable. Thus,
claimant may make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $12,500.00.
Award of $12,500.00.
__________________
OPINION ISSUED SEPTEMBER 28, 2006
MARLENE MIDDLETON,
dba THE CUTTING EDGE
VS.
DIVISION OF HIGHWAYS
(CC-04-337)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for property damage to her real estate which she
alleges occurred as a result of respondent's negligent maintenance of a drainage system.
Claimant's property is adjacent to County Route 61/24, locally known as Armstrong
Creek Road and County Route 61/46, locally known as Post Office Road, in Kimberly,
Fayette County. The Court is of the opinion that there is liability on the part of
respondent in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred in May of 2003. A heavy
rainfall occurred which resulted in flooding in the building on claimant's property,
which is the basis for the claim herein. Ms. Middleton asserts that at some time prior
to May of 2003, respondent had paved the parking lot for the Kimberly Post Office.
Claimant alleges that it was this action by respondent that channeled more water onto
her property, as the water from the parking lot now flowed down County Route 61/46,
and along the back of the building on her property. Ms. Middleton stated that County
Route 61/46 slopes towards her building and that the water has no where to go but to the
back of her building. She testified that the grade of County Route 61/46 was previously
lower than her building, but that it has been built up over the years by respondent so that
the building is now lower than the level of the road. Claimant testified that respondent
also came out and built a berm along the side of County Route 61/46 adjacent to her
building, but that it had been flattened near her property and water still collected at the
back of her building. Ms. Middleton stated that her family has owned this property for
thirty years, and that the flood in May of 2003 was the only flood there had been on that
property. She stated that during the flood there was damage done to carpeting, the floor,
a computer, and clothing that had been prepared by The Cutting Edge business. As a
result of the flooding on her property, claimant alleged damages but the amount of
damages has yet to be determined.
The position of the respondent is that it was not negligent in the maintenance
of the drainage system on County Route 61/46. Danny Hypes, Crew Foreman for
respondent in Fayette County, testified that the first time his office became aware of a
problem at claimant's property was when the claimant made telephone calls to his office
about the flooding. Mr. Hypes testified that his office received a telephone call from
claimant on May 13, 2003. A drop inlet and culvert pipe were placed in front of
claimant's property and under County Route 61/24 in June of 2004, as a result of this
complaint. He stated that as a result of a telephone call from claimant on May 22, 2003,
crews for respondent put a gravel berm down the side of county Route 61/46 furthest
from claimant's property. Mr. Hypes testified that there were telephone calls
complaining about vehicles scraping their bottoms on this berm while pulling into the
Kimberly Post Office parking lot, and as a result of these complaints, respondent placed
an asphalt berm on the side of the road adjacent to claimant's property.
Doug Kirk, an hydraulics engineer for respondent, conducted an on-site
inspection of claimant's property. Mr. Kirk stated that the claimant's building is lower
than all of the surrounding ground and is on a concrete slab at the existing ground level.
He stated that the structure is built in a low area and that the floor elevation was built lower than any other building in the area. He also stated that the roof drains for the
building drain directly to the ground adjacent to the property, further contributing to the
amount of water that collects at the back of the building.
The position of the respondent is that it was not negligent in its maintenance
of the drainage system for County Route 61/46 and both the property's location in a low
area and the building's roof drains contributed to the claimant's flooding problem.
This Court has held that respondent has a duty to provide adequate drainage of
surface water, and drainage devices must be maintained in a reasonable state of repair.
Haught vs. Dept. of Highways, 13 Ct. Cl. 237 (1980). In claims of this nature, the Court
will examine whether respondent negligently failed to protect a claimant's property from
foreseeable damage. Rogers vs. Div. of Highways, 21 Ct. Cl. 97 (1996).
In the present claim, claimant established that respondent had paved the
Kimberly Post Office Parking lot. The paving of this lot cast water from both the lot and
County Route 61/46 onto claimant's property. While respondent did install an asphalt
berm along County Route 61/46, this did not remedy the situation due to the alley
directly behind claimant's property. The Court concludes from all the testimony and
evidence that prior to respondent paving the post office parking lot, claimant's property
did not have a problem with flooding. Thus, the Court is of the opinion that the
respondent is liable for the damages which proximately flow from its inadequate
protection of claimant's property from foreseeable damage, and further that respondent
is liable for the damages to claimant's property.
In accordance with the findings of fact and the conclusions of law stated herein
above, the Court hereby directs the Clerk of the Court to place this claim on the docket
for a hearing on the matter of damages.
__________________
OPINION ISSUED SEPTEMBER 28, 2006
MIGHTY MITE CORPORATION
and
FRANKLIN GROGG and RHODA GROGG
VS.
DIVISION OF HIGHWAYS
(CC-04-382 and CC-04-383)
Walter L. Wagner, Jr., Attorney at Law, for claimants.
Andrew F. Tarr and Xueyan Palmer, Attorneys at Law, for respondent.
SAYRE, JUDGE:
Claimants Mighty Mite Corporation and Franklin Grogg and Rhoda Grogg
brought actions for property damage to their real property, which claimants allege
occurred as a result of respondent's negligent construction of a bridge. Mighty Mite
Corporation's (hereinafter referred to as Mighty Mite) property and the Groggs'
residence are adjacent to U.S. Route 35 in St. Albans, Kanawha County and are on
either side of Tackett's Creek, which flows beneath a bridge on U.S. Route 35. The
present bridge on U.S. Route 35 is three lanes wide and was constructed by the
Respondent in 1992, replacing a two-lane bridge that had been constructed in 1924.
These claims were consolidated for hearing since they arose from the same occurrence.
The Court is of the opinion to deny the consolidated claims for the reasons more fully
stated below.
The incident giving rise to these claims occurred on May 28, 2004. A heavy
rainfall occurred on that date which resulted in flooding in the basements of both
properties. Gregory Humphreys, President of Mighty Mite, stated that he had purchased
the Mighty Mite property in 1997 and that the only other time that that property had
flooded since then was on November 18, 2003. Mr. Humphreys testified that the
flooding at issue occurred on May 28, 2004 between 11:00 pm. and 12:00 midnight. He
stated that he had been at home when the rain started but that he became worried about
the possibility of the property flooding again. Mr. Humphreys drove to the property
with a neighbor, James Cable. Mr. Cable testified that he and Mr. Humphreys arrived
at the property around 11:00 p.m. and that the water was just rising to the level of Route
35. Mr. Humphreys was in the basement of Mighty Mite's building trying to retrieve
important documents, computer equipment, and other items to take these out of the
building when the water started to flow into the building. He testified that there was approximately six feet of water in the basement when the flooding stopped. Mr.
Humprheys stated that by midnight the level of Tackett's Creek, which normally is
about one foot deep, was up as high as approximately five feet on the upstream wall of
the U.S. Route 35 bridge. Mr. Humprheys previously had built a three foot high wall
between this property and Tackett's Creek after the November 2003 flood and this wall
extended to the right of way of U.S. Route 35. He testified that during the May 28,
2004 flood the water went over and around this wall. He stated that there was water on
U.S. Route 35, but at its highest point it still did not flow all the way across the road.
Mr. Humphreys also had three storage buildings constructed on this property, each of
which contained a number of storage units. There was approximately three or four feet
of water inside these storage buildings. Mr. Humphreys testified that there was no
flooding downstream from the bridge.
The Grogg's residence is located on the opposite side of the creek from the
Mighty Mite property. Mr. Grogg testified that he and Rhoda Grogg, his wife,
purchased the residence in 2002. He stated that on the night of the flooding incident
herein, the water stayed in the creek bed until it rose to the bottom of the bridge. At that
time, the water started flowing to either side of the creek bed onto his property and that
of Mighty Mite. Mr. Grogg testified that his basement also flooded due to this incident,
reaching as high as eight inches.
Samuel Wood, a Registered Professional Engineer, testified as an expert on
behalf of the claimants. Mr. Wood initially came out to inspect the Mighty Mite
building after the 2003 flood and he returned after the flood involved in this claim. Mr.
Wood observed substantial foundation cracking on the Mighty Mite property, which was
a direct result of flooding and flowing water pressure against the rear foundation of the
building. After his first inspection, Mr. Wood had recommended that the block
foundation wall of Mighty Mite's building be reinforced to bring it into current
structural standards. Mr. Wood stated that Mr. Humphreys had tried to deal with the
damage by placing a retaining wall, but that this wall would have had to extend into the
middle of U.S. Route 35 to have been effective. Mr. Wood testified that it appeared to
him that the bridge on U.S. Route 35 had caused a back flow that resulted in flooding
upstream of the bridge onto the area where claimants' properties are located. He stated
that the lack of adequate flow cross-sectional area under the bridge and the high outside
curve elevation of U.S. Route 35 compounded to allow flooding of the properties. Mr.
Wood testified that the orientation of the bridge, the super elevation of the road, and the
fact that as a consequence the bridge deck surface was higher on the downstream side
of the bridge, caused the water to back flow to the upstream side of the bridge flooding
both Mr. Humphreys' and Mr. Grogg's properties. Mr. Wood stated that the water does
flow through the opening under the bridge, but that the amount of flow through it was
his main concern. He observed that the bottom of the bridge was approximately three
feet lower than the road elevation. Mr. Wood testified that according to the design plans
for the bridge, the actual upstream side of the bridge was approximately 1.4 feet lower
than the design specifications indicated. He stated that the opening of the bridge was
therefore one hundred sixty square feet rather than two hundred nineteen square feet as
would have been provided by the original design specifications. Mr. Wood stated that
because the bridge as constructed was lowered and the open area is limited to one
hundred sixty square feet, a restriction of that opening would allow for excess water to
back-up and flow behind the bridge on the upstream side of the bridge. He testified that
his main concern was with the elevation of the bridge in that it increased the resistance
of the flow of water by lowering the opening and making the cross-sectional square
footage smaller. Mr. Wood admitted on cross examination that, regardless of the
elevation of the bridge, a greater amount of water is able to flow through the opening
under the 1992 bridge than was able to flow through the opening under the 1924 bridge.
The position of the respondent is that the bridge constructed over Tackett's
Creek on U.S. Route 35 in 1992 met all the standards for such bridges at the time of its
construction and that the bridge substantially improved the flooding situation in the area
of the bridge. Respondent also contends that the regardless of whether the bridge is
there or not, both claimants' properties are in a flood plain area and will experience
periodic flooding. Chet Burgess, County Highway Administrator for the respondent in
Kanawha County, testified that on the date of the incident involved in these claims there
had been no notice of high water near the bridge over Tackett's Creek on U.S. Route 35.
Mr. Burgess stated that there were crews out on the night of this flood for high water,
but that they were not in the area of Tackett's Creek. He further stated that he was not aware of any instances of water over the road in this location.
Ray Lewis, a Registered Professional Engineer who is a staff engineer for
Traffic Engineering with respondent, testified that he developed the project for the new
bridge at Tackett's Creek on U.S. Route 35. He stated that in developing his plan for
the new bridge, he studied traffic conditions, traffic data, accident data, traffic counts,
among other things, to try to come up with a plan to make the road operate as safely and
efficiently as possible. Mr. Lewis stated that the old bridge was approximately twenty
feet long with vertical abutments which are the concrete walls that support the bridge.
He testified that this bridge included a 6% (six percent) super elevation due to the
curvature of the road. Mr. Lewis stated that super elevation is the banking put on a
curve which makes it easier for a driver to drive around a curve and keep a vehicle on
the roadway. As part of this bridge replacement project, the designers decided to do a
full bridge replacement with a larger structure. Mr. Lewis also testified that as part of
the project there was a channel improvement, where the creek bed underneath the bridge
was regraded and rip-rapped, which was done to ease the flow under the bridge and
make the channel more efficient. He stated that the new bridge has a larger water way
opening than the one that it replaced. The 1992 bridge has a thirty-five foot span.
Doug Kirk, an hydraulics engineer for respondent, prepared a report to
determine whether or not the bridge over Tackett's Creek on U.S. Route 35 met the
standard of care for replacing the former bridge at the time the new bridge was
constructed. Mr. Kirk testified that the new bridge is a three-lane bridge forty-eight feet
wide with a free span of thirty-five feet. The free span of the 1924 bridge was
approximately twenty feet wide. He testified that the super elevation of the bridge is six
percent which is consistent with a forty miles-per-hour design speed. Mr. Kirk stated
that super elevation should slope toward the inside of the curve with the outside of the
curve being the high side and the inside of the curve being the low side. He testified that
the only way the bridge could have been designed without super elevation would have
been to straighten the road. Mr. Kirk further testified that U.S. Route 35 is a trunk line
according to the West Virginia Division of Highways Drainage Manual, which means
that the road should be serviceable for a fifty year storm. Also, according to the West
Virginia Division of Highways Drainage Manual, the 1992 bridge should not cause
additional back water as compared to the 1924 bridge. Mr. Kirk described back water
as an increase in the water surface elevation upstream of any structure, whether it be a
bridge or a wall built along the stream that affects upstream properties.
Mr. Kirk prepared a hydraulic analysis of the new bridge to compare with the
old bridge. In doing so, he looked at cross sections of the stream, determining how deep
and how wide the flood plains are, what obstructions are on the flood plain, the depth
and span of the bridge and roadway approaches, and anything that would affect the flow
of the water. Mr. Kirk stated that he looked at cross sections immediately upstream of
the bridge because if the bridge were causing a problem, these areas would be the most
severely affected. He further stated that he did comparisons of the new and the old
bridge for ten, twenty-five, fifty, and one hundred year floods. In each of the floods, the
new bridge would have lowered the water surface elevation as compared to that of the
old bridge at sixty feet upstream of the bridge, the area that would most drastically affect
claimants' properties, for a ten, twenty-five, fifty, and one hundred year flood. Mr. Kirk
testified that in his analysis the new bridge reduced the flooding in the area of the
subject properties for each flood. According to his findings, the new bridge constructed
by respondent lowered the water surface elevation which, in turn, reduced any potential
flooding to the property on the upstream side of the bridge. Thus, claimants' properties
were protected from flooding to a greater extent due to the construction of the new
bridge.
On prior occasions, this Court has held that respondent may be held liable for
the condition posed by a bridge. Malone v. Division of Highways, 23 Ct. Cl. 216 (2000).
Respondent has an obligation to construct bridges in such a manner as not to create a
subsequent flood problem for nearby property owners. Daniels v. Dept. of Highways,
16 Ct. Cl. 43 (1986).
However, in each of the prior opinions reviewed by this Court, where an award
was made the bridge in question was erected at a site not previously spanned by a public
roadway. Here the facts are otherwise. The reality is that not only West Virginia but
every state has a substantial number of bridges constructed in 1924 or earlier. This
Court is not prepared to hold that the respondent has either a legal or a moral obligation
to replace all of those very old bridges that may create a damming effect or otherwise
impede the free flow of water during a major flood. Given the fact that in many such cases the watershed upstream of the bridge is constantly being altered and "improved,"
without any foreseeable relief from this kind of activity, such a ruling would make the
State a moving target for property damage claims in this Court. A view of the site of the
subject claims leads the Court to conclude that none of the structures belonging to the
claimants herein in 2004 existed in 1924. What would be the liability of the State for
these claims had the 1924 bridge not been replaced in 1992?
The question presented by these claims is rather: What obligation does the State
have where, as here, the respondent in fact does replace one of these old bridges? We
think that the respondent must construct such a replacement bridge in such a manner as
not to create any new flood problems that did not exist before. Daniels v. Dept. of
Highways, Id.
The claimants make much of the fact that the replacement bridge was super
elevated and could have been constructed so that the bridge was higher than it is,
creating a larger upstream opening and thus allowing for a greater flow of water.
The 1924 bridge, like the 1992 bridge, was super elevated on the downstream
side. This was in 1924 and in 2006 continues to be necessary, given the fact that U.S.
Route 35 at the site of the bridge is in a curve and, in any case, we fail to see where the
elevation of the downstream side of the bridge is material to the issues in the claims.
The open area under the upstream side of the 1924 bridge was 120 square feet.
That opening under the 1992 bridge is 160 square feet. In addition, the creek bed
underneath the bridge was regraded and rip-rapped in 1992, which was done to ease the
flow of water under the bridge.
Further, the expert witness called by the claimants, Samuel Wood, conceded
that the respondent had improved the flow of water that could pass under the bridge
during flood conditions. Thus the facts presented indicate that the flooding of the
claimant's properties on May 28, 2004, would have been worse, not better, had the 1924
bridge been in place.
In accordance with these findings of fact and conclusions of law, the Court is
of the opinion to and does deny these claims.
Claims disallowed.
__________________
OPINION ISSUED OCTOBER 25, 2006
CITIZENS TELECOMMUNICATIONS COMPANY OF WV,
dba FRONTIER COMMUNICATIONS OF WV
VS.
SUPREME COURT OF APPEALS
(CC-05-096)
Kenneth E. Tawney, Attorney at Law, for claimant.
J. Kirk Brandfass, General Administrative Counsel, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks $2,553.62 plus interest for providing telephone services to
respondent for which respondent did not remit payment of the Universal Service Fund
charges at the time the invoices were rendered. In a Stipulation filed by the parties the
respondent admits validity of the claim and that the parties agreed that respondent is due
the amount of $2,553.62 plus interest as provided in the contract. Respondent also states
that there were sufficient funds expired in the appropriate fiscal year from which the
charges could have been paid.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of $2,553.62, but the Court denies any portion of the claim for
interest since this was not a part of the award in the claim which is the precedent for the
issue in the instant claim. See AT&T Corporation v. Dept. of Administration, Claim No.
CC-04-879, Opinion Issued April 27, 2006.
Award of $2,553.62.
__________________
OPINION ISSUED OCTOBER 25, 2006
HARRY W. SMITH JR.
VS.
DIVISION OF HIGHWAYS
(CC-05-254)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for property damage to his real estate which he
alleges occurred as a result of respondent's negligent maintenance of its roads.
Claimant's residence is located in Wayne County. The Court is of the opinion to deny
the claim for the reasons more fully stated below.
Claimant's property is adjacent to Route 924, locally known as Mill Branch
Road and Moore Road. Mr. Smith had a fence on his property that was located adjacent
to Moore Road. The fence was damaged by large trucks and mobile homes traveling
around a curve from Moore Road onto Mill Branch Road that was not wide enough for
vehicles of this size to make the turn. The vehicles struck claimant's fence on several
occasions causing damage. Mr. Smith stated that respondent never placed a sign in the
area of his residence warning about the size of vehicles that could navigate this curve.
He testified that respondent had purchased a home across the street from his residence
in 2004 and had cut some of the bank, enabling trucks to make the turn without
damaging his fence. Mr. Smith stated that he was not aware of which vehicles struck
and damaged his fence. He further stated that he contacted respondent regarding this
situation in 2003 or 2004. Claimant sustained damages totaling approximately $700.00.
His home owners insurance deductible was $500.00.
The position of the respondent is that it is not the proper party in this action as
the proper defendant would be the owner(s) or driver(s) of the vehicle(s) which struck
the claimant's fence.
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, a 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 instant case, the evidence established that the respondent did cause
damage to claimant's property. Consequently, there is no evidence of negligence upon
which to justify an award. Thus, the claimant may not make a recovery for his loss in
this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED OCTOBER 25, 2006
JOYCE PENNINGTON and LARRY PENNINGTON
VS.
DIVISION OF HIGHWAYS
(CC-05-255)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent
PER CURIAM:
Claimants brought this action for vehicle damage which occurred as a result of
their 2002 Ford Escort striking a rock while traveling westbound on Route 50 in
Harrison County. Route 50 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 at approximately 8:30 p.m. on
March 27, 2005, a rainy evening. Route 50 is a four-lane road at the location of
claimants' accident. Ms. Pennington testified that she was driving in her right lane at
approximately fifty-five to sixty miles per hour due to the wet conditions when she saw a large rock in her lane of travel. She stated that she attempted to miss the rock but she
could not avoid it. Claimants' vehicle struck the rock and sustained damage to the
passenger side rear rim totaling $101.38.
The position of the respondent was that it did not have notice of the rock on
Route 50 prior to claimants' incident. Paul Lister, an Investigator for respondent,
testified that he was unable to find any reports of rock falls in the area of the incident
herein prior to or on the date of this incident. He further testified that there are no areas
along this section of Route 50 that are marked as rock fall areas.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va. 645,
46 S.E.2d 81 (1947). In rock fall claims, this Court has held that the unexplained falling
of a rock onto a highway without a positive showing that respondent knew or should
have known of a dangerous condition posing injury to person or property is insufficient
to justify an award. Coburn v. Dept. of Highways, 16 Ct. Cl. 68 (1985).
In the present claim, claimants have not established that respondent failed to
take adequate measures to protect the safety of the traveling public on Route 50 in
Harrison County. While the Court is sympathetic to claimants' plight, the fact remains
that there is no evidence of negligence on the 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 this claim.
Claim disallowed.
__________________
OPINION ISSUED OCTOBER 25, 2006
DONNIE L. SHAW
VS.
DIVISION OF HIGHWAYS
(CC-05-290)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimants and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On June 25, 2005, a large rock fell into a drainage ditch along Camp Run,
in Doddridge County, causing water to wash out a tunnel underneath claimant's
property. A horse that was grazing on the property fell into the tunnel and died.
2. Respondent was responsible for the maintenance of Camp Run which it
failed to maintain properly on the date of this incident.
3. As a result of this incident, claimant's horse was killed. Claimant valued
his horse at $2,000.00.
4. Respondent agrees that the amount of $2,000.00 for the damages put forth
by the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Camp Run on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained to claimants
horse; and that the amount of the damages agreed to by the parties is fair and reasonable.
Thus, claimant may make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $2,000.00.
Award of $2,000.00.
__________________
OPINION ISSUED OCTOBER 25, 2006
MELISSA GAIL WILLIAMS
VS.
DIVISION OF HIGHWAYS
(CC-05-312)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On June 21, 2005, claimant was traveling on the entrance ramp to I-64 from
Route 119 in Charleston, Kanawha County, when her vehicle struck an open lid to the
wires to the street lights in the road, damaging a tire and rim.
2. Respondent was responsible for the maintenance of the entrance ramp to I-
64, which it failed to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $529.50. Claimant's insurance deductible was $500.00.
4. Respondent agrees that the amount of $500.00 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of the entrance ramp to I-64 from Route 119 on the date of
this incident; that the negligence of respondent was the proximate cause of the damages
sustained to claimant's vehicle; and that the amount of the damages agreed to by the
parties is fair and reasonable. Thus, claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED OCTOBER 25, 2006
JAMES ROBINSON and ANNE ROBINSON
VS.
DIVISION OF HIGHWAYS
(CC-06-079)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage and property damage which
occurred when a tree fell onto their property adjacent to Long Run/Greenwood Road,
in Greenwood, Doddridge County. Long Run/Greenwood Road is a road maintained
by respondent. The Court is of the opinion to deny the claim for the reasons more fully
stated below.
The incident giving rise to this claim occurred the morning of September 27,
2005, a clear and calm day. Long Run/Greenwood Road is a two-lane highway at the
area of the incident involved in this claim. James Robinson testified that a tree that was
on both his property and respondent's right of way fell and damaged two of their
vehicles, a jungle gym, and a trampoline. He stated that the tree appeared to be a live
tree prior to falling. Mr. Robinson testified that it was only after the tree fell over that
it was discovered that the tree was decayed on the inside. Claimants' home owners
insurance deductible was $500.00 and the vehicle's insurance deductibles were $50.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Long Run/Greenwood Road at the site of the claimant's
accident for the date in question. Charles Richards, Highway Administrator for
respondent in Dodridge County, testified that he had no information about the tree that
fell onto claimants' property prior to the incident . Mr. Richards stated that the tree was
on the edge of respondent's right of way and that it appeared to be a live tree prior to
falling.
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). The general rule of this Court with regard
to tree fall claims is that if a tree is dead and poses an apparent risk, then the respondent
may be held liable. However, when an apparently healthy tree falls and causes property damage as a result of a storm, the Court has held that there is insufficient evidence of
negligence upon which to justify an award. Wiles v. Division of Highways, 22 Ct. Cl.
170 (1998); Gerritsen v. Dept. of Highways, 16 Ct. Cl. 85 (1986).
In the instant case, the Court is of the opinion that respondent had no notice that
the tree at issue posed an apparent risk to the public. The evidence adduced at the
hearing established that the tree appeared to be a healthy tree. Neither claimants nor
respondent had reason to believe that the tree was in danger of falling. Thus, the
claimants may not make a recovery for their loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED NOVEMBER 20, 2006
ROBERT A. ALLEN and JESSICA B. ALLEN
VS.
DIVISION OF HIGHWAYS
(CC-05-236)
Claimants appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
2003 Dodge Durango struck a loose man hole cover while claimant Robert A. Allen was
traveling on Washington Street in Charleston, Kanawha County. Washington Street is
a road maintained by respondent. The Court is of the opinion to deny the claim for the
reasons more fully stated below.
The incident giving rise to this claim occurred between 9:10 a.m. and 9:15 a.m.
on April 8, 2005, a clear and dry morning. Washington Street is a four-lane highway
at the area of the incident involved in this claim. Claimant Robert Allen testified that
he was driving on Washington Street when his vehicle struck a loose manhole cover that
he had not seen. Claimants' vehicle sustained damage to a tire and rim. The damage
sustained totaled $643.60. Claimants' insurance deductible was $250.00.
The position of the respondent is that it was not responsible for the
maintenance of the manhole cover on Washington Street at the site of the claimants'
accident for the date in question. David Fisher, Highway Administrator 2 for the
respondent in Kanawha County, testified the manhole cover was for a storm sewer drain
and that the manhole cover belongs to the City of Charleston. He further stated that the
City of Charleston is responsible for the maintenance of the manhole cover.
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, a 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 instant case, the evidence established that the respondent was not
responsible for the manhole cover on Washington Street in Charleston. Consequently,
there is insufficient evidence of negligence upon which to justify an award. Thus, the
claimants may not make a recovery for their loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED NOVEMBER 20, 2006
TAMMY CRANE
VS.
DIVISION OF HIGHWAYS
(CC-05-302)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On June 14, 2005, claimant was injured on a broken signpost at the corner
of Pennsylvania Avenue and Lee Street.
2. Respondent was responsible for the maintenance of roadway signs located
at the corner of Pennsylvania Avenue and Lee Street which it failed to maintain properly
on the date of this incident.
3. Claimant and Respondent agree that the amount of $750.00 for the damages
put forth by the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of roadway signs located at the corner of Pennsylvania
Avenue and Lee Street on the date of this incident; that the negligence of respondent
was the proximate cause of the damages sustained by claimant; and that the amount of
the damages agreed to by the parties is fair and reasonable. Thus, claimant may make
a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $750.00.
Award of $750.00.
__________________
OPINION ISSUED NOVEMBER 20, 2006
JO ANN BERWINKLE and WILLIAM T. BERWINKLE
VS.
DIVISION OF HIGHWAYS
(CC-05-424)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when a tree
fell onto their vehicle while claimant Jo Ann Berwinkle was traveling on Route 19 in
Clarksburg, Harrison County. Route 19 is a road maintained by respondent. The Court
is of the opinion to deny the claim for the reasons more fully stated below.
The incident giving rise to this claim occurred at approximately 4:30 p.m. on
August 13, 2005, a clear and warm day. Jo Ann Berwinkle testified that she was
stopped at a red light just prior to the VA bridge in Clarksburg when a tree or large
branch fell from the hillside adjacent to Route 19 and struck her vehicle. She stated that
she had not noticed the tree before it fell and that there were many trees on the hillside
adjacent to Route 19. Mrs. Berwinkle testified that the branch appeared to be a live tree
since it had leaves on it. The tree went through her vehicle's passenger side window and
broke the front windshield. Claimants' vehicle sustained $2,818.62 in damages.
Claimants' insurance deductible was $250.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 19 at the site of the claimants' accident for the date in
question. The respondent did not present any witnesses at the hearing of this matter.
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). The general rule of this Court with regard
to tree fall claims is that if a tree is dead and poses an apparent risk, then the respondent
may be held liable. However, when an apparently healthy tree falls and causes property
damage as a result of a storm, the Court has held that there is insufficient evidence of
negligence upon which to justify an award. Wiles v. Division of Highways, 22 Ct. Cl.
170 (1998); Gerritsen v. Dept. of Highways, 16 Ct. Cl. 85 (1986).
In the instant case, the Court is of the opinion that respondent had no notice that
the tree at issue posed an apparent risk to the public. The evidence adduced at the
hearing established that the tree appeared to be a live and healthy tree. Neither claimants nor respondent had reason to believe that the tree was in danger of falling.
Thus, the claimants have not established any negligence on the part of the respondent,
and further, they may not make a recovery for their loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED NOVEMBER 20, 2006
CONNIE CLINE
VS.
DIVISION OF HIGHWAYS
(CC-05-427)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 2002
Pontiac Grand Am struck a boulder as she was traveling westbound on I-64 in Kanawha
County. I-64 is a road maintained by respondent in Putnam 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 at approximately 8:30 a.m. on
November 3, 2005, a clear and dry morning. I-64 is a six-lane road with a speed limit
of seventy miles per hour at the area of claimant's incident. Ms. Cline was driving
westbound in the middle lane on I-64 near the Nitro exit when she came across a boulder
in the road. Claimant could not avoid the boulder because of traffic all around her.
Claimant's vehicle struck the rock and sustained damage to the transmission totaling
$2,570.36. Claimant's insurance deductible was $1,000.00.
The position of the respondent was that it did not have notice of the rock on I-
64. Mike Escue, Transportation Crew Supervisor for respondent in Putnam County,
testified that this is not an area that is prone to rock falls. Mr. Escue stated that most of
the terrain between Cross Lanes and Nitro is valley and that there are guard rails
adjacent to the west bound lanes of I-64 at the scene of the incident. He testified that
his office received no notice of any rock falls in this area on the date of claimant's
incident. Respondent maintains that there was no prior notice of any rocks on I-64
immediately prior to the incident in question.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va. 645,
46 S.E.2d 81 (1947). To hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of the
road defect at issue and a reasonable amount of time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8
(1985). In rock fall claims, this Court has held that the unexplained falling of a rock
onto a highway without a positive showing that respondent knew or should have known
of a dangerous condition posing injury to person or property is insufficient to justify an
award. Coburn v. Dept. of Highways, 16 Ct. Cl. 68 (1985).
In the present claim, claimant has not established that respondent failed to take
adequate measures to protect the safety of the traveling public on I-64 in Putnam
County. It was unclear from the evidence presented at trial where the rock that
claimant's vehicle struck came from. While the Court is sympathetic to claimant's
plight, the fact remains that there is no evidence of negligence on the 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 this claim.
Claim disallowed.
__________________
OPINION ISSUED DECEMBER 15, 2006
TRUDA NULL
VS.
DIVISION OF HIGHWAYS
(CC-03-495)
Larry Ford and Michael Glasser, Attorneys at Law, for claimant.
Andrew F. Tarr and Jason C. Workman, Attorneys at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On November 17, 2001, claimant was walking across 21st Street in Nitro,
Kanawha County, when she fell due to a crack in the road.
2. Respondent was responsible for the maintenance of 21st Street in Nitro,
which it failed to maintain properly on the date of this incident.
3. As a result of this incident, the claimant suffered injuries that required
medical treatment.
4. Claimant and respondent have agreed to settle this claim for the total sum
of Thirteen Thousand Dollars ($13,000.00).
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of 21st Street in Nitro on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained by claimant;
and that the amount of the damages agreed to by the parties is fair and reasonable. Thus,
claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $13,000.00.
Award of $13,000.00.
__________________
OPINION ISSUED DECEMBER 15, 2006
TONY GUZMAN and CONNIE SUE GUZMAN
VS.
DIVISION OF HIGHWAYS
(CC-05-347)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
2002 Chrysler Sebring struck a hole while claimant Tony Guzman was traveling on
County Route 60 in Morgantown, Monongalia County. County Route 60 is a road
maintained by respondent. The Court is of the opinion to make an award in this claim
for the reasons more fully stated below.
The incident giving rise to this claim occurred at approximately 8:30 a.m. on
August 10, 2005. County Route 60, also known as Baker's Ridge Road, is a two-lane
highway at the area of the incident involved in this claim. Claimant Tony Guzman
testified that he was driving on County Route 60 with a truck traveling towards him in
the opposite lane. He stated that it was a clear day but that he drove his vehicle close
to the edge of the road to avoid the other truck when his vehicle struck a hole along the
edge of the road that he had not seen. Mr. Guzman testified that the hole was
approximately sixteen inches long, twelve inches wide, and two to three inches deep.
Claimants' vehicle struck the hole in the road damaging a tire and a rim totaling
$296.69.
The position of the respondent is that it did not have actual or constructive
notice of the condition on County Route 60 at the site of the claimant's accident for the
date in question. Kathy Westbrook, County Highway Administrator for the respondent
in Monongalia County, testified that she had no knowledge of any holes on County
Route 60 in Morgantown prior to the date of claimants' incident. Ms. Westbrook stated
that based upon pictures entered into evidence, the hole appeared to be part of an edge
failure. She testified that an edge failure occurs when the edge of the roadway fails due
to drainage or heavy traffic traveling on the roadway. Respondent maintains that it had
no actual or constructive notice of any holes on County Route 60.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimants' vehicle struck and that the hole
presented a hazard to the traveling public. Photographs in evidence depict the hole and
provide the Court an accurate portrayal of the size and location of the hole on County
Route 60. The size of the hole and the time of the year in which claimants' incident
occurred leads the Court to conclude that respondent had notice of this hazardous
condition and respondent had an adequate amount of time to take corrective action.
Thus, the Court finds respondent negligent and claimants may make a recovery for the
damage to their vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $296.69.
Award of $296.69.
__________________
OPINION ISSUED DECEMBER 15, 2006
RICHARD MILLER and MELINDA MILLER
VS.
DIVISION OF HIGHWAYS
(CC-05-425)
J. Timothy DiPiero, Attorney at Law, for claimants.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimants and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On June 18, 2004, claimant Richard Miller was operating his 1993 Chevrolet
S-10 pickup truck on U.S. Route 60 and was proceeding across the Amandaville Bridge
when his vehicle struck a large hole located in the bridge.
2. Respondent was responsible for the maintenance of U.S. Route 60 and the
Amandaville Bridge, which it failed to maintain properly on the date of this incident.
3. As a result of this incident, Mr. Miller suffered severe physical injuries that
required medical treatment.
4. Claimants and respondent have agreed to settle this claim for the total sum
of One Hundred Ten Thousand Dollars ($110,000.00).
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of U.S. Route 60 and the Amandaville Bridge on the date
of this incident; that the negligence of respondent was the proximate cause of the
damages sustained by claimant Richard Miller; and that the amount of the damages
agreed to by the parties is fair and reasonable. Thus, claimants may make a recovery
for their loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $110,000.00.
Award of $110,000.00.
__________________
OPINION ISSUED DECEMBER 15, 2006
ANTOINE E. GERAUD
VS.
DIVISION OF HIGHWAYS
(CC-06-027)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered
into by claimant and respondent wherein certain facts and circumstances of the claim
were agreed to as follows:
1. On January 11, 2006, claimant was traveling on W. Va. Route 2 in Marshall
County, when his vehicle struck a sign lying in the road damaging two tires.
2. Respondent was responsible for the maintenance of W. Va. Route 2 which
it failed to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $165.20.
4. Respondent agrees that the amount of $165.20 for the damages put forth by
the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of W. Va. Route 2 on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained to
claimant's vehicle; and that the amount of the damages agreed to by the parties is fair
and reasonable. Thus, claimant may make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $165.20.
Award of $165.20.
__________________
OPINION ISSUED DECEMBER 15, 2006
ROBERT C. SMALL
VS.
DIVISION OF HIGHWAYS
(CC-06-060)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 2004
Mazda struck a hole while he was traveling on Sauls Run Road in Harrison County.
Sauls Run Road is a road maintained by respondent. The Court is of the opinion to
make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on the evening of January 21,
2006. Sauls Run Road is a two-lane highway at the area of the incident involved in this
claim. Claimant testified that he was driving on Sauls Run Road with a pickup truck
traveling towards him. He stated that it was raining and the road was narrow and that
because of the oncoming traffic he was close to the edge of the road. His vehicle struck
a hole along on the edge of the road that he had not noticed, damaging two tires and two
rims. He stated that the hole was eight to ten inches deep and approximately one foot
wide. Claimant's vehicle sustained damage totaling $736.85 a portion of which was
paid by his insurance and his out-of-pocket was in the amount of $336.50.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Sauls Run Road at the site of the claimant's accident for the
date in question. The respondent did not present any witnesses at the hearing.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's vehicle struck and that the hole
presented a hazard to the traveling public. Photographs in evidence depict the hole and
provide the Court an accurate portrayal of the size and location of the hole on Sauls Run
Road. The size of the hole and the location of the hole in the road leads the Court to
conclude that respondent had notice of this hazardous condition and respondent had an adequate amount of time to take corrective action. Thus, the Court finds respondent
negligent and claimant may make a recovery for his portion of the damage to his
vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $336.50.
Award of $336.50.
__________________
OPINION ISSUED DECEMBER 15, 2006
JEFFREY FINDO
VS.
DIVISION OF HIGHWAYS
(CC-06-064)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when falling
rocks struck his 1995 Subaru Impreza while he was traveling southbound on Route 250
near Fairmont, Marion County. Route 250 is a road maintained by respondent. The
Court is of the opinion to deny the claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on January 15, 2006. Route 250
is a two-lane highway at the area of the incident involved in this claim. Claimant
testified that he was driving between thirty-five and forty miles per hour when he
noticed some small rocks in the road. As he proceeded along Route 250, his vehicle was
struck by small rocks that fell from the high wall adjacent to the road. The rocks struck
his vehicle on the hood and along the side causing $418.37 in damages. Claimant's
insurance deductible was $100.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 250 at the site of the claimant's accident for the date
in question. Dwayne Miller, Supervisor for the respondent in Marion County, testified
that this section of Route 250 where claimant's incident occurred is a rock fall area with
rock fall signs warning the traveling public both north and southbound. He stated that
there are usually rock falls in the winter and spring along this stretch of Route 250.
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, a 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 instant case, the evidence established that the respondent did not have
actual or constructive notice of the rocks that had fallen on Route 250 prior to and at the
time of the incident in question. Consequently, there is insufficient evidence of
negligence upon which to justify an award. Thus, the claimant may not make a recovery
for his loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED DECEMBER 15, 2006
DENA A. MATTHEWS
VS.
DIVISION OF HIGHWAYS
(CC-06-242)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 2004
Chevrolet Cavalier struck an eroded section of berm while she was traveling on County
Route 7/4 in Mercer County. County Route 7/4 is a road maintained by respondent.
The Court is of the opinion to make an award in this claim for the reasons more fully
stated below.
The incident giving rise to this claim occurred between 6:30 p.m. and 9:00 p.m.
on July 21, 2006. County Route 7/4 is a one-lane highway at the area of the incident
involved in this claim. Claimant testified that it was a clear and dry day and that she
was driving on County Route 7/4 when she saw a logging truck coming at her from the
opposite direction. Ms. Matthews maneuvered her vehicle onto the berm of the road to
avoid the truck. The berm of County Route 7/4 was eroded away approximately one and
a half feet deep. Claimant's vehicle struck this section of eroded berm causing damage
to the vehicle's gas tank, alignment and front bumper totaling $754.99. Claimant's
insurance deductible was $500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on County Route 7/4 at the site of the claimant's accident for the
date in question. Richard Delp, Highway Administrator for the respondent in Mercer
County, testified that County Route 7/4 had a lot of logging traffic on it. He stated that
crews for respondent had been working on the berm and ditches along the road at least
twelve times between February 3, 2006 and September 13, 2006, due to the heavy truck
traffic along the road. Mr. Delp testified that a crew had been working on the shoulders
of County Route 7/4 on June 9, 2006. He also stated that due to the road's location on
the slope of a mountain, a heavy rain could easily wash out any repair work respondent
might have done.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the eroded berm which claimant's vehicle struck and that the berm
presented a hazard to the traveling public. Photographs in evidence depict the berm and
provide the Court an accurate portrayal of the size and location of the eroded section of
berm on County Route 7/4. The size of the hole and the time of the year in which
claimant's incident occurred leads the Court to conclude that respondent had notice of
this hazardous condition and respondent had an adequate amount of time to take
corrective action. Thus, the Court finds respondent negligent and claimant may make
a recovery for the damage to her vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED DECEMBER 15, 2006
REBECCA J. HESS
VS.
DIVISION OF MOTOR VEHICLES
(CC-06-335)
Claimant appeared pro se.
Ronald R. Brown, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the Notice
of Claim and respondent's Answer.
Claimant seeks $50.00 for towing expenses she incurred due to the respondent
failing to properly transfer her license plate to the correct vehicle.
In its Answer, respondent admits the validity of the claim and that the amount is fair and reasonable. The Court is aware that respondent does not have a fiscal method
for paying claims of this nature; therefore, the claim has been submitted to this Court for
determination.
In view of the foregoing, the Court is of the opinion to and does make an award
to claimant in the amount of 50.00.
Award of $50.00.
__________________
OPINION ISSUED JANUARY 4, 2007
DIANA S. EGGERICHS
VS.
DIVISION OF HIGHWAYS
(CC-04-520)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 1996
Ford Escort LX struck a hole when she was traveling on Route 17 in Fayette County.
Route 17 is a road maintained by respondent. The Court is of the opinion to make an
award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred between 2:00 p.m. and 2:30 p.m.
on July 2, 2004. Route 17 is a two-lane highway at the area of the incident involved in
this claim. Claimant testified that on the day in question, she was driving on Route 17
when she saw the hole. Ms. Eggerichs testified that the hole was approximately two feet
wide, two feet long, and eight to twelve inches deep. She stated that it was a sunny and
dry day and that she had seen the hole previously but she had been able to avoid it. On
this occasion she could not avoid the hole because there was oncoming traffic and a man
walking along the berm of the road. Ms. Eggerichs testified that she was traveling at
approximately thirty five miles per hour. She also stated that she was attempting to
catch a vehicle that had sped past a group of children at a fund raiser she had been
attending. Claimant's vehicle struck the hole sustaining damage to the right front axle
and rim. Claimant's vehicle sustained damage totaling $169.99.
The position of the respondent is that it was aware of the hole in question on
Route 17 in Fayette County but that it was attempting to maintain the road as best as
possible. Joe Donnally, Maintenance Crew Supervisor for respondent in Fayette
County, testified that there was a sewer line underneath Route 17 that was leaking. He
stated that respondent's crews had patched this area numerous times, but due to the
leaking sewer line the hole continuously appeared until the sewer company was able to
repair it.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's vehicle struck and that the hole
presented a hazard to the traveling public. The size of the hole leads the Court to
conclude that respondent had notice of this hazardous condition and respondent had an
adequate amount of time to take corrective action. Thus, the Court finds respondent
negligent and claimant may make a recovery for the damage to her vehicle. However,
the Court further finds that claimant was aware of the hole and that she could have
slowed her vehicle prior to striking the hole, and therefore, the Court assesses forty
percent (40%) comparative negligence against the claimant.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to claimants in this claim
in the amount of $101.99.
Award of $101.99.
__________________
OPINION ISSUED JANUARY 4, 2007
TRUDY L. FORSTER
VS.
DIVISION OF HIGHWAYS
(CC-05-348)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 1999
Buick LeSabre struck an object in the roadway while she was traveling on the exit ramp
of I-470 onto Route 2 in Ohio County. I-470 is a road maintained by respondent. The
Court is of the opinion to make an award in this claim for the reasons more fully stated
below.
The incident giving rise to this claim occurred at approximately 8:45 p.m. on
August 15, 2005. The exit ramp of I-470 onto Route 2 is a two-lane highway that
narrows to one lane at the area of the incident involved in this claim. Claimant testified
that she was driving on the exit ramp with a vehicle behind her and a vehicle to her left
attempting to pass her when she saw an object in the road. She stated that she could not
avoid the object because of the traffic around her and concrete barriers to her right. Ms.
Forster testified that the object appeared to be a piece of concrete that had broken off the
road. Claimant's vehicle struck the concrete sustaining damage the underside of the
vehicle. Claimant's vehicle sustained damage totaling $450.23.
The position of the respondent is that it did not have actual or constructive
notice of the condition on the exit ramp of I-470 at the site of the claimant's accident for
the date in question. Terry Kuntz, Interstate Supervisor for the respondent along the
Interstates, testified that he had no knowledge of any holes or objects in the road on the
exit ramp of I-470 onto Route 2 for the date in question. Mr. Kuntz stated that he was
first notified of a problem at the area of claimant's incident on August 17, 2005. He
further stated that this was a "blowout" where concrete breaks into pieces. Mr. Kuntz
stated that this can be caused by intense heat or cold and that the concrete in this area
had been breaking since the previous winter. He stated that respondent did asphalt
patching along this stretch whenever it became aware of a problem. Respondent
maintains that it had no actual or constructive notice of any holes on exit ramp of I-470
at the site of the claimant's accident for the date in question.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the object which claimant's vehicle struck and that the object
presented a hazard to the traveling public. The size of the object, given the time of the
year in which claimant's incident occurred, leads the Court to conclude that respondent
had notice of this hazardous condition and respondent had an adequate amount of time
to take corrective action. Thus, the Court finds respondent negligent and claimant may
make a recovery for the damage to her vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $450.23.
Award of $450.23.
__________________
OPINION ISSUED JANUARY 4, 2007
ROGER VIRDEN
VS.
DIVISION OF HIGHWAYS
(CC-05-402)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 2002
Ford Mustang struck a hole while he was traveling northbound on County Route 7 in
Brooke County. County Route 7 is a road maintained by respondent. The Court is of
the opinion to make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred during the evening on November
7, 2004. County Route 7, locally known as Cross Creek Road, is a two-lane highway
at the area of the incident involved in this claim. Claimant testified that he was driving
on County Route 7 when he saw the hole. He stated that he had seen the hole previously
and had been able to avoid it on other occasions but he could not on this occasion
because there was a vehicle approaching in the opposite lane. Claimant's vehicle struck
the hole sustaining damage to two tires. Claimant's vehicle sustained damage totaling
$385.24. Claimant's insurance deductible was $100.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on County Route 7 at the site of claimant's accident on the date
in question. Mark Griffith, Assistant Superintendent for the respondent in Brooke
County, testified that he first became aware of the condition of County Route 7 after
claimant's incident. Mr. Griffith stated that crews for respondent then went out and put
warning signs up around the hole. Respondent maintains that it had no actual or
constructive notice of any holes on County Route 7 prior to claimant's incident.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's vehicle struck and that the hole
presented a hazard to the traveling public. A photograph in evidence depicts the area
of road where claimant's accident occurred and provides the Court an accurate portrayal
of the size and location of the hole on County Route 7. The size of the hole and its
location in the road leads the Court to conclude that respondent had notice of this
hazardous condition and respondent had an adequate amount of time to take corrective
action. Thus, the Court finds respondent negligent and claimant may make a recovery
for the damage to his vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $100.00.
Award of $100.00.
__________________
OPINION ISSUED JANUARY 4, 2007
DARLA FURBEE
VS.
DIVISION OF HIGHWAYS
(CC-06-031)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
her 2002 Toyota RAV4 striking rocks while she was traveling on State Route 2 in the
Glendale area, also known as "the narrows," in Marshall County. State Route 2 is a road
maintained by respondent. The Court is of the opinion to make an award in this claim
for the reasons more fully stated below.
The incident giving rise to this claim occurred on December 23, 2005. On the
date in question, Ms. Furbee was traveling northbound on State Route 2 near Glendale.
State Route 2 is a four-lane road that is marked as a "falling rock" area. She was proceeding along State Route 2 when the vehicle she was driving struck a rock that had
fallen into the roadway. Claimant's vehicle sustained damage to two tires and two rims
totaling $1,012.97.
It is respondent's position that it acted diligently and took reasonable measures
to warn and protect the traveling public from the hazards of rock falls. There are falling
rock signs at both the north and south ends of the section of State Route 2 referred to as
"the narrows." Respondent undertakes periodic patrols through the area and the area has
been provided with ample lights for when it is dark. Respondent also maintained that
it had no notice of this particular rock fall prior to claimant's accident.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its highways. Adkins v. Sims, 46 S.E.2d 811
(W.Va.1947). In order to hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of the
road defect in question and a reasonable amount of time to take corrective action.
Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct.
Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent has
constructive notice of rock fall hazards in the area at issue. This area on State Route 2
referred to as "the narrows" is a section of highway known for dangerous rock falls
which are clearly a hazard to the traveling public.
Even though respondent has flashing warning signs in place and numerous lights to
assist drivers in seeing rock falls, these actions have not proven to be an adequate
remedy to protect the traveling public from the rocks which frequently fall onto the
highway. This Court has previously made awards in many claims which occurred in this
specific section of State Route 2. See Branicky vs. Div. of Highways, 24 Ct. Cl. 273
(2003); Cusick vs. Div. of Highways, 24 Ct. Cl. 216 (2002); Hall vs. Div. of Highways,
24 Ct. Cl. 212 (2002); Foster vs. Div. of Highways, 23 Ct. Cl. 248 (2000); Williams vs.
Div. of Highways, CC-99-114, (Ct. Cl. Dec. 6, 1999); Hundagen vs. Div. of Highways,
CC-98-303 (Ct. Cl. Dec. 6, 1999.
Thus, the Court is of the opinion that respondent is
liable for the damages which proximately flow from its inadequate protection of the
traveling public in this specific location of State Route 2 in Marshall County, and
further, that respondent is liable for the damages to claimant's vehicle in this claim.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $1,012.97.
Award of $1,012.97.
__________________
OPINION ISSUED JANUARY 4, 2007
DeWITT KEITH BLAIR
VS.
DIVISION OF HIGHWAYS
(CC-06-080)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
his 2000 Ford Windstar striking a rock when he was traveling northbound on Route 2
in Marshall County. Route 2 is a road maintained by respondent in Marshall County.
The Court is of the opinion to make an award in this claim for the reasons more fully
set forth below.
The incident giving rise to this claim occurred on February 25, 2006, a sunny
and dry day. Route 2 is a four-lane road that is marked at the location of claimant's
accident as a "falling rock" area with concrete barriers and a fence on the hillside. Mr.
Blair was proceeding on Route 2 when a rock from the hillside adjacent to Route 2 fell
into his lane of traffic. Claimant could not avoid the rock due to traffic in his left lane
and claimant's vehicle struck the rock. Mr. Blair testified that the fence had been
damaged at least a year prior to his incident. Claimant's vehicle sustained damage to
a tire and rim totaling $262.74.
The position of the respondent was that it did not have notice of the rock on
Route 2. Respondent admitted that the area in question is a rock fall area and stated that
there are "rock fall" signs located at various locations along Route 2 to warn drivers
proceeding on the roadway. Christopher Minor, Highway Administrator 2 for
respondent in Marshall County, testified that this is an area that has rock falls
occasionally and that there are rock fall signs placed along the highway. He stated that
there is also a concrete barrier and a fence in place in order to keep any rocks that fall
from getting out into the road. Mr. Minor further testified that there had been a slide
approximately a year prior to claimant's incident which had damaged two sections of
the fence. He stated that respondent had attempted to clean up after this slide, but had
been unable to repair the fence as it did not have the proper equipment. Mr. Minor
stated that a request had been made to have the fence repaired, but that it still had not
been fixed. Mr. Minor further stated that he had received no notice of any rock falls in
the area of Route 2 prior to claimant's incident.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va. 645,
46 S.E.2d 81 (1947). To hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of the
road defect at issue and a reasonable amount of time to take corrective action. Chapman
v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8
(1985). In rock fall claims, this Court has held that the unexplained falling of a rock
onto a highway without a positive showing that respondent knew or should have known
of a dangerous condition posing injury to person or property is insufficient to justify an
award. Coburn v. Dept. of Highways, 16 Ct. Cl. 68 (1985).
In the present claim, respondent has placed "falling rock" warning signs to
warn the traveling public of the potential for rock falls at this location, along with
placing concrete barriers and a fence along the hillside. However, respondent was aware
that the fence had been damaged for at least a year prior to claimant's incident and had
not fixed the fence. The actions taken by respondent in this claim are not adequate to
protect the traveling public from a known hazard. Thus the Court is of the opinion that
respondent is liable for the damages which proximately flow from its inadequate
protection of the traveling public at this location of Route 2 in Marshall County, and
further, that respondent is liable for the damages to claimant's vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in the
amount of $262.74.
Award of $262.74.
__________________
OPINION ISSUED JANUARY 4, 2007
GLORIA JUNE GALLOURAKIS
VS.
DIVISION OF HIGHWAYS
(CC-06-093)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred as a result of
2005 Subaru Forester striking rocks while she was traveling on State Route 2 in the
Glendale area, also known as "the narrows," in Marshall County. State Route 2 is a road
maintained by respondent. The Court is of the opinion to make an award in this claim
for the reasons more fully stated below.
The incident giving rise to this claim occurred on February 23, 2006. On the
date in question, Ms. Gallourakis was traveling northbound on State Route 2 near
Glendale. State Route 2 is a four-lane road that is marked as a "falling rock" area. She
was proceeding on State Route 2 when the vehicle she was driving struck a rock that had
fallen into the roadway. Claimant's vehicle sustained damages totaling $1,512.03.
Claimant's insurance deductible was $500.00.
It is respondent's position that it acted diligently and took reasonable measures
to warn and protect the traveling public from the hazards of rock falls. There are falling
rock signs at both the north and south ends of the section of State Route 2 referred to as
"the narrows." Respondent undertakes periodic patrols through the area and the area has
been provided with ample lights for when it is dark. Respondent also maintained that
it had no notice of this particular rock fall prior to claimant's accident.
It is a well established principle that the State is neither an insurer nor a
guarantor of the safety of motorists on its highways. Adkins v. Sims, 46 S.E.2d 811
(W.Va.1947). In order to hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of the
road defect in question and a reasonable amount of time to take corrective action.
Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct.
Cl. 8 (1985).
In the present claim, the Court is of the opinion that respondent has
constructive notice of rock fall hazards in the area at issue. This area on State Route 2
referred to as "the narrows" is a section of highway known for dangerous rock falls
which are clearly a hazard to the traveling public.
Even though respondent has flashing warning signs in place and numerous lights to
assist drivers in seeing rock falls, these actions have not proven to be an adequate
remedy to protect the traveling public from the rocks which frequently fall onto the
highway. This Court has previously made awards in many claims which occurred in this
specific section of State Route 2. See Branicky vs. Div. of Highways, 24 Ct. Cl. 273
(2003); Cusick vs. Div. of Highways, 24 Ct. Cl. 216 (2002); Hall vs. Div. of Highways,
24 Ct. Cl. 212 (2002); Foster vs. Div. of Highways, 23 Ct. Cl. 248 (2000); Williams vs.
Div. of Highways, CC-99-114, (Ct. Cl. Dec. 6, 1999; Hundagen vs. Div. of Highways,
CC-98-303 (Ct. Cl. Dec. 6, 1999.
Thus, the Court is of the opinion that respondent is
liable for the damages which proximately flow from its inadequate protection of the
traveling public in this specific location of State Route 2 in Marshall County, and
further, that respondent is liable for the damages to claimant's vehicle in this claim.
In accordance with the findings of fact and conclusions of law as stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED JANUARY 4, 2007
JAMES R. MEADOWS and ROBERTA J. MEADOWS
VS.
DIVISION OF HIGHWAYS
(CC-06-253)
Claimants appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
2005 Harley Davidson 1200 Sportster struck a hole while traveling on Eccles Road in
Beckley, Raleigh County. Eccles Road is a road maintained by respondent. The Court
is of the opinion to make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred between 3:30 p.m. and 4:00 p.m.
on August 13, 2006. Eccles Road is a one-lane road at the area of the incident involved
in this claim. James Meadows testified that on the sunny and dry day in question, he
and his wife were riding his motorcycle with his son traveling ahead of them on another
motorcycle. He stated that his son was approximately one hundred yards in front of him
and that he saw his son swerve his motorcycle to avoid holes in the road. Mr. Meadows
testified that there was a truck traveling towards him when he came upon the holes in
the road. He stated that because there was an oncoming truck, he could not avoid the
holes, and his motorcycle struck both holes. Mr. Meadows stated that the first hole was
approximately twelve to eighteen inches wide, eighteen inches long, and seven inches deep. Claimants' motorcycle struck the holes sustaining damage to the front rim and tire
totaling $638.39. Claimants' insurance deductible was $500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Eccles Road at the site of the claimant's accident for the date
in question. Respondent did not present any testimony or evidence at the hearing of this
matter.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the holes which claimants' motorcycle struck and that the holes
presented a hazard to the traveling public. Photographs in evidence depict the size and
location of the holes in the road. The size of the holes leads the Court to conclude that
respondent had notice of this hazardous condition and respondent had an adequate
amount of time to take corrective action. Thus, the Court finds respondent negligent and
claimants may make a recovery for the damage to their motorcycle. However, the Court
further finds that Mr. Meadows was aware of the holes after having seen his son swerve
to avoid them and that he should have stopped his motorcycle to avoid them, and
therefore, the Court assesses thirty percent (30%) comparative negligence against the
claimants.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to claimants in this claim
in the amount of $350.00.
Award of $350.00.
__________________
OPINION ISSUED JANUARY 12, 2007
MISTY BROWN SPAULDING
VS.
DIVISION OF HIGHWAYS
(CC-02-119)
Kimberly E. Williams, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
FORDHAM, JUDGE:
Claimant brought this action for personal injuries and vehicle damage which
occurred on March 7, 2000, when her 1998 Honda Civic went into a washed out area
of the shoulder while she was traveling on W. Va. Route 501 in Cross Lanes, Kanawha
County. W. Va. Route 501 is a road maintained by respondent. The Court previously
found fault on the part of both the respondent and the claimant and assigned the claimant
twenty five percent (25%) of that fault. This matter, therefore, was heard on the issue
of damages only and the Court is of the opinion to make an award in this claim for the
reasons more fully stated below.
The claimant testified at the hearing of this matter as to the extent of her
injuries. Ms. Brown Spaulding testified that after the accident she first checked on her
five-week old son who did not appear to have suffered any injuries. She then noticed
that her leg was rotated backwards and her ankle was broken. She also had a cut on her
hand. Claimant testified that she was taken to the hospital where her leg was put back
in place and because she had not been medicated while this was done, she experienced
severe pain. Ms. Brown Spaulding next recalled waking up in the hospital
approximately nine days later. She was told that she had suffered a head injury in the
accident and stated that she could not answer basic questions. She also suffered a pelvis
fracture in the incident. Claimant was moved to an inpatient rehabilitation unit on
March 16, 2000, where she had to learn, among other things, how to use a walker and
walk up and down stairs. Ms. Brown Spaulding required five or six surgeries due to the
injuries suffered in her accident. Claimant's total medical bills, including hospital bills,
surgeries, and physical therapy, totaled $117,306.84. She was unable to work for several months following the accident so she incurred work loss which totaled
$11,382.00. Ms. Brown Spaulding's vehicle was totaled in the accident. Her insurance
deductible was $250.00.
Claimant testified that as a result of the injuries she suffered she is no longer
work able to work as a registered nurse on the floor of a hospital; therefore, she has
taken a position as a legal nurse consultant in the office of a practicing physician. She
stated that she had enjoyed being in the hospital with patients since she was prepared in
her education for that type of position. She stated that she is unable to run which she
did prior to the incident for personal exercise. Ms. Brown Spaulding also testified that
due to her injuries, she can no longer play typical games with her children such as "tag"
or "hide and seek." She attempts to take walks with her family but her ankle injury tires
her so that is not possible except for short walks. She enjoyed riding her bicycle prior
to her injury and she continues to try to continue with this form of exercise but it is not
as enjoyable for her now since she experiences pain during this activity. Her life style
has changed dramatically as a result of the injury to her ankle which occurred as a result
of this vehicular accident.
Clark D. Adkins M.D., stated in an evidentiary deposition that he had
performed several surgeries on clamant as a result of her accident on March 7, 2000.
He stated that she suffered a broken hip socket, broken tibia and broken fibula. Dr.
Adkins testified that he examined Ms. Brown Spaulding on June 5, 2006, and stated that
she has severe arthritis in her ankle which is progressive. He stated that her injury is
permanent and that she will in the future require an ankle fusion due to the pain that she
suffers. Elizabeth Davis, a certified rehabilitation counselor and certified life care
planner, testified that an ankle fusion surgery would cost approximately $17,780.00.
In the instant case, the Court is of the opinion that claimant has suffered a
permanent injury that will require future treatment as a result of the incident involved
in this claim. Ms. Brown Spaulding has experienced and will continue to suffer a
tremendous amount of severe pain and suffering as a result of her injuries and she has
been forced to alter her lifestyle to accommodate her ankle. Therefore, the Court is of
the opinion that an award of $498,639.36 represents a fair and reasonable reimbursement
to claimant for her injuries and the resulting out-of-pocket medical bills, lost wages,
future medical treatment, property loss, and past and future pain and suffering .
However, the Court previously found claimant to be at fault to the extent of twenty five
percent (25%) thus reducing the amount of the award to $373,979.52.
Accordingly, the Court is of the opinion to and does make an award to the
claimant in the amount of $373,979.52.
Award of $373,979.52.
__________________
OPINION ISSUED JANUARY 12, 2007
DR. LYN GUY, SUPERINTENDENT OF
MONROE COUNTY SCHOOLS and
MONROE COUNTY BOARD OF
EDUCATION
VS.
WEST VIRGINIA DEPARTMENT
OF EDUCATION
CC-03-572
Robert E. Richardson, Attorney at Law, for claimants.
Doren C. Burrell, Senior Assistant Attorney General, for respondent.
GRITT, JUDGE:
Claimants, Dr. Lyn Guy, Superintendent of Monroe County Schools, and
the Monroe County Board of Education, brought this action to recover $112,571.38
which they allege was not paid to it by the Respondent, West Virginia Department of
Education, when the respondent failed to allocate a supplemental appropriation
proportionately to county boards of education in the 2004 fiscal year as provided by
statute. The parties stipulated certain facts in this claim as follows:
1. The Court of Claims has jurisdiction over the subject matter of this
action.
2. County boards of education in seventeen West Virginia counties,
including Monroe
County, experienced a net increase in student enrollment from the 2001-2002 school
year to the 2002-2003 schoo1 year.
3. In the 2002-2003 budget, enacted on March 17, 2002, the Legislature
appropriated $1,204,196 for aid to counties experiencing increased student
enrollment from the 2001-2002 school year to the 2002-2003 school year, which,
when combined with the funds appropriated for that purpose and carried over from
the preceding year, provided $1,473,344
to be allocated among the various county boards of education that had experienced
such a net increase in student enrollment.
4. Prior to the 2003-2004 fiscal year, appropriations for "Increased
Enrollment" regularly appeared in the budget bill as a distinct line item with an
assigned activity code of 140.
5. The funds appropriated for increased student enrollment in the 2002-
2003 budget, together with those appropriated for that purpose under the 2001-2002
budget and carried over, were insufficient to provide fully for the increased
enrollment in those counties experiencing a net increase in enrollment from the 2001-
2002 school year to the 2002-2003 school year. The Department of Education
therefore allocated those funds proportionately among all of the counties that
experienced such a net increase in student enrollment, as required by § 18-9A-15 of
the West Virginia Code. The portion of these funds allocated to Monroe County was
$87,293.
6. Prior to commencement of the 2003 general legislative session, the West
Virginia Department of Education requested a supplemental appropriation of
$3,006,256 to fund all counties that had experienced net increased enrollment during
the 2002-2003 school year.
7. When House Bill 104 was introduced in the Legislature, it did not have a
line-item entry for "Increased Enrollment" as in previous years.
8. Thereafter, on March 16, 2003, the Legislature enacted a supplemental
appropriations bill, identified as H.B.104, by which it appropriated the sum of
$1,900,000 for "Traditional Increased Enrollment - 5 years through 12th grade" for
the 2002-03 school year. This item was assigned an activity code of 997.
9. H.B. 104 did not contain any definition for the term "Traditional
Increased Enrollment - 5 years through 12th grade".
10. The Department of Education did not allocate the funds appropriated
pursuant to H.B. 104 among all of the counties that experienced a net increase in
student enrollment from the 2001-2002 school year to the 2002-2003 school year,
and did not utilize the formula and procedures set forth in §18-9A-15 of the West
Virginia Code with regard to the allocation of those funds as done in previous years.
11. The Department of Education allocated the funds appropriated for
"Traditional Increased Enrollment - 5 years through 12th grade" pursuant to H.B. 104
among six county boards of education, each of which had experienced a net increase
in student enrollment from one year to the next in at least three of the five years
considered by the Department of Education. In allocating these funds, the
Department of Education considered increases in student enrollment from the 1997-
1998 school year to the 1998-1999 school year, from the 1998-1999 school year to
the 1999-2000 school year, from the 1999-2000 school year to the 2000-2001 school
year, from the 2000-2001 school year to the 2001-2002 school year, and from the
2001-2002 school year to the 2002-2003 school year. If a county board of education
experienced a net increase in student enrollment in at least three of these years, it
received an allocation of the appropriated funds in proportion to its increase in
enrollment from the 2001-2002 school year to the 2002-2003 school year.
12. Because Monroe County experienced a net increase in student
enrollment in only two of the five years considered by the Department of Education
in allocating the funds appropriated
for "Traditional Increased Enrollment - 5 years through 12th grade" pursuant to H.B.
104, it was not allocated any of those funds.
13. For each of the four years immediately preceding the 2002-2003 school
year, the Legislature had appropriated sufficient amounts to fully fund the increased
student enrollment in all counties experiencing a net increase in student enrollment,
the total amount appropriated for each of those years was sufficient to provide to
each such county an amount equal to that county's average per net pupil total state
aid multiplied by the increase in that county's net enrollment.
14. Had the West Virginia Department of Education allocated the appropriation made for "Traditional Increased Enrollment - 5 years through 12th
grade" under H.B. 104 among all of the counties that experienced an increase in net
student enrollment between the 2001-2002 school year and the 2002-2003 school
year, in the manner described in § 18-9A-15 of the West Virginia Code, the Monroe
County Board of Education would have received allocations totaling $199,864.38 for
increased enrollment during the 2002-2003 year, rather than an allocation of only
$87,293.00 for increased enrollment during that year. In the event that the Court of
Claims determines that the Monroe County Board of Education is entitled to relief in
this action, its damages would be $112,571.38.
15. On March 16, 2003, the Legislature enacted H.B. 2050, which
established the state's budget for 2003-2004.
16. In RB. 2050, the Legislature appropriated $2,000,000 for "Traditional
Increased Student Enrollment - 5 years through 12th grade" for the 2003-2004 school
year.
17. These funds appropriated for "Traditional Increased Student Enrollment
- 5 years through 12th grade" in the 2003-2004 budget were insufficient to provide
fully for the increased enrollment in all of those counties experiencing a net increase
in enrollment from the 2002-2003 school year to the 2003-2004 school year.
18. In allocating the funds appropriated in the 2003-2004 budget for
"Traditional Increased Student Enrollment - 5 years through 12th grade", the
Department of Education considered only those county boards of education that had
experienced a net increase in student enrollment from one year to the next in at least
three of the five preceding years (that is, from the 1998-1999 school year to the
1999-2000 school year, from the 1999-2000 school year to the 2000-2001 school
year, from the 2000-2001 school year to the 2001-2002 school year, from the 2001-
2002 school year to the 2002-2003 school year, and from the 2002-2003 school year
to the 2003-2004 school year). For county boards of education that had experienced a
net increase in student enrollment from one year to the next in at least three of those
years, the Department of Education allocated a share of the funds appropriated for
"Traditional Increased Student Enrollment - 5 years through 12 th grade", in
proportion to each such county's increase in student enrollment for the 2003-2004
school year.
19. Thereafter, on March 21, 2004, the Legislature enacted a supplemental
appropriation bill identified as S.B. 1006, by which it appropriated an additional
$615,000 for "Traditional
Increased Student Enrollment - 5 years to 12th grade" for the 2003-2004 school year.
20. In allocating the funds appropriated pursuant to S.B. 1006 for
"Traditional Increased Student Enrollment - 5 years to 12th grade", the Department
of Education included all counties that had experienced a net increase in student
enrollment, without regard to any requirement for an increase in enrollment in three
of the preceding five years.
21. On November 16, 2004, the Legislature enacted another supplemental
appropriation bill, identified as S.B. 3006, by which it appropriated an additional
$664,292.00 for increased enrollment for the 2003-2004 school year. These funds
were similarly allocated among all counties that had experienced a net increase in
student enrollment, without regard to any requirement for an increase in enrollment
in three of the preceding five years.
22. As a result of the appropriations contained in the 2003-2004 budget and
the supplemental appropriations contained in S.B. 1006 and S.B. 3006, all counties
that had experienced a net increase in student enrollment from the 2002-2003 school
year to the 2003-2004 school year received the full amount of funding necessary to
provide for those net increases.
In addition to the Stipulation of Facts agreed to by the parties, the Court
held a hearing in this claim, during which certain exhibits were admitted in evidence.
Post trial briefs filed by the parties also have been accepted by the Court. Counsel
for the claimant objected to the acceptance of respondent's post trial brief due the
date on which the brief was filed. Further, respondent has raised an issue in its post
trial brief that had not been raised at any stage of the proceeding up to and including
the
hearing, i.e., the fact that the supplemental appropriation at issue in the claim was
to be paid from the lottery fund rather than from general revenue as had been the
funding source in prior years. In its post trial brief respondent argues that this fact
relieved the respondent from following the general statute for proportioning funds to
county boards of education for increased student enrollment. The Court has considered respondent's post trial brief even though it was filed late. The Court is of
the opinion that the late filing is not prejudicial to claimant. Claimant filed a brief in
response which likewise was considered by the Court in its decision of this claim.
Accordingly, the Court has analyzed the positions of the parties with respect
to the facts as put forth in the stipulation, the hearing of the claim, and the briefs filed
by the parties. The issue in this claim is one of first impression with this Court. The
issue, how a State agency distributes funds allocated to it by the Legislature, has not
been considered in prior claims considered by the Court. Thus the Court has
reviewed the Constitution of the State of West Virginia, the particular statute at issue,
the language and provisions of House Bill 104, and the laws of this State in reaching
its conclusion that the claimant Board of Education of the County of Monroe herein
is entitled to an award.
The West Virginia Constitution specifically provides for the education of
the children in our State. Article XII, Section 1 states that, "The Legislature shall
provide, by general law, for a thorough and efficient system of free schools." That
article also relates to the funding for schools as stated in Section 5, as follows:
Support of Free Schools.
The Legislature shall provide for the support of free schools by appropriating
thereto the interest of the invested "School Fund," the net proceeds of all
forfeitures and fines accruing to this state under the laws thereof and by general
taxation of persons and property or otherwise. It shall also provide for raising in
each county or district, by the authority of the people thereof, such a proportion of
the amount required for the support of free schools therein as shall be prescribed
by general laws.
Since this section provides that the appropriation be "by general taxation of
persons and property or otherwise... ." the drafters of this section recognized that
there may be funding sources other than general revenue which may be used to fund
schools. Therefore, the fact that House Bill 104 used lottery money to fund the
increased enrollment certainly does not amend the general law. Thus, the argument
of the respondent that it could alter the method of allocation of funds to counties
other than proportionately as provided in the general law logically fails.
The general laws that provide for a system of free schools are in Chapters
18 and 18A of the W. Va. Code. The section at issue in this claim is found in
Chapter 18, Article 9A, Section 15 and provides as follows:
§18-9A-15. Allowance for increased enrollment.
(a) To provide for the support of increased net enrollments in the counties in a
school year over the net enrollments used in the computation of total
state aid for
that year, there shall be appropriated for that purpose from the general revenue
fund an amount to be determined in accordance with this section.
(b) On or before the first day of September, two thousand five, the State Board
shall promulgate a rule pursuant to article three-b, chapter twenty-nine-a of this
code that establishes an objective method for projecting the increase in net
enrollment for each school district. The State Superintendent shall use the method
prescribed by the rule to project the increase in net enrollment for each school
district.
(c) The State Superintendent shall multiply the average total state aid per net pupil
by the sum of the projected increases in net enrollment for all school districts and
report this amount to the Governor for inclusion in his or her proposed budget to
the Legislature. The Legislature shall appropriate to the West Virginia Department
of Education the amount calculated by the State Superintendent and proposed by
the Governor.
(d) The State Superintendent shall calculate each school district's share of the
appropriation by multiplying the projected increase in net enrollment for the school
district by the average total state aid per net pupil and shall distribute sixty percent
of each school district's share to the school district on or before the first day of
September of each year. The State Superintendent shall make a second distribution
of the remainder of the appropriation in accordance with subsection (e) of this
section.
(e) After the first distribution pursuant to subsection (d) of this section is made and
after the actual increase in net enrollment is available, the State Superintendent
shall compute the total actual amount to be allocated to each school district for the year. The total actual amount to be allocated to each school district for the year is
the actual increase in the school district's net enrollment multiplied by the average
total state aid per net pupil. The State Superintendent shall make the second
distribution to each school district in an amount determined so that the total
amount distributed to the district for the year, in both the first and second
distributions, equals the actual increase in net enrollment multiplied by the average
total state aid per net pupil. The State Superintendent shall make the second
distribution on or before the thirty-first day of December of each year: Provided,
That if the amount distributed to a school district during the first distribution is
greater than the total amount to which a district is entitled to receive for the year,
the district shall refund the difference to the Department of Education prior to the
thirtieth day of June of the fiscal year in which the excess distribution is made.
(f) If the amount of the appropriation for increased enrollment is not sufficient to
provide payment in full for the total of these several allocations, each county
allocation shall be reduced to an amount which is proportionate to the
appropriation compared to the total of the several allocations and the allocations as
thus adjusted shall be distributed to the counties as provided in this section:
Provided, That the Governor shall request a supplemental appropriation at the next
legislative session for the reduced amount.
(g) No provision of this section shall be construed to in any way affect the
allocation of moneys for educational purposes to a county under other provisions
of law.
The specific language at issue is in subsection (f) which provides that in the event
that the appropriation for increased enrollment is not sufficient to pay each county so
affected by an increase in enrollment then the county allocation "shall be reduced to
an amount which is proportionate to the appropriation... and the allocations as thus
adjusted shall be distributed to the counties as provided in this section:... ." It
appears that the intention of the statute is to provide that all counties which
experience an increase in enrollment are treated equally when funds are appropriated
by the Legislature to address this particular situation or the words "proportionate to
the appropriation...shall be distributed" for this purpose would not be included in this
specific statute.
The Court recognizes that the respondent was interpreting the provisions in
the supplemental appropriation bill (H.B. 104) based upon its assumption that
ambiguous language in that bill was to be interpreted differently. Thus, it did not
appropriate the funds provided by the supplemental bill in accordance with the
general law applicable to the distribution of funds provided for counties which had
an increase in enrollment for this particular fiscal year. The Court disagrees. The
Court is of the opinion that the general law is to be followed unless the law has been
specifically amended by the Legislature. Accordingly, it is the opinion of the Court
that the respondent had a legal obligation and duty to follow the general statute rather
than ambiguous language in a budget bill, i.e., the supplemental bill in question
herein. A budget bill does not change the provisions of a general statute already in
law which addresses the specific circumstance. The effect of respondent's
interpretation of this language is to benefit certain counties to the detriment of the
claimant.
In accordance with the findings of fact and conclusions of law as stated
herein above, the Court is of the opinion to and does make an award in the amount of
$112,571.39 to the Board of Education of the County of Monroe.
Award to the Board of Education of the County of Monroe
in the amount of
$112,571.38.
__________________
OPINION ISSUED JANUARY 12, 2007
JANE O'BRIEN, as Administratrix of the Estate of
WILLIAM PAUL O'BRIEN
VS.
DIVISION OF HIGHWAYS
(CC-04-515)
Dan R. Snuffer Jr., Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation
entered into by claimant and respondent wherein certain facts and circumstances of
the claim were agreed to as follows:
1. On September 7, 2002, claimant William Paul O'Brien was traveling on
Route 16 in Calhoun County, when he was involved in a motorcycle accident which
resulted in his death.
2. Respondent was responsible for the maintenance of Route 16 which it
failed to maintain properly on the date of this incident.
3. Claimant and Respondent agree that the amount of $50,000.00 for the
damages put forth by the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Route 16 on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained by
claimant; and that the amount of the damages agreed to by the parties is fair and
reasonable. Thus, claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $50,000.00.
Award of $50,000.00.
__________________
OPINION ISSUED JANUARY 12, 2007
CHARLES BROWNING and CONNIE BROWNING
VS.
DIVISION OF HIGHWAYS
(CC-05-152)
Claimants appeared pro se.
Jason C. Workman, Attorney at Law, for respondent
PER CURIAM:
Claimants brought this action for vehicle damage which occurred as a result
of their 2002 Chevrolet ZR2 striking rocks when claimant Connie Browning was
traveling on Route 10 in Logan County. Route 10 is a road maintained by
respondent in Logan County. The Court is of the opinion to make an award in this
claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred at approximately 11:50 a.m.
on March 15, 2004. Route 10 is a four-lane road at the location of claimant's
accident. Mrs. Browning testified that she was traveling in the right lane when rocks
from the hillside adjacent to Route 10 fell onto her vehicle. Claimants' vehicle was
struck by the rocks and sustained damage to the passenger side totaling $977.00.
Claimants' insurance deductible was $500.00.
The position of the respondent was that it did not have notice of the rocks
on Route 10. Curly Belcher, County Supervisor for respondent in Logan County,
testified that this is an area that has rock falls occasionally but that there are no rock
fall signs placed along the highway. Mr. Belcher testified that there is a three feet
high barrier wall between the cliff and the road that is designed to catch rocks that
come off the cliff, but that occasionally rocks will fall into the road. Respondent
maintains that there was no prior notice of any rocks on Route 10 immediately prior
to the incident in question.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va.
645, 46 S.E.2d 81 (1947). To hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of
the road defect at issue and a reasonable amount of time to take corrective action.
Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16
Ct. Cl. 8 (1985). In rock fall claims, this Court has held that the unexplained falling
of a rock onto a highway without a positive showing that respondent knew or should
have known of a dangerous condition posing injury to person or property is
insufficient to justify an award. Coburn v. Dept. of Highways, 16 Ct. Cl. 68 (1985).
In the present claim, the Court is of the opinion that respondent had at least
constructive, if not actual, notice of rock fall hazards in the area at issue. The area
along this section of Route 10 is known to have rock falls which are a hazard to the
traveling public. The respondent's actions on the date of this incident were not
adequate to protect the claimant from the rocks which frequently fall onto the
highway. Thus, the Court is of the opinion that respondent is liable for the damages
which flow from its inadequate protection of the traveling public along this section of
Route 10, and further, that respondent is liable for the damages to claimants' vehicle
in this claim. Thus, the Court is of the opinion to make an award in this claim in the
amount of $500.00.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimants in the
amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED JANUARY 12, 2007
MICHELLE POWNALL
VS.
REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY
(CC-05-294)
Claimant appeared pro se.
Ronald R. Brown, Assistant Attorney General, for respondent.
PER CURIAM:
Claimant brought this claim to recover the value of certain personal
property items that she alleges were lost by the respondent. Claimant was serving a
term of confinement in the Northern Regional Jail, a facility of respondent. When
she was released from confinement, all of her personal property was missing.
A hearing was conducted by the Court in this claim on October 26, 2006, at
which time the claimant testified as to the facts and circumstances giving rise to the
claim. Ms. Pownall testified that she had reported to Northern Regional Jail for
thirty days on a driving under the influence conviction. She stated that she served
this term in increments of five days and she would then return home on the weekends
to work. When she reported to the correctional facility, her property was taken and
inventoried. On June 3, 2005, she was released having completed the full sentence
and upon being released, it was discovered that her personal property was missing.
Ms. Pownall testified that she was missing a purse, wallet, watch, her birth
certificate, driver's license, a jacket, shirt, pair of pants, shoes, a bra, and socks. She
estimated that the total value of the items missing was $310.00.
Claimant asserts that respondent was responsible for her personal property
once she reported to the correctional facility and it was inventoried. At that time a
bailment relationship existed when she no longer had control or possession of her
personal property.
Respondent contends that it was not responsible for claimant's property and
that it followed proper procedures in inventorying her personal property.
Larry Conkle, Correctional Officer Two at Northern Regional Jail, testified
that when an inmate reports for confinement in Northern Regional Jail, her or his
property is inventoried and placed in a property bag. He stated that the property bag
is then taken and hung on a rack in a secure area of the prison and then placed in a
locked cage until the prisoner is released. Mr. Conkle testified that he was present
when claimant reported to the correctional facility and inventoried all of her personal
property. He further stated that after claimant was released and discovered her
personal property missing, he checked all the other property bags for her items but
could not find any of her items.
This Court has held that a bailment exists when respondent records the
personal property of an inmate and takes it for storage purposes, and then has no
satisfactory explanation for not returning it. Page v. Division of Corrections, 23 Ct.
Cl. 238 (2000); Heard v. Division of Corrections, 21 Ct. Cl. 151 (1997). In the
present claim, the evidence adduced at the hearing established that the claimant had
a purse, wallet, watch, birth certificate, driver's license, jacket shirt, a pair of pants, shoes, a bra, and socks in her possession when she reported to Northern Regional
Jail. However, when she was released from confinement, none of these items were
found and returned to claimant. The property was in the control and possession of
respondent while the claimant was in Northern Regional Jail. However, respondent
has no plausible explanation for what happened to the property items. Respondent
was responsible for the personal property items when claimant was confined.
Respondent was in a position to safeguard claimant's property while she was
confined. The Court finds that respondent was responsible for securing the
claimant's property and failed to take the appropriate action to do so. Therefore, the
Court is of the opinion to make an award to the claimant for the value of her a purse,
wallet, watch, birth certificate, driver's license, jacket shirt, a pair of pants, shoes, a
bra, and socks. The Court is of the opinion that $310.00 represents a fair and
reasonable reimbursement to claimant for the lost property.
Accordingly, the Court is of the opinion to and does make an award to the
claimant in the amount of $310.00.
Award of $310.00.
__________________
OPINION ISSUED JANUARY 12, 2007
PHILIP S. LAWRENCE
VS.
DIVISION OF HIGHWAYS
(CC-05-333)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his
2004 Volkswagen Golf R32 struck a hole while he was traveling eastbound on Route
60 near South Charleston, Kanawha County. Route 60 is a road maintained by
respondent. The Court is of the opinion to make an award in this claim for the
reasons more fully stated below.
The incident giving rise to this claim occurred at approximately 12:00 p.m.
on August 4, 2005. Route 60 is a four-lane highway with a right turn lane at the area
of the incident involved in this claim. Claimant testified that on the clear and dry day
in question, he was driving on Route 60 in the right turn lane when he saw the hole.
Mr. Lawrence stated that he was unable to avoid the hole due to the traffic around
him. Claimant's vehicle struck the hole sustaining damage to a tire totaling $138.21.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 60 at the site of the claimant's accident for the date
in question. Respondent did not present any testimony or evidence at the hearing of
this matter.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's vehicle struck and that the hole
presented a hazard to the traveling public. Photographs in evidence depict the size of
the hole and its location in the road. The size of the hole and the time of year at
which this incident occurred leads the Court to conclude that respondent had notice
of this hazardous condition and respondent had an adequate amount of time to take
corrective action. Thus, the Court finds respondent negligent and claimant may
make a recovery for the damage to his vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to claimants in this
claim in the amount of $138.21.
Award of $138.21.
__________________
OPINION ISSUED JANUARY 12, 2007
LUCY HILES and AMELIA HILES
VS.
DIVISION OF HIGHWAYS
(CC-05-355)
Claimants appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
1996 Geo Metro struck a hole while claimant Lucy Hiles was traveling on Route 94
in Kanawha County. Route 94 is a road maintained by respondent. The Court is of
the opinion to make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred at approximately 11:00 a.m.
on June 4, 2005. Route 94 is a two-lane highway at the place of the incident
involved in this claim. Lucy Hiles testified that on the sunny and dry day in
question, she was driving on Route 94 when she pulled off the road to go to a yard
sale. She stated that as she turned her vehicle off the road, the front passenger side
tire of her vehicle went into a hole that she had not seen because of grass and weeds.
She testified that there were no warning signs around the hole. Her vehicle fell into
the hole and had to be removed by use of a tow truck. Ms. Hiles testified that the
hole was as big as her vehicle. Claimants' vehicle sustained damages totaling
$2,436.37.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 94 at the site of the claimants' accident for the date
in question. Frank McGuire, Foreman for respondent in Kanawha County, testified
that there is a four foot shoulder along Route 94 in this area. He further stated that
there were warning signs posted around this hole at some time, but he was unsure as
to when they were put in place.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimants' vehicle struck and that the hole
presented a hazard to the traveling public. The size of the hole and the lack of
warning signs around this hole at the time of claimants' incident leads the Court to
conclude that respondent had notice of this hazardous condition and respondent had
an adequate amount of time to take corrective action. Thus, the Court finds
respondent negligent and claimants may make a recovery for the damage to their
vehicle. However, the Court further finds that Ms. Hiles had turned her vehicle too
sharply while pulling off the road and struck the hole, which could have been
avoided by properly turning into the driveway beyond the hole, and therefore, the
Court assesses twenty percent (20%) comparative negligence against the claimants.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to claimants in this
claim in the amount of $1,949.10.
Award of $1,949.10.
__________________
OPINION ISSUED JANUARY 12, 2007
MARK RILEY AND CARLA RILEY
VS.
DIVISION OF HIGHWAYS
(CC-06-197)
Claimants appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
2005 Saturn Relay struck two holes while claimant Carla Riley was traveling on
Route 19 in Goodhope, Harrison County. Route 19 is a road maintained by
respondent. The Court is of the opinion to make an award in this claim for the
reasons more fully stated below.
The incident giving rise to this claim occurred at night on June 9, 2006.
Route 19 is a two-lane highway at the place of the incident involved in this claim.
Carla Riley testified that on the evening in question, she was driving on Route 19
when her vehicle struck two holes that she had not seen. She testified that one hole
was approximately one foot wide, two feet long and eight inches deep and that the
other hole was approximately one foot long and eight inches deep. Claimants'
vehicle struck the holes sustaining damage to a rim totaling $194.65.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 19 at the site of the claimant's accident for the date
in question. Respondent did not present any testimony or evidence at the hearing of
this matter.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the holes which claimants' vehicle struck and that the holes
presented a hazard to the traveling public. The size of the holes and the location of
the holes within the road leads the Court to conclude that respondent had notice of
this hazardous condition and respondent had an adequate amount of time to take
corrective action. Thus, the Court finds respondent negligent and claimants may
make a recovery for the damage to their vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to claimants in this
claim in the amount of $194.65.
Award of $194.65.
__________________
OPINION ISSUED JANUARY 12, 2007
JOHN W. CRUSE
VS.
OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING
(CC-06-367)
Claimant appeared pro se.
Ronald R. Brown, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the
Notice of Claim and respondent's Answer.
Claimant seeks $6,045.32 for investigative overtime work performed from
February 2006 through November 2006 due to the Sago Mine accident.
In its Answer, respondent admits the validity of the claim and that the
amount is fair and reasonable. The Court is aware that respondent does not have a
fiscal method for paying claims of this nature; therefore, the claim has been
submitted to this Court for determination.
In view of the foregoing, the Court is of the opinion to and does make an
award to claimant in the amount of $6,045.32.
Award of $6,045.32.
__________________
OPINION ISSUED JANUARY 12, 2007
COUNTRY INN & SUITES
VS.
PUBLIC SERVICE COMMISSION
(CC-06-394)
Claimant appeared pro se.
Richard E. Hitt, General Counsel, for respondent.
PER CURIAM:
This claim was submitted for decision based upon the allegations in the
Notice of Claim and respondent's Answer.
Claimant seeks $3,325.58 for providing a conference room, lunch and
equipment for an event hosted by the respondent State agency. The documentation
for these services was not processed for payment within the appropriate fiscal year;
therefore, claimant has not been paid.
In its Answer, respondent admits the validity of the claim as well as the
amount, and states that there were sufficient funds expired in the appropriate fiscal
year from which the invoice could have been paid.
Accordingly, the Court makes an award to claimant in the amount of
$3,325.58.
Award of $3,325.58.
__________________
OPINION ISSUED JANUARY 17, 2007
MARLENE MIDDLETON,
dba THE CUTTING EDGE
VS.
DIVISION OF HIGHWAYS
(CC-04-337)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for property damage to her real estate which
she alleges occurred as a result of respondent's negligent maintenance of a drainage
system. Claimant's property is adjacent to County Route 61/24, locally known as
Armstrong Creek Road and County Route 61/46, locally known as Post Office Road,
in Kimberly, Fayette County. A hearing was held in this claim and the Court issued
an Opinion on September 26, 2006, wherein the Court determined fault on the part of
the respondent. The issue of damages was held open for claimant to provide
documentation of her loss. Subsequently, the claimant filed various invoices to
establish her loss in the amount of $5,060.88.
The Court has reviewed the documentation of claimant's damages which
include the loss of a computer, repairs to the floor of the building, replacement of
carpeting and various other items used for her business. The Court is of the opinion
that the amount of $5,060.88 is fair and reasonable to compensate the claimant for
her loss.
Accordingly, the Court is of the opinion to and does make an award to
claimant in the amount of $5,060.88.
Award of $5,060.88.
__________________
OPINION ISSUED JANUARY 17, 2007
PANHANDLE HOMES INC.,
VS.
DIVISION OF HIGHWAYS
(CC-05-400)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when its
1995 Volvo Toter struck a broken sign post while traveling at the intersection of
Lover's Lane and Walker Road in Follansbee, Brooke County. Lover's Lane and
Walker Road are roads maintained by respondent. The Court is of the opinion to
make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred at approximately 3:40 p.m.
on July 28, 2005. Lover's Lane is a gravel road and Walker Road is a two-lane
highway at the area of the incident involved in this claim. Ira Nutter testified that he
was delivering a mobile home onto Lover's Lane. He stated that the only way to get
the mobile home to where it was going was to back onto Lover's Lane from Walker
Road. Mr. Nutter testified that as he was backing the vehicle onto Lover's Lane, one
of the tires struck a broken off sign post that he had not seen. Janice Nutter testified
that she had previously called respondent regarding this broken sign post and that
grass and weeds had grown up around it so it could not be seen. Claimant's vehicle
struck the broken sign post sustaining damage to a tire totaling $325.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition at the intersection of Lover's Lane and Walker Road at the
site of the claimant's accident for the date in question. Mark Griffith, Acting
Superintendent for respondent in Brooke County, testified that if a report of a broken
off sign post comes to respondent, they would report it to the sign shop who would
replace it. Mr. Griffith also stated that Lover's Lane is a HARP road and is a low
priority road for respondent.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the broken sign post which claimant's vehicle struck and that
the broken sign post presented a hazard to the traveling public and had an adequate
amount of time to take corrective action. Thus, the Court finds respondent negligent
and claimant may make a recovery for the damage to its vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to claimants in this
claim in the amount of $325.00.
Award of $325.00.
__________________
OPINION ISSUED JANUARY 17, 2007
JAMES E. RUBENSTEIN
VS.
DIVISION OF HIGHWAYS
(CC-05-426)
Harry M. Rubenstein, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his
2005 Nissan Maxima struck a hole while he was traveling on Route 60 in South
Charleston, Kanawha County. Route 60 is a four-lane highway maintained by
respondent at the location of the incident involved in this claim. The Court is of the
opinion to make an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred at approximately 6:10 p.m.
on November 3, 2005. Claimant testified that he was traveling in the outside lane
with traffic to his left in the inside lane traveling in the same direction. He stated that
as he was doing so, his vehicle struck a hole in Route 60 that he had not seen. He described the hole as being approximately three inches deep, three inches wide, and
stretched from Route 60 onto F Street, which intersects Route 60 at the site of
claimant's incident. He stated that the hole appeared to be a cut in the road and that
there were no warning signs. Claimant's vehicle in striking the hole sustained
damage to a rim and tire totaling $848.18. Claimant's insurance deductible was
$500.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 60 at the site of the claimant's accident for the date
in question. Chet Burgess, Maintenance Supervisor for respondent in Kanawha
County, testified that from photographs in evidence this appears to be a utility cut.
Mr. Burgess stated that respondent does not perform cuts in the roadways at the time
of year in which claimant's incident occurred. He further stated that the cut looked
like something that the water company did. Mr. Burgess testified that the water
companies do not inform respondent of when they are doing utility work on
highways for which respondent is responsible. He stated that there was no record of
any work done by respondent along this stretch of Route 60 either the week before or
the week after claimant's incident.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's vehicle struck and that the hole
presented a hazard to the traveling public. The size of the hole and its location
within the highway leads the Court to conclude that respondent had notice of this
hazardous condition and respondent had an adequate amount of time to take
corrective action. Thus, the Court finds respondent negligent and claimant may
make a recovery for the damage to his vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimant in this
claim in the amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED JANUARY 17, 2007
JOANN HAINER and JERRY HAINER
VS.
DIVISION OF HIGHWAYS
(CC-04-533)
Claimants appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation
entered into by claimants and respondent wherein certain facts and circumstances of
the claim were agreed to as follows:
1. On July 20, 2004, claimant Jerry Hainer was traveling on a bridge in
Chief Logan State Park in Logan County when several boards on the bridge came
loose and damaged the underside of the vehicle.
2. Respondent was responsible for the maintenance of the roads in Chief
Logan State Park which it failed to maintain properly on the date of this incident.
3. As a result of this incident, claimants' vehicle sustained damage in the
amount of $1,568.23.
4. Respondent agrees that the amount of $1,568.23 for the damages put
forth by the claimants is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of the bridge in Chief Logan State Park on the date of
this incident; that the negligence of respondent was the proximate cause of the
damages sustained to claimants' vehicle; and that the amount of the damages agreed to by the parties is fair and reasonable. Thus, claimants may make a recovery for
their loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $1,568.23.
Award of $1,568.23.
__________________
OPINION ISSUED JANUARY 17, 2007
LAWRENCE THOMPSON
VS.
REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY
(CC-06-131)
Claimant appeared pro se.
Ronald R. Brown, Assistant Attorney General, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Settlement
entered into by claimant and respondent wherein certain facts and circumstances of
the claim were agreed to as follows:
1. On April 11, 2006, claimant was released from custody at South Central
Regional Jail. Upon his release it was discovered that his jacket was missing from
his personal property items stored by respondent during his custody.
2. Respondent has admitted the validity of this claim.
3. Claimant and respondent have agreed to accept $75.00 as a fair and
reasonable settlement of this matter.
The Court has reviewed the facts of the claim and finds that respondent was
responsible for the loss of claimant's jacket and that the amount of the damages
agreed to by the parties is fair and reasonable. Thus, claimant may make a recovery
for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $75.00.
Award of $75.00.
__________________
OPINION ISSUED APRIL 3, 2007
TINA L. GIBSON
VS.
DIVISION OF HIGHWAYS
(CC-04-439)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her
1991 Chevrolet Beretta struck a tree that had fallen onto Route 25, in Glen Jean,
Fayette County. Route 25 is a road maintained by respondent. The Court is of the
opinion to deny the claim for the reasons more fully stated below.
The incident giving rise to this claim occurred at approximately 3:00 a.m.
on June 11, 2004. Route 25 is a two-lane highway at the area of the incident
involved in this claim. Tina L. Gibson testified that she was traveling at
approximately thirty miles per hour due to foggy conditions when she noticed a tree
in the road. She stated that the tree appeared to be alive and covered the entire road.
Ms. Gibson testified that she applied her breaks but her vehicle still struck the tree,
sustaining damages totaling $366.87.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 25 at the site of the claimant's accident for the date
in question. Joe Donnally, Maintenance Crew Leader for respondent in Fayette
County, testified that he had no information about the tree that fell onto Route 25 prior to claimant's incident.
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). The general rule of this Court with
regard to tree fall claims is that if a tree is dead and poses an apparent risk, then the
respondent may be held liable. However, when an apparently healthy tree falls and
causes property damage as a result of a storm, the Court has held that there is
insufficient evidence of negligence upon which to justify an award. Wiles v. Division
of Highways, 22 Ct. Cl. 170 (1998); Gerritsen v. Dept. of Highways, 16 Ct. Cl. 85
(1986).
In the instant case, the Court is of the opinion that respondent had no notice
that the tree at issue posed an apparent risk to the public. The evidence adduced at
the hearing established that the tree appeared to be a healthy tree. Neither claimant
nor respondent had reason to believe that the tree was in danger of falling. Thus, the
claimant may not make a recovery for her loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED APRIL 3, 2007
RICKIE M. LEVITT
VS.
DIVISION OF HIGHWAYS
(CC-05-344)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his
1991 Plymouth Acclaim struck a hole while he was traveling on Route 52 near
Bluewell, Mercer County. Route 52 is a road maintained by respondent. The Court
is of the opinion to deny the claim for the reasons more fully stated below.
The incident giving rise to this claim occurred between 7:15 p.m. and 7:30
p.m. on August 18, 2005. Route 52 is a two-lane highway at the area of the incident
involved in this claim. Claimant testified that he noticed a vehicle in the oncoming
lane that was traveling close to the center line. Mr. Levitt stated that he drove his
vehicle to the side of the road to avoid the oncoming vehicle and that when he did so,
his vehicle struck a hole in the road. Claimant testified that he knew the hole was
there prior to his vehicle striking it and that it was approximately two and a half to
three feet long, two to two and a half feet wide, and six inches deep. Claimant's
vehicle sustained damage to the front right tire totaling $98.76.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 52 at the site of the claimant's accident for the date
in question. Respondent did not present any witnesses or evidence at the hearing of
this matter.
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, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the hole which claimant's vehicle struck and that the hole
presented a hazard to the traveling public. However, the evidence established that
the claimant knew of the condition on Route 62 prior to his incident and that there
was an opportunity for him to slow his vehicle down and avoid the hole prior to his
vehicle striking it. Consequently, the Court is of the opinion that claimant is at least
fifty percent negligent in this claim, and therefore the claimant may not make a
recovery for his loss in this claim.
In view of the foregoing, the Court is of the opinion to and does deny this claim.
Claim disallowed.
__________________
OPINION ISSUED APRIL 3, 2007
FELICIA CORLEY
VS.
DIVISION OF HIGHWAYS
(CC-05-345)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her
1997 Dodge Avenger struck a piece of wood while she was traveling southbound on
I-79 in Marion County. I-79 is a road maintained by respondent in Marion 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 at approximately 9:00 p.m.
on January 10, 2005. I-79 is a four-lane road at the area of the incident involved in
this claim. Claimant testified that she was traveling in her left lane while passing a
truck. Ms. Corley stated that as she was passing the truck, she noticed pieces of split
wood or logs in the road. She testified that she could not avoid the wood because of
the truck to her right. Ms. Corley's vehicle struck the pieces of wood causing
damage to two tires and two rims totaling $956.75, which includes a charge for
towing her vehicle.
The position of the respondent was that it did not have notice of the split
wood or logs on I-79 at the time of the incident. Respondent did not present any
witnesses or evidence at the hearing of this matter.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va.
645, 46 S.E.2d 81 (1947). To hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of
the road defect at issue and a reasonable amount of time to take corrective action.
Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16
Ct. Cl. 8 (1985).
In the present claim, the Court finds that claimant failed to establish by
sufficient evidence that the damage to her vehicle was the result of any negligence on
the part of respondent. While sympathetic to the claimant's position, the Court
cannot speculate as to how the pieces of wood came to be on the road at the time of
claimant's incident, or how the respondent could have been negligent in such a
situation.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
__________________
OPINION ISSUED APRIL 3, 2007
WAYNE KAUFMAN
VS.
DIVISION OF HIGHWAYS
(CC-06-004)
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent
PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his
1997 Pontiac Grand Am struck a piece of concrete when his daughter, Amanda Kaufman, was traveling southbound on W. Va. Route 2 in Ohio County. W. Va.
Route 2 is a road maintained by respondent in Ohio 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 during the afternoon on
December 17, 2005. W. Va. Route 2 is a four-lane road at the area of the incident
involved in this claim. Amanda Kaufman testified that she was traveling in her left
lane at approximately fifty-five miles per hour. She stated that she saw a piece of
concrete in the road, but she could not avoid it because of traffic in the right lane.
The vehicle struck the piece of concrete, damaging a tire and a rim. Ms. Kaufman
testified that the piece of concrete was approximately fourteen to sixteen inches long
and six inches wide. Claimant's vehicle sustained damages totaling $200.00.
The position of the respondent was that it did not have notice of the piece of
concrete on W. Va. Route 2. Terry Kuntz, an employee of respondent in Ohio
County, testified that the piece of concrete that claimant's vehicle struck was a piece
that had broken off W. Va. Route 2. Mr. Kuntz further stated that there had been no
prior notice of any pieces of concrete along this stretch of W. Va. Route 2 and that
there were no complaints the day before claimant's incident.
It is a well-established principle that the State is neither an insurer nor a
guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va.
645, 46 S.E.2d 81 (1947). To hold respondent liable, claimant must establish by a
preponderance of the evidence that respondent had actual or constructive notice of
the road defect at issue and a reasonable amount of time to take corrective action.
Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16
Ct. Cl. 8 (1985).
In the present claim, the evidence established that the respondent did not
have actual or constructive notice of a piece of concrete on W. Va. Route 2 prior to
the incident in question. Consequently, there is insufficient evidence of negligence
upon which to justify an award. Thus the claimant may not make a recovery for his
loss in this claim.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
__________________
OPINION ISSUED MAY 3, 2007
LINDA AREHART
VS.
DIVISION OF HIGHWAYS
(CC-05-429)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation
entered into by claimant and respondent wherein certain facts and circumstances of
the claim were agreed to as follows:
1. On October 28, 2005, claimant was traveling on Mill Creek Road in
Charleston, Kanawha County, when her vehicle struck a hole in the road damaging a
tire.
2. Respondent was responsible for the maintenance of Mill Creek Road,
which it failed to maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damages totaling
$137.75.
4. Respondent agrees that the amount of $137.75 for the damages put forth
by the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Mill Creek Road on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained to
claimant's vehicle; and that the amount of the damages agreed to by the parties is fair
and reasonable. Thus, claimant may make a recovery for her loss.
Accordingly, the Court is of the opinion to and does make an award in the amount of $137.75.
Award of $137.75.
__________________
OPINION ISSUED MAY 3, 2007
JOHN W. LACY and KRISTI R. LACY
VS.
DIVISION OF HIGHWAYS
(CC-05-390)
Claimants appeared pro se.
Andrew F. Tarr and Jason C. Workman, Attorneys at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation
entered into by claimants and respondent wherein certain facts and circumstances of
the claim were agreed to as follows:
1. On May 30, 2005, claimant Kristi Lacy was traveling on Woodward
Drive in Charleston, Kanawha County, when her vehicle struck a hole in the road
damaging a rim.
2. Respondent was responsible for the maintenance of Woodward Drive
which it failed to maintain properly on the date of this incident.
3. As a result of this incident, claimants' vehicle sustained damage in the
amount of $649.25. Claimants' insurance deductible was $500.00.
4. Respondent agrees that the amount of $500.00 for the damages put forth
by the claimants is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Woodward Drive on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained to
claimants' vehicle; and that the amount of the damages agreed to by the parties is fair
and reasonable. Thus, claimants may make a recovery for their loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED MAY 14, 2007
ROBERT KELLY COLLINS
VS.
DIVISION OF HIGHWAYS
(CC-02-308)
Lacy Wright Jr., Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
FORDHAM, JUDGE:
Claimant brought this action for personal injuries which occurred when he
came upon a tree in the road while traveling in his 1999 Chevrolet Z-71 truck
eastbound on Route 83 near Raysal, McDowell County. Route 83 is a road
maintained by respondent. The Court took a view of the scene of claimant's accident
after the hearing of this matter. The Court is of the opinion to deny the claim for the
reasons more fully stated below.
The incident giving rise to this claim occurred at approximately 5:30 a.m.
on October 25, 2001. Route 83 is a two-lane highway at the area of the incident
involved in this claim. There had been a thunderstorm during that night with high
winds. Robert Kelly Collins testified that as he was traveling to work that morning
the roads were still wet, it was dark and he had the headlights on. Claimant stated
that he had been traveling at between forty and forty-five miles-per-hour. He stated
that as he traveled around a curve in the road, he noticed a tree that had fallen across
both lanes of travel. Claimant testified that the tree did appear to be alive as it had leaves on it. Mr. Collins attempted to miss the largest part of the tree by steering his
vehicle to the left. His vehicle struck the tree, however, and then struck a guardrail
that was on his left side of Route 83. As a result of the accident, emergency crews
had to use the jaws-of-life to remove Mr. Collins from his truck. Claimant was life
flighted to Charleston Area Medical Center with neck, back, and leg injuries. Mr.
Collins stated that since the accident, his neck, left arm, elbow, back, legs and knees
often bother him and that he became depressed. Claimant's unpaid medical bills
total approximately $11,500.00.
Roger Cox, a 911 dispatcher for McDowell County Emergency Services,
testified on behalf of the claimant. Mr. Cox stated that at approximately 1:45 a.m. on
the date of claimant's incident, there were telephone calls made to the 911 center
from throughout McDowell County about trees that were down on the roads. He
stated that he had reports of trees down on Route 52, Route 80, Route 1, and Route
83. Mr. Cox then stated he then tried to contact Division of Highways employees
about these trees, based on an emergency call-out list that was provided to McDowell
County Emergency Services by respondent. He stated that he and the other
dispatchers tried to call Ronnie Gullet, Paul Gullet, and Arlie Matney several times
and could not reach any of them. Mr. Cox testified that at 2:27 a.m. he made a
telephone call to Gose Yates, a Supervisor for respondent in McDowell County. He
stated that Mr. Yates told him to keep trying the other Division of Highways
employees on the emergency call-out list about the trees that were in the roads. Mr.
Cox testified that he then tried to contact the other employees on the emergency call-
out list, but was unable to reach them. At 5:40 a.m., Mr. Cox stated that they
received a telephone call regarding claimant's accident and that he dispatched an
ambulance, the fire department, and the West Virginia State Police to the scene. Mr.
Cox further stated that as of 5:40 a.m., there had been no contact with any employees
of the Division of Highways other than with Gose Yates.
Trooper G.D. Williams of the West Virginia State Police testified that he
investigated claimant's accident. He stated that he was first notified of the accident
at approximately 6:00 a.m. Trooper Williams testified that when he arrived at the
scene, the road surface was still wet. He stated that the guardrail that claimant's
vehicle struck had gone through the motor, through the fire wall, and into the seat of
the vehicle. Trooper Williams testified that it was his opinion that claimant was
driving too fast for the roadway conditions at the time of the incident due to the fact
that the road was wet.
Clifford Kendrick, Assistant Chief of the Raysal Volunteer Fire
Department, and Randall Mutter, a member of the Raysal Volunteer Fire
Department, testified that they responded to the scene of claimant's incident. Mr.
Mutter testified that the tree had leaves on it and that it appeared to be a healthy tree.
Mr. Kendrick testified that the tree that claimant's vehicle struck was a live tree with
a trunk that was between twelve and fourteen inches in diameter.
Lance Robson, a civil engineer practicing in the areas of highway
engineering and crash reconstruction, testified on behalf of the claimant. Mr. Robson
testified that a tree in a road is a hazard and that in his opinion the respondent had
more than adequate time to respond to the downed tree based upon when the
McDowell County 911 center contacted Gose Yates. Mr. Robson also testified that
the weather on the night of claimant's incident had been severe enough to cause
numerous tree falls on several roads throughout McDowell County.
Robert Williams, a vocational consultant, testified on behalf of the claimant.
Mr. Williams stated that Mr. Collins has lower back, mid-back, knees, neck, and
shoulder pain. He testified that claimant's primary employment history indicated he
was involved in the coal industry primarily as a heavy equipment operator, and that
due to his injuries he could not work in the future as such.
Dan Selby, an economist, testified on behalf of the claimant. Mr. Selby
testified that due to the injuries suffered by Mr. Collins, he has in essence a work
disability. He stated that in his opinion Mr. Collins has a lost earning capacity of
$647,540.00. He also stated that the claimant lost approximately nineteen hours of
household services per week due to his injuries, and that these services have an
approximate value of $218,960.00.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 83 at the site of the claimant's accident for the date
in question.
Gose Yates, Crew Leader for respondent in McDowell County, testified that the emergency call-out list was used in case a Division of Highways employee had to
be contacted to deal with a situation in a part of the county. He stated that there were
several different substations where Division of Highways employees were
throughout the county. Mr. Yates stated that the Raysal substation, which was close
to the scene of claimant's incident, was not a manned substation and it was only used
as a storage facility. Mr. Yates stated that the normal procedure when he received a
telephone call from 911 dispatchers about a tree in a road would be to respond as
quickly as possible putting out markers to warn the traveling public while getting
equipment and men together to remove the hazard from the road. Mr. Yates testified
that on the date of claimant's incident he had been on annual leave from respondent.
He further stated that he did not recall receiving a telephone call from the 911
dispatch center on the night of claimant's incident. Mr. Yates testified that if he had
received a telephone call from the 911 dispatch center while on annual leave, he
would have called other Division of Highways employees to respond to the situation.
Arlie Matney, Crew Chief for respondent in McDowell County, testified
that he first found out about trees in the road on the date of claimant's incident
between 7:15 a.m. and 7:30 a.m. He stated that he gathered equipment to remove the
trees from the road, but that when he arrived on the scene at approximately 8:00 a.m.
the tree had already been removed from the road. Mr. Matney testified that there was
another tree down on Route 83 that was removed from the road later that morning.
He further stated that he did not recall getting a telephone call during the night on
October 25, 2001, nor did he recall the telephone ringing at all.
Kent Jenkins, the acting County Supervisor for respondent in Mercer
County, McDowell County and I-77 at the time of claimant's incident, testified that
he was first contacted by the 911 call center regarding trees in the road between 6:00
a.m. and 6:30 a.m. while he was traveling to work. Mr. Jenkins stated that he told
the 911 dispatcher that he would contact Division of Highways' employees as soon
as he got to a ground line and that they would respond to the situation. He further
stated that there were several trees reported to be down in the roads. Mr. Jenkins
stated that on the morning of claimant's accident that there had been two employees
out on an emergency request at three different locations. He testified that these
employees had been contacted by the 911 call center at 1:30 a.m. about trees down in
the road on Route 52 and Route 80. These employees also checked out Route 3 and
Route 1 for other debris and removed trees from Route 52, Route ½, and Route 1/11.
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). The general rule of this Court with
regard to tree fall claims is that if a tree is dead and poses an apparent risk, then the
respondent may be held liable. However, when an apparently healthy tree falls and
causes property damage as a result of a storm, the Court has held that there is
insufficient evidence of negligence upon which to justify an award. Wiles v. Division
of Highways, 22 Ct. Cl. 170 (1998); Gerritsen v. Dept. of Highways, 16 Ct. Cl. 85
(1986).
In the instant case, the Court is of the opinion that respondent had no notice
that the tree at issue posed an apparent risk to the public. The evidence adduced at
the hearing established that the tree appeared to be a healthy tree. Neither claimant
nor respondent had reason to believe that the tree was in danger of falling. Further,
there was evidence that crews for respondent were out in other parts of McDowell
County removing trees from the roadways. While there was evidence that there were
trees down throughout parts of the county and that respondent was aware of some of
these trees, the Court finds that there was no evidence presented that respondent had
actual or constructive notice of the tree that claimant's vehicle struck on Route 83.
The Court is sympathetic with the position of claimant who came upon an emergency
situation, tried to avoid a collision with the tree, but he was unable to avoid the tree
which his vehicle struck. However, since the Court finds no negligence on the part
of the respondent for this tree being in the road, there may be no recovery by the
claimant.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED JUNE 5, 2007
DAVID L. MOLES
VS.
DIVISION OF HIGHWAYS
(CC-02-288)
David G. Thompson, Attorney at Law, for claimant.
Andrew F. Tarr and Jason C. Workman, Attorneys at Law, for respondent.
SAYRE, JUDGE:
Claimant brought this action for personal injuries which occurred when the
vehicle in which he was a passenger struck another vehicle as he and his wife were
traveling northbound on Route 35 near Pliny, Putnam County. Route 35 is a road
maintained by respondent. The Court is of the opinion to deny the claim for the
reasons more fully stated below.
The incident giving rise to this claim occurred at approximately 5:56 a.m.
on July 20, 2000. Route 35 is a two-lane highway at the area of the incident involved
in this claim. Claimant testified that on the date of the incident, his wife, Jessica
Moles, was driving the claimant's 2000 Chevrolet Impala northbound on Route 35.
Mr. Moles stated that he was awake in the passenger seat when a vehicle was driven
onto Route 35 from a driveway on the right side of the road. He stated that he had
not seen the other vehicle prior to observing it as it was driven onto Route 35 in front
of their vehicle. Claimant's vehicle struck the other vehicle. After the accident, Mr.
Moles had his wife back their vehicle off the road and into the driveway from
whence the other vehicle had come. Claimant stated that he then looked to the south
along Route 35 and noticed weeds that were above the guardrail, blocking the view
of northbound traffic. Mr. Moles testified that his face had struck the windshield of
his vehicle when his seatbelt did not hold during the accident. He lost several teeth,
he continues to suffer from headaches, and he continues to experience neck pains as
a result of this accident. He further stated that he could not return to work for six
months as a result of this accident. Claimant alleges $25,246.79 in damages as a
result of this accident.
Claimant contends that the proximate cause of the accident herein was the
fact that respondent had allowed the weeds on the area of the berm of Route 35 to
grow above the guardrail creating an obstruction of the highway right of way and
obscuring the vision of the driver emerging from this particular driveway along
Route 35, and thus resulting in the accident involved in this claim.
Dixie Martin, the driver of the other vehicle involved in the July 20, 2000,
incident involved in this claim, testified at the hearing of this matter. Ms. Martin
testified that on the morning of the incident, she was leaving her home to drive to
work. She stated that as she drove to the end of her driveway, approaching Route 35,
she looked to see whether there was any traffic. Ms. Martin stated that she saw a
tractor trailer approaching from the north and that as her vehicle came to the edge of
the road she noticed the headlights of the Moles' vehicle. She testified that the
Moles vehicle appeared to be far enough away that she had plenty of time to make a
left turn into the southbound lane on Route 35. Ms. Martin further testified that she
had made the turn onto Route 35 when claimant's vehicle crossed the center line and
struck her vehicle. Ms. Martin stated that there were weeds behind the guardrail on
the south side of her driveway that had grown two to three feet above the guardrail.
She testified that when the weeds are trimmed, she did not have to pull to the edge of
the highway to see the northbound traffic. Ms. Martin stated that there was some
distance between the guardrail and the edge of the pavement. However, she further
stated that even with the weeds as high as they were, she had seen the Moles vehicle
prior to driving her vehicle onto Route 35 and she thought that she had enough time
to drive onto Route 35 to proceed southbound.
The position of the respondent is that it did not have actual or constructive
notice of the condition on Route 35 at the site of claimant's accident for the date in
question. Gary Stanley, Administrator for respondent in Putnam County, testified
that he was not aware of any complaints regarding brush or weeks at the location of
claimant's incident prior to the incident. Mr. Stanley stated that respondent does
have mowers for brush and grass that are used along highways that respondent
maintains. He also stated that there is a mower that is used to cut brush and mow
behind guardrails. Mr. Stanley stated that his crews attempt to cut grass and brush along Route 35 about every two months, according to how fast it grows. He stated
that on May 1, 10, and 11, 2000, and July 11, 12, 14, 17, and 20, 2000, crews for
respondent were mowing grass along Route 35. Mr. Stanley testified, however, that
there was no way for him to know which part of Route 35 was being mowed on any
given day. Mr. Martin further testified that at the site of claimant's incident there is
approximately eight and a half to nine feet between the guardrail and the edge of the
roadway.
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, a 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 instant case, the Court is of the opinion that respondent had no notice
of the condition on Route 35 with respect to overgrown weeds on the berm at the
scene of the accident herein. Further, while Ms. Martin testified that the weeds were
above the guardrail south of her driveway, she stated that she saw claimant's vehicle
prior to driving onto Route 35 to make a left turn with oncoming traffic.
Consequently, the Court is of the opinion that the weeds were not the proximate
cause of this accident but that the offending driver proceeded onto Route 35 without
regard to oncoming vehicles. Therefore, the Court concludes that there is no
evidence of negligence on the part of the respondent upon which to base an award.
In view of the foregoing, the Court is of the opinion to and does deny this
claim.
Claim disallowed.
__________________
OPINION ISSUED JUNE 5, 2007
JEFFERY E. CARR
VS.
DIVISION OF HIGHWAYS
(CC-04-116)
Joseph W. Caldwell, Attorney at Law, for claimant.
Andrew F. Tarr, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation
entered into by claimants and respondent wherein certain facts and circumstances of
the claim were agreed to as follows:
1. On February 13, 2004, claimant was traveling on I-64 at the base of
Sandstone Mountain, when his vehicle struck a rock in the road.
2. Respondent was responsible for the maintenance of I-64 which it failed to
maintain properly on the date of this incident.
3. As a result of this incident, claimant's vehicle sustained damage in the
amount of $3,752.53. Claimant's insurance deductible was $500.00.
4. Respondent agrees that the amount of $500.00 for the damages put forth
by the claimant is fair and reasonable.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of I-64 on the date of this incident; that the negligence
of respondent was the proximate cause of the damages sustained to claimant's
vehicle; and that the amount of the damages agreed to by the parties is fair and
reasonable. Thus, claimant may make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $500.00.
Award of $500.00.
__________________
OPINION ISSUED JUNE 5, 2007
STEVEN MEESTER
VS.
DIVISION OF HIGHWAYS
(CC-04-479)
Claimant appeared pro se.
Andrew F. Tarr and Jason C. Workman, Attorneys at Law, for respondent.
PER CURIAM:
Claimant brought this action for property damage to his real estate which he
alleges occurred as a result of respondent's negligent maintenance of a drainage
system. Claimant's residence is located in St. Albans, Kanawha County. The Court
is of the opinion to deny the claim for the reasons more fully stated below.
Claimant's property is adjacent to County Route 60/2, locally known as
Strawberry Road. The incidents giving rise to this claim occurred during May 2003,
and specifically on May 28, 2004, and June 22, 2004. On each of these occasions
heavy rainfall occurred which resulted in flooding inside claimant's residence which
is the basis for the claim herein. Mr. Meester stated that he bought the property in
May 2002, and that the first flooding did not occur until 2003. In May 2003,
claimant testified that there was a heavy rainfall which resulted in the flooding of the
entire basement. Mr. Meester stated that there was as much as one foot of water in
some areas. Claimant testified that after this flood, he contacted respondent about
inspecting a culvert that extends from a ditch across the street from his property,
beneath County Route 60/2, then under his property and into a junction box at the
rear of his property. He further stated that in June 2003, respondent inspected the
culvert beneath County Route 60/2 and indicated that there were no problems with
the culvert. Mr. Meester stated that there was some flooding in his residence during
2003 whenever there was a heavy rain. Michael Shields, a roommate of the
claimant, testified that on May 28, 2004, there was a heavy rain which resulted in
approximately six inches of water in the basement. Mr. Shields stated that there was
red clay silt in the water, which he assumed came from a construction site across
County Route 60/2 and up a hill away from claimant's property. In June 2004,
claimant employed B-Dry Systems to install a system of three sump pumps in
claimant's basement to alleviate flooding within his residence. On June 22, 2004,
Mr. Shields noticed water coming up like a geyser out of a hole in the ground next to
claimant's residence. The claimant testified that the hole in the ground is directly
above the location of the culvert that extends underground through his property. As
a result of the flooding in his residence, claimant alleges damages in the amount of
$6,441.00 for the cost of the drainage system installed by B-Dry Systems.
The position of the respondent is that it was not negligent in the
maintenance of the drainage system on County Route 60/2. Darrin Holmes, a
professional engineer employed by respondent, conducted an on-site inspection of
claimant's property. Mr. Holmes testified that he observed the natural drainage
pattern of the land. He opined that claimant's back yard was the lowest point of any
of the surrounding property and that at one time there was a natural ravine which
included the area where claimant's residence and property is now located. Mr.
Holmes stated that the natural water course for this area is where the natural ravine
was once located. He stated that at some point, this ravine was covered up and an
outlet pipe was installed. Mr. Holmes stated that there is a fifteen inch metal pipe
that runs beneath County Route 60/2 and that this pipe connects to a concrete pipe
that extends under claimant's property to a junction box at the back of claimant's
property. He testified that the concrete pipe that extends under claimant's property is
also fifteen inches in diameter. On September 25, 2006, respondent contracted with
Underwater Services Limited to inspect the pipe that extends beneath County Route
60/2 and claimant's property. Mr. Holmes stated that there was a blockage in the
pipe and that this blockage was directly under a Silver Maple tree growing on
claimant's property. Mr. Holmes opined that the tree is pressing the ground of the
slope of the concrete pipe on claimant's property causing a depression in the pipe.
He stated that this depression provides sediment and other debris a place to slowly
build up over time, causing a blockage in the pipe which causes water to back up and
flow out of the hole in the ground that claimant's house mate observed on June 22,
2004, and described as appearing like a geyser of water shooting out of the ground.
Mr. Holmes further stated that the tree on claimant's property is not on respondent's right of way along County Route 60/2.
This Court has held that respondent has a duty to provide adequate drainage
of surface water, and drainage devices must be maintained in a reasonable state of
repair. Haught vs. Dept. of Highways, 13 Ct. Cl. 237 (1980). In claims of this
nature, the Court will examine whether respondent negligently failed to protect a
claimant's property from foreseeable damage. Rogers vs. Div. of Highways, 21 Ct.
Cl. 97 (1996).
In the instant claim, claimant has failed to establish that respondent
maintained the drainage structures on County Route 60/2 in Kanawha County in a
negligent manner. The terrain in this area of County Route 60/2 forms a natural
drainage area onto claimant's property. The Court concludes from all the testimony
and evidence that the water that flowed into the culvert under claimant's property
would have flowed into that same area regardless of whether the culvert under
claimant's property was blocked or not. Further, there was no evidence presented
that respondent knew or should have known of a problem with its culvert prior to the
incidents involved in this claim nor was there any evidence presented that there was
a problem with respondent's culvert. It is apparent to the Court that the tree growing
on claimant's property was the proximate cause of the problem with the culvert since
it depressed the ground over the culvert. The Court was able to observe the blockage
in the culvert from the video of the inside of the culvert prepared during an
inspection of the culvert by respondent's contractor. This video provided the Court
with a view of the culvert, the depression in the culvert, and the debris resulting in
the blockage which caused water to flow out of the culvert and onto the ground
surrounding the area where it was then able to flow into claimant's residence. Thus,
the Court is of the opinion that the flooding on claimant's property was not caused by
any action or inaction on the part of the respondent. Consequently, there is no
evidence of negligence on the part of respondent upon which to base an award.
In accordance with the findings of fact and conclusions of law as stated
herein above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
__________________
OPINION ISSUED JUNE 5, 2007
TRACY HAYNES and CHAD HAYNES
VS.
DIVISION OF HIGHWAYS
(CC-05-369)
Claimants appeared pro se.
Andrew F. Tarr and Jason C. Workman, Attorneys at Law, for respondent.
PER CURIAM:
Claimants brought this action for vehicle damage which occurred when their
2002 Ford F-150 traveled over wet paint while they were traveling on Route 21 near
Sissonville, Kanawha County. Route 21 is a road maintained by respondent. The
Court is of the opinion to make an award in this claim for the reasons more fully
stated below.
The incident giving rise to this claim occurred between 10:00 a.m. and
12:30 p.m. on May 24, 2005. Route 21 is a two-lane highway at the area of the
incident involved in this claim. Chad Haynes testified that he and his wife were
delivering mail near Sissonville and that they had to cross the white line lane marker
along the edge of the pavement surface to get to the mail boxes. He stated that there
was no indication, no signs and no traffic cones, of wet paint on the roads. He
further stated that he never saw any workmen on Route 21 painting lines. Mr.
Haynes testified that he could tell that the lines had been recently painted but there
was no indication of when they were painted. Claimants first noticed that paint had
gotten on their truck after they were finished delivering all the mail. Tracy Haynes
testified that the paint was splashed on both doors on the passenger side, behind the
rear tire, and in the fender wells. Claimants' vehicle sustained damage totaling
$2,045.90.
The position of the respondent is that it did not have actual or constructive notice of the condition on Route 21 at the site of the claimants' incident for the date
in question. Respondent indicated to the Court at the hearing of this matter that it
had subcontracted this line painting project on Route 21; however, the Court is aware
that contracts with respondent for highway related projects have a hold-harmless
clause, and that the subcontractor is ultimately responsible for any compensation that
is granted against respondent. Respondent did not present any witnesses or evidence
at the hearing of this matter.
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. Atkins vs.
Sims, 130 W.Va. 645; 46 S.E.2d 81 (1947). In order to hold respondent liable for
road defects of this type, a 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 instant case, the Court is of the opinion that respondent had at least
constructive notice of the recently painted white line lane markers which claimants'
vehicle struck and that the paint presented a hazard to the traveling public. That
there were no warning signs or indicators of fresh paint on the road leads the Court to
conclude that respondent had notice of this hazardous condition and respondent had
an adequate amount of time to take corrective action. Thus, the Court finds
respondent negligent and claimants may make a recovery for the damage to their
vehicle.
In accordance with the findings of fact and conclusions of law stated herein
above, the Court is of the opinion to and does make an award to the claimants in this
claim in the amount of $2,045.90.
Award of $2,045.90.
__________________
OPINION ISSUED JUNE 5, 2007
ROBERT NUCKOLLS
VS.
DIVISION OF HIGHWAYS
(CC-06-213)
Claimant appeared pro se.
Jason C. Workman, Attorney at Law, for respondent.
PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation
entered into by claimant and respondent wherein certain facts and circumstances of
the claim were agreed to as follows:
1. On May 5, 2006, claimant was traveling on Kelly's Road in Pond Gap,
Kanawha County, when he was involved in an automobile accident due to a stop sign
that was missing.
2. Respondent was responsible for the maintenance of Kelly's Road which it
failed to maintain properly on the date of this incident.
3. Claimant and respondent have agreed that an award of $3,550.00 to be a
fair and reasonable amount to settle this claim.
The Court has reviewed the facts of the claim and finds that respondent was
negligent in its maintenance of Kelly's Road on the date of this incident; that the
negligence of respondent was the proximate cause of the damages sustained by
claimant; and that the amount of the damages agreed to by the parties is fair and
reasonable. Thus, claimant may make a recovery for his loss.
Accordingly, the Court is of the opinion to and does make an award in the
amount of $3,550.00.
Award of $3,550.00.
REFERENCES
Page
I.COURT OF CLAIMS126
II.CRIME VICTIMS COMPENSATION FUND204
I.COURT OF CLAIMS
The following is a compilation of head notes representing decisions from
July 1, 2005 to June 30, 2007. Because of time and space constraints, the Court has
decided to exclude certain decisions, most of which involve vendors, typical road
hazards claims and expense reimbursements.
BERMS - See also Comparative Negligence and Negligence
BRIDGES
CONTRACTS
COMPARATIVE NEGLIGENCE - See also Berms; Falling Rocks
and Rocks; Negligence & Streets and Highways
DAMAGES
DRAINS and SEWERS
FALLING ROCKS AND ROCKS - See also Comparative Negligence
and Negligence
LEASES
MOTOR VEHICLES
NEGLIGENCE - See also Berms; Falling Rocks and Rocks & Streets
and Highways
NOTICE
PEDESTRIANS
PRISONS AND PRISONERS
STATE AGENCIES
STREETS & HIGHWAYS - See also Comparative Negligence and
Negligence
TREES and TIMBER
VENDOR
VENDOR - Denied because of insufficient funds
BERMS - See also Comparative Negligence and Negligence
BELL V. DIVISION OF HIGHWAYS (CC-05-212)
Claimant brought this action for vehicle damage which occurred when his
vehicle struck a broken section of pavement while he was traveling on Route 21 in
Monongalia County. The claimant testified that he was driving close to the edge of
the road because there was a tractor trailer traveling towards him in the opposite
lane. The position of the respondent was that it did not have actual or constructive
notice of the condition on Route 21at the site of the claimant's accident for the date
in question. The Court found that respondent had at least constructive notice of the
broken section of highway presented a hazard to the traveling public. Award of
$137.80.p.36
EISENMAN V. DIVISION OF HIGHWAYS (CC-04-864)
Where claimants brought this action for vehicle damage which occurred
when their vehicle struck a washed out shoulder of the road, the Court held that
respondent had notice of this hazardous condition and failed to take corrective
action. Award of $1,000.00.
p.
41
GIVENS V. DIVISION OF HIGHWAYS (CC-04-505)
Claimants brought this action for vehicle damage when their vehicle
struck a hole along the berm of the road while one of the claimants was traveling
on W.Va. Route 31 in Wood County. The Court held that respondent had at least
constructive notice of the hole, which presented a hazard to the traveling public.
Award of $250.00.
p. 12
LUCAS V. DIVISION OF HIGHWAYS (CC-05-245)
Claimant's vehicle was damaged when it struck a washed out portion of
the shoulder of the road while she was traveling on W.Va. Route 15 in Webster
County. Even though the Court found that respondent had at least constructive
notice of the washed out shoulder, the Court held that claimant was twenty-five
percent (25%) negligent because she drove onto the shoulder of the road without
being forced to do so by oncoming traffic. Award of $2,694.34.p.
49
MATTHEWS V. DIVISION OF HIGHWAYS (CC-06-242)
Claimant brought this action for vehicle damage which occurred when her
vehicle struck an eroded section of berm while she was traveling on County Route
7/4 in Mercer County. In the instant case, the Court found that respondent had at
least constructive notice of the eroded berm, which presented a hazard to the
traveling public. Thus, the Court found that respondent was negligent. Award of
$500.00.p.
93
MOLES V. DIVISION OF HIGHWAYS (CC-02-288)
Claimant brought this action for personal injuries which occurred when
the vehicle in which he was a passenger struck another vehicle as he and his wife
were traveling northbound on Route 34 near Pliny, Putnam County. Claimant
contends that the proximate cause of the accident was that respondent had allowed
the weeds on the area of the berm of Route 35 to grow above the guardrail creating
an obstruction of the highway right of way and obscuring the vision of the driver
emerging from his particular driveway along Route 35. The position of respondent
was that it did not have actual or constructive notice of the condition on Route 35
at the site of claimant's accident for the date in question. The Court was of the
opinion that respondent had no notice of the condition on Route 35 with respect to the overgrown weeds on the berm at the scene of the accident. The Court was also
of the opinion that the weeds were not the proximate cause of the accident, but that
the driver proceeded onto Route 35 without regard to oncoming vehicles. Claim
disallowed.p.
121
NELSON V. DIVISION OF HIGHWAYS (CC-04-034)
The parties stipulated that claimant was traveling on Jerico Road near
Point Pleasant, Mason County, when his vehicle struck a broken edge in the road,
damaging a rim. Respondent was responsible for the maintenance of the road,
which it failed to maintain properly on the date of this incident. As a result,
claimant's vehicle sustained damage in the amount of $204.93. The Court found
that respondent was negligent in its maintenance of Jerico Road and the amount
agreed to by the parties was fair and reasonable. Award of $204.93.p.
11
ROSE V. DIVISION OF HIGHWAYS (CC-05-115)
Claimant brought this action for vehicle damage which occurred when her
vehicle struck a hole on the edge of the highway while she was traveling on Van
Clevesville Road near Martinsburg, Berkeley County. The Court found that
respondent had at least constructive notice of the hole, which presented a hazard to
the traveling public. The size of the hole and the time of year in which claimant's
incident occurred led the Court to conclude that respondent had notice of this
hazardous condition and had an adequate amount of time to take corrective action.
Award of $500.00.p.
35
SPAULDING V. DIVISION OF HIGHWAYS (CC-02-119)
Claimant brought this action for personal injuries and vehicle damage
which occurred while she was traveling on W.Va. Route 501 in Cross Lanes,
Kanawha County. Claimant's vehicle went into a washed out area of the shoulder,
and the claimant's vehicle was totaled in the accident. The claimant's physician
testified that claimant suffered from a broken hip socket, broken tibia and broken
fibia, and permanent injuries. The Court found that claimant has experienced and
will continue to endure severe pain and suffering as a result of her injuries. The
Court held that an award of $498,639.36 represents a fair and reasonable
reimbursement to claimant for the resulting out-of-pocket medical bills, lost wages,
future medical treatment, property loss, and past and future pain and suffering.
However, the Court found that claimant was twenty-five (25%) percent negligent
and reduced the amount of the award to$373,979.52.p. 10
BRIDGES
BIRD V. DIVISION OF HIGHWAYS (CC-04-232)
Claimant and her parents were traveling on the Amandaville Bridge in
Kanawha County when their vehicle struck a hole in the road damaging a tire and a
rim. The respondent was responsible for maintenance of the bridge, which it failed
to properly maintain on the date of this incident. The vehicle sustained damage in
the amount of $662.35, however, the insurance deductible was $250.00. The Court
found that respondent was negligent in its maintenance of the bridge and awarded
the claimant $250.00p.
71
CONNER V. DIVISION OF HIGHWAYS (CC-05-195)
Claimant's vehicle struck a piece of wood lying in the road while he was
traveling west on I-64 in Summers County on the New River Bridge. The Court
found that respondent did not have actual or constructive notice of the piece of
wood prior to the incident in question and there was insufficient evidence of
negligence upon which to justify an award. Claim disallowed.p.
57
CRITES V. DIVISION OF HIGHWAYS (CC-04-422)
Claimants brought this action for vehicle damage which occurred when
their vehicle struck a hole while they were traveling on I-79 near the Simpson
Creek Bridge in Harrison County. The Court found that respondent had at least
constructive notice of the hole, which presented a hazard to the traveling public.
See Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986). Award of $500.00
p.
34
HAINER V. DIVISION OF HIGHWAYS (CC-04-533)
The parties stipulated that claimant was traveling on a bridge in Chief
Logan State Park in Logan County when several boards on the bridge came loose
and damaged the underside of claimant's vehicle. Respondent was responsible for
the maintenance of the road which it failed to properly maintain. The parties
agreed that $1,568.23 was a fair and reasonable amount of damages. Thus, the
Court found that the respondent was negligent and awarded claimant $1,568.23.
p.
114
MIGHTY MITE CORPORATION AND GROGG V. DIVISION OF
HIGHWAYS (CC-04-382 and CC-04-383)
Claimants brought actions for property damage which they alleged
occurred as a result of respondent's negligent construction of a bridge. Since the
claims arose from the same incident, they were consolidated for hearing. On May
28, 2004, a heavy rainfall occurred which resulted in flooding in the basements of
both properties. On prior occasions, the Court has held that respondent may be
held liable for the conditions posed by a bridge. Malone v. Division of Highways,
23 Ct. Cl. 216 (2000). Respondent has an obligation to construct bridges in such a
manner as not to create a subsequent flood problem for nearby property owners.
Daniels v. Dept. of Highways, 16 Ct. Cl. 43 (1986). However, in each of the prior
opinions where an award was made, the bridge in question was erected at a site not
previously spanned by a public roadway. Here the facts are otherwise. The Court
was not prepared to hold that respondents had either a legal or a moral obligation
to replace all of the very old bridges in the state which may create a damming
effect or impede the free flow of water during a major flood. Claim disallowed.
p.
79
MILLER V. DIVISION OF HIGHWAYS (CC-05-425)
The parties stipulated that claimant Richard Miller was operating his truck
on Route 60 across the Amandaville Bridge when his vehicle struck a large hole in
the bridge. As a result, claimant suffered severe physical injuries that required
medical treatment. The Court found that respondent was negligent and awarded
$110,000,00.p.
90
PARKER V. DIVISION OF HIGHWAYS (CC-04-133)
The parties stipulated that claimant's vehicle struck a steel expansion
joint protruding from a bridge; that respondent was responsible for maintenance of
the road which it failed to properly maintain; and that $314.36 was a fair and
reasonable amount for damages. Award of $314.36.p.
32
SAMPLES V. DIVISION OF HIGHWAYS (CC-04-132)
The parties stipulated that claimant was driving on I-79 in Kanawha
County when the claimant's vehicle struck part of a bridge that was protruding
upward; that respondent was responsible for maintenance of the road which it
failed to properly maintain; and that damages in the amount of $315.60 was fair
and reasonable. Award of $315.60p.
31
WOLFE V. DIVISION OF HIGHWAYS (CC-05-306)
The parties stipulated that claimant was traveling on a bridge on Route
218 near Fairview, Marion County, when her vehicle struck a fastener attached to a
steel plate causing damage to a tire. The Court found that the negligence of
respondent was the proximate cause of the damages sustained and awarded $83.07.
p.
50
CONTRACTS
ARAMARK FACILITY SERVICES, INC. V. CONCORD UNIVERSITY
(CC-04-436)
Claimant brought this action for wages paid to employees under the terms
of the management contract between Aramark and Concord in which Aramark
agreed to provide physical plant, grounds keeping, and custodial services at
Concord, and Concord was to reimburse Aramark for the salaries and benefits
associated with all Aramark personnel. Seasonal painters hired to paint dormitory
rooms filed a complaint against Aramark with the Division of Labor under the
Prevailing Wage Act, and Aramark was ordered to pay $508,169.66 to the
complainants.
Aramark filed a claim in this Court for $557,037.52, which includes
post-judgement interest, based upon its position that Concord has a duty to
reimburse it for this amount. The Court held that there was a moral obligation on
the part of Concord to reimburse Aramark for the amounts assessed as wages paid
to the employees who performed services requested by Concord. Therefore, the
Court denied respondent's motion to dismiss and granted claimant's motion for
summary judgment. Award of $557,037.52
.p.
8
COMPARATIVE NEGLIGENCE - See also Berms; Falling Rocks and
Rocks; Negligence & Streets and Highways
COOK V. DIVISION OF HIGHWAYS (CC-04-185)
Where claimant's vehicle sustained damage from striking a hole in the
road, the Court found that respondent had at least constructive notice of the hole.
However, the Court held that claimant was negligent in driving too fast for the
road conditions and could recover only sixty percent (60%) of his damages. Award
of $403.78.p.
22
EGGERICHS V. DIVISION OF HIGHWAYS (CC-04-520)
Claimant brought this action for vehicle damage which occurred when her vehicle struck a hole when she was traveling on Route 17 in Fayette County. The
Court found that respondent had at least constructive notice of the hole, which
presented a hazard to the traveling public. However, the Court found that claimant
was aware of the hole and could have slowed down prior to striking it. Thus, the
Court found that claimant was forty percent (40%) negligent. Award of $101.99.
p.
94
HILES V. DIVISION OF HIGHWAYS (CC-05-355)
When claimant pulled off the road on Route 94 to attend a yard sale, her
vehicle struck a hole that she had not seen because of grass and weeds in the area.
The Court found that respondent had at least constructive notice of the hole and had
an adequate amount of time to take corrective action. However, the Court found that
the claimant was twenty percent
(20%) negligent because she had turned her vehicle
too sharply while pulling off the road. Award of $1,949.10.p.
109
LEVITT V. DIVISION OF HIGHWAYS (CC-05-344)
Claimant brought this action for vehicle damage which occurred when he
was traveling on Route 52 near Bluewell, Mercer County. Claimant stated that
when he drove his vehicle to the side of the road to avoid an oncoming vehicle, he
struck a hole in the road. Respondent alleged that it did not have actual or
constructive notice of the condition on Route 52 at the site of claimant's accident.
The Court found that respondent had at least constructive notice of the hole.
However, the evidence established that claimant knew of the condition prior to the
incident, and that there was an opportunity for him to slow his vehicle down and
avoid the hole. The Court held that claimant was at least fifty percent (50%)
negligent. Thus, the claimant could not make a recovery for his loss.p.
115
LUCAS V. DIVISION OF HIGHWAYS (CC-05-245)
Claimant's vehicle was damaged when it struck a washed out portion of
the shoulder while she was traveling on W.Va. Route 15 in Webster County. Even
though the Court found that respondent had at least constructive notice of the
washed out shoulder, the Court held that claimant was twenty-five percent (25%)
negligent because she drove onto the shoulder of the road without being forced to
do so by oncoming traffic. Award of $2,694.34.p.
49
MEADOWS V. DIVISION OF HIGHWAYS (CC-06-253)
Where claimants' motorcycle struck a hole while traveling on Eccles Road
in Beckley, Raleigh County, the Court found that respondent had at least
constructive notice of the hole and was negligent. However, the Court further found
that claimant was thirty percent (30%) negligent. Since claimant saw the holes, he
should have stopped his motorcycle to avoid them. Award of $350.00.p.
100
MCGREW V. DIVISION OF HIGHWAYS (CC-03-435)
Claimant brought this action for vehicle damage when her vehicle struck a
hole while traveling on County Route 73 near Charleston, Kanawha County.
Although respondent had at least constructive notice of the hole, the Court also
found that claimant was partially negligent since she knew about the construction
work in the area prior to the date of the accident. Thus, the Court held that claimant
was twenty percent (20%) negligent. Award of $101.74.p.
3
VANCE V. DIVISION OF HIGHWAYS (CC-06-053)
Claimant brought this action for vehicle damage which occurred when his
truck struck a hole in the road while traveling on Route 41 in Nicholas County. The
Court found that respondent had at least constructive notice of the hole, which
presented a hazard to the traveling public. Thus, the Court found that respondent
was negligent. However, the Court also held that claimant was twenty-five (25%)
percent negligent in this claim since he could have avoided the hole. Award of
$441.45p.
76
DAMAGES
BELLER V. DIVISION OF HIGHWAYS (CC-04-291)
The parties stipulated that claimant was a passenger in a vehicle when
claimants were involved in an accident on County Route 3/4 in Raleigh County.
Respondent was responsible for the maintenance of the road which it was found to
have failed to properly maintain on the date of the incident in a separate action
styled Williams v. Division of Highways, (CC-04-278). The parties agreed to settle
this claim for $12,500.00 for claimant's out of pocket medical expenses and for pain
and suffering. The Court found that respondent was negligent and awarded claimant
$12,500.00.p.
78
CALLAHAN V. DIVISION OF HIGHWAYS (CC-04-044)
Claimant brought this action for vehicle damage which occurred when her
vehicle struck a section of the road on County Route 7 in Wayne County which had
subsided
. The Court found that respondent had actual notice of the slide in the road,
and respondent had an adequate amount of time to take corrective action. Although
respondent placed warning signs at the site, the Court found that respondent did not
take sufficient measures to protect the traveling public from the dangerous
conditions on the road. Award of $900.00. p.
29
DADDYSMAN V. DIVISION OF HIGHWAYS (CC-04-055)
The parties stipulated that claimant's vehicle struck a hole in the road
causing vehicle damage; that respondent was responsible for the maintenance of the
road; and that the amount of $250.00 was a fair and reasonable amount of damages.
Award of $250.00.p.
31
HUDNALL V. DIVISION OF HIGHWAYS (CC-05-035)
The parties stipulated that claimant was traveling on Dairy Road in Putnam
County when her vehicle struck a hole in the road causing damage; that respondent
was responsible for the maintenance of Dairy Road, which it failed to properly
maintain on the date of this incident; and that respondent agreed that the amount of
damages was fair and reasonable. The Court found that respondent was negligent in
its maintenance of the road. Award of $500.00.p.
74
LAVENDER V. DIVISION OF HIGHWAYS (CC-03-498)
Claimant brought this action for vehicle damage when her vehicle struck a
section of broken pavement while traveling along a road maintained by respondent.
The Court found that respondent had notice of the hazardous condition and had an
adequate amount of time to take corrective action and warn the traveling public of
the hazard. Award of $500.00
.p.
2
LONG V. DIVISION OF HIGHWAYS (CC-03-380)
Claimant brought this action for vehicle damage when his motorcycle
struck a hole on Route 34 in Teays Valley, Putnam County. The
Court found that
respondent had constructive notice of the hole based on its size and the time of year
in which the incident occurred. Furthermore, respondent had an adequate amount of
time to take corrective action. See Chapman vs. Dept. of Highways, 16. Ct. Cl. 103
(1986).
Award of $194.23.p. 4
MARTIN V. DIVISION OF HIGHWAYS (CC-04-028)
Claimant brought this action for vehicle damage when his vehicle struck a
broken stretch of road. The Court held that the respondent had at least constructive
notice of the slide in the road, and that respondent had an adequate amount of time
to take corrective action. See Chapman vs. Dept. of Highways, 16 Ct. Cl. 103
(1986). Since the Court found that respondent was negligent, claimant was awarded
$101.22 in damagesp. 28
PANHANDLE HOMES INC., V. DIVISION OF HIGHWAYS (CC-05-400)
Claimant brought this action for vehicle damage which occurred when he
was backing his vehicle onto a road maintained by respondent and one of his tires
struck a broken off sign post. The Court found that respondent had at least
constructive notice of the broken sign post, which presented a hazard to the
traveling public. Thus, the Court found that respondent was negligent and awarded
claimant $325.00.p.
112
PANRELL V. DIVISION OF HIGHWAYS (CC-02-200)
Claimant brought this action for personal injury which occurred when his
mountain bicycle struck a hole while he was traveling down a road maintained by
respondent. The Court found that respondent had at least constructive notice of the
hole and had an adequate amount of time to take corrective action. Thus, the court
found that respondent was negligent and awarded $100,975.00
for claimant's
medical expenses, permanent injury, pain and suffering and diminished capacity to
enjoy lifep.
39
SMITH V. DIVISION OF HIGHWAYS (CC-05-254)
Claimant brought this action for property damage to his real estate which
he alleges occurred as a result of respondent's negligent maintenance of its roads.
Claimant's property is located adjacent to Route 924, and the fence on his property
is located adjacent to the road. The fence was damaged by large trucks and mobile
homes traveling around a curve in the road. The vehicles struck claimant's fence on
several occasions causing damage. The Court held that although the evidence
established that the respondent caused damage to claimant's property, there was no
evidence of negligence upon which to justify an award. Claim disallowed.p.
83
DRAINS and SEWERS
BEAL V. DIVISION OF HIGHWAYS (CC-04-222)
The parties stipulated that claimant's vehicle struck a sewer line that
extended up the road, damaging the front end of his vehicle; that respondent was
responsible for the maintenance of the road which it failed to properly maintain on
the date of the incident; and that $100.00 was a fair and reasonable amount of damages. Thus, the Court found that respondent was negligent and claimant could
recover $100.00 for his loss.p.
63
MEESTER V. DIVISION OF HIGHWAYS (CC-04-479)
Claimant brought this action for property damage to his real estate which
he alleges occurred as a result of respondent's negligent maintenance of a drainage
system. Heavy rainfall occurred on May 28 and June 22, 2004, which resulted in
flooding inside claimant's residence. The position of respondent was that it was not
negligent in its maintenance of the drainage system on County Route 60/2. The
Court has held that respondent has a duty to provide adequate drainage of surface
water, and drainage devices must be maintained in a reasonable state of repair.
Haught v. Dept. of Highways, 13 Ct. Cl. 237 (1980). In claims of this nature, the
Court will examine whether respondent negligently failed to protect a claimant's
property from foreseeable damage. Rogers vs. Div. of Highways, 21 Ct. Cl. 97
(1996). In the instant case, claimant failed to establish that respondent maintained
the drainage structures on County Route 60/2 in a negligent manner. The Court
concluded that the water that flowed into the culvert under claimant's property
would have flowed into that same area regardless of whether the culvert was
blocked or not. Claim disallowed.p.
123
MERCER V. DIVISION OF HIGHWAYS (CC-02-085)
Claimant brought this action for property damage when a heavy rainfall
occurred and a portion of the claimant's basement wall collapsed. The Court has
held that respondent has a duty to provide adequate drainage of surface water, and
drainage devices must be maintained in a reasonable state of repair. Haught v. Dept
of Highways,13 Ct. Cl. 237 (1980). To hold respondent liable for damages caused
by an inadequate drainage system, claimant must prove that respondent had actual
or constructive notice of the existence of an inadequate drainage system and a
reasonable amount of time to take corrective action. Orsburn v. Div. of Highways,
18 Ct. Cl. 125 (1991); Ashworth v. Div. of Highways, 19 Ct. Cl. 189 (1993). The
Court found that the respondent had constructive, if not actual, notice of the
drainage problem and had a reasonable amount of time to take corrective action.
Award of $29,593.50.p.
59
MIDDLETON V. DIVISION OF HIGHWAYS (CC-04-337)
Claimant brought this action for property damage which occurred as a
result of respondent's negligent maintenance of a drainage system. A heavy rainfall
occurred which resulted in flooding in the building on claimant's property. Claimant
asserted that when respondent paved the parking lot for the post office, the paving
cast water from both the lot and County Route 61/46 onto claimant's property.
Since claimant's property did not have a problem with flooding before respondent
paved the parking lot, the Court found that the respondent was liable for the
damages which proximately flowed from its inadequate protection of claimant's
property. The Court directed the Clerk of Court to place the claim on the docket for
a hearing on the matter of damages. After claimant provided documentation of her
loss, the Court found that $5,060.88 was a fair and reasonable amount to
compensate claimant.p.
78, 111
ROBINSON V. DIVISION OF HIGHWAYS (CC-04-631)
Claimant brought this action for vehicle damage which occurred when her vehicle struck a culvert while she was traveling on Summerlee Road in Fayette
County. Respondent cited W.Va. Code º 17-16-9 which provides that owners or
tenants of land fronting any state road shall construct and keep in repair all
approaches and driveways to any state road. The Court held that the respondent was
not responsible for the culvert that was located beneath a private driveway along
Summerlee Road. Claim disallowed.p.
72
FALLING ROCKS AND ROCKS - See also Comparative Negligence and
Negligence
BLAIR V. DIVISION OF HIGHWAYS (CC-06-080)
Where claimant's vehicle struck a rock while traveling northbound on
Route 2 in Marshall County, the Court found that the actions taken by respondent
were not adequate to protect the traveling public from a known hazard. Thus,
respondent was liable for damages. Award of $262.74.p.
98
BROWNING V. DIVISION OF HIGHWAYS (CC-05-152)
Claimants brought this action for vehicle damage which occurred when
their vehicle struck rocks while one of the claimants was traveling on Route 10 in
Logan County. Claimant stated that she was traveling in the right lane when rocks
from the hillside adjacent to Route 10 fell onto her vehicle. The Court found that
respondent had at least constructive notice of rock fall hazards in that area. Thus,
respondent was liable for the damages to claimants' vehicle. Award of $500.00.
p.
106
CAMPBELL V. DIVISION OF HIGHWAYS (CC-04-149)
The parties stipulated that claimant's vehicle struck a rock on W.Va. Route
19 near Mount Lookout, Nicholas County, which caused vehicle damage; that
respondent was responsible for maintenance of the road which it failed to properly
maintain; and that $226.73 was a fair and reasonable amount of damages. Award of
$226.73.p. 33
CARR V. DIVISION OF HIGHWAYS (CC-04-116)
The parties stipulated that claimant was traveling on I-64 at the base of
Sandstone Mountain when his vehicle struck a rock in the road. Respondent was
responsible for the maintenance of I-64 which it failed to properly maintain on the
date of the incident. As a result, claimant's vehicle sustained damage in the amount
of $3,752.53. Claimant's insurance deductible was $500.00. The Court found that
respondent was negligent in its maintenance of I-64 on the date of this incident, and
that the amount of damages agreed to by the parties was fair and reasonable. Award
of $500.00.p. 122
CLINE V. DIVISION OF HIGHWAYS (CC-05-427)
Claimant brought this action for vehicle damage which occurred when her
vehicle struck a boulder as she was traveling westbound on I-64 in Kanawha
County. To hold respondent liable, claimant must establish by a preponderance of
the evidence that respondent had actual or constructive notice of the road defect at
issue and a reasonable amount of time to take corrective action. Chapman v. Dept.
of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). In the present claim, it was unclear from the evidence adduced at trial where the
rock that claimant's vehicle struck came from. In addition, there
was no evidence of
negligence on the part of respondent upon which to base an award. Claim
disallowed. p.
88
DIETZ V. DIVISION OF HIGHWAYS (CC-05-010)
Where claimant's vehicle struck rocks while traveling through an area
known as "the narrows" in Marshall County, the Court found that respondent had
failed to provide adequate protection to the traveling public in this area where rock
fall is common. Award of $216.24.p.
44
FINDO V. DIVISION OF HIGHWAYS (CC-06-064)
Claimant brought this action for vehicle damage when a falling rock struck
his vehicle while traveling on Route 250 in Fairmont, Marion County. The evidence
established that respondent did not have actual or constructive notice of the rocks
that had fallen on Route 250 prior to the incident in question. Consequently, there
was insufficient evidence of negligence upon which to justify an award. Claim
disallowed.p.
92
FURBEE V. DIVISION OF HIGHWAYS (CC-06-031)
Where claimant's vehicle struck rocks while traveling on State Route 2 in
the Glendale area, also known as "the narrows" in Marshall County, the Court
found that respondent's measures to protect the public in this area have proven
inadequate. The Court has previously made awards in many claims which occurred
in this specific section of State Route 2. See Branicky v. Div. of Highways, 24 Ct.
Cl. 273 (2003); Cusick v. Div. of Highways, 24 Ct. Cl. 216 (2002); Hall v. Div. of
Highways, 24 Ct. Cl. 212 (2002); Foster v. Div. of Highways,23 Ct. Cl. 248 (2000);
Williams v. Div. of Highways, CC-99-114 (Ct. Cl. Dec. 6, 1999); Hundagen v. Div.
of Highways, CC-98-303 (Ct. Cl. Dec. 6, 1999). Thus, the Court was of the opinion
that respondent is liable for the damages which proximately flow from its
inadequate protection of the traveling public in this specific location of State Route
2 in Marshall County. Award of $1,012.97.p.
97
GALLOURAKIS V. DIVISION OF HIGHWAYS (CC-06-093)
Claimant brought this action for vehicle damage which occurred when his
vehicle struck rocks while she was traveling on State Route 2 in the Glendale area,
also known as "the narrows" in Marshall County. In order to hold respondent liable,
claimant must establish by a preponderance of the evidence that respondent had
actual or constructive notice of the road defect in question and a reasonable amount
of time to take corrective action. Chapman v. Dept. of Highways, 19 Ct. Cl. 103
(1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). The Court held that
respondent had constructive notice of the rock fall hazards at issue. Therefore,
respondent is liable for the damages which flow from its inadequate protection of
the traveling public in this specific location of State Route 2 in Marshall County.
Award of $500.00.p.
99
HOLSTEIN V. DIVISION OF HIGHWAYS (CC-05-194)
The parties stipulated that claimant was traveling on I-64 in Kanawha
County when her vehicle struck a rock in the road, damaging a tire and rim.
Respondent was responsible for the maintenance of I-63, which it failed to properly maintain on the date of this incident. Respondent agreed that $500.00 was a fair and
reasonable amount of damages. The Court found that respondent was negligent and
awarded claimant $500.00.p.
74
HUFF V. DIVISION OF HIGHWAYS (CC-04-567)
Claimant brought this action for vehicle damage when her vehicle struck
rocks while she was traveling on a road maintained by the respondent in Marshall
County. The Court found that even though the respondent had warning signs and
lights in place, these actions have not proved to be an adequate remedy to protect
the traveling public in this area where rocks frequently fall. Award of
$342.29. p. 42
LONG V. DIVISION OF HIGHWAYS (CC-03-501)
While claimant was traveling northbound on U.S. Route 220 near
Petersburg, Grant County, claimant's vehicle struck a rock causing damage to his
vehicle. Although the Court found that respondent had placed a fence to prevent
rocks from falling into the roadway, the fence was extensively damaged.
The Court
found that respondent was liable for the damages which flowed from its inadequate
protection of the traveling public. However, claimant failed to provide a copy of his
insurance declaration page for the Court to verify the amount of his insurance
deductible; thus the Court denied the claim.p.
61
LOUGHRIE V. DIVISION OF HIGHWAYS (CC-05-121)
Claimant brought this action to recover damages to his vehicle when his
vehicle struck rocks in Brooke County. The Court found that there was no evidence
of negligence upon which to justify an award. Claim disallowed.p.
56
PENNINGTON V. DIVISION OF HIGHWAYS (CC-05-255)
Claimant's vehicle struck a rock while traveling westbound on Route 50 in
Harrison County. The Court found that claimant did not establish that respondent
failed to take adequate measures to protect the safety of the traveling public on
Route 50. Thus, the Court held that there was no evidence of negligence on the part
of respondent upon which to base an award. Claim disallowed.p.
84
SHAW V. DIVISION OF HIGHWAYS (CC-05-290)
The parties stipulated that a large rock fell into a drainage ditch along
Camp Run, Doddridge County, causing water to wash out a tunnel beneath
claimant's property. A horse that was grazing on the property fell into the tunnel
and died. Respondent was responsible for the maintenance of Camp Run which it
failed to maintain properly on the date of the incident, and the Court found that
respondent was negligent. Claimant was awarded $2,000.00 for the value of the
horse. p. 84
STINES V. DIVISION OF HIGHWAYS (CC-05-062)
Claimant brought this action for vehicle damage when her vehicle, driven
by her daughter, struck a landslide. The Court held that claimant had not established
that respondent failed to take adequate measures to protect the safety of the
traveling public, and found that there was insufficient evidence of negligence on the
part of the respondent. See Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986).
Claim disallowed.p.
18
TAO V. DIVISION OF HIGHWAYS (CC-04-482)
Where claimant's vehicle struck rocks while traveling westbound on Route
60 near Huntington in Cabell County, the Court found that claimant had not
established that respondent failed to take adequate measures to protect the safety of
the traveling public on Route 60. Thus, the Court held that there was no evidence of
negligence upon which to base an award. Claim disallowed.p.
72
WEBB V. DIVISION OF HIGHWAYS (CC-04-095)
Claimants brought this action for vehicle damage when their vehicle was
struck by rocks which fell from the adjacent hillside and into their lane of traffic on
W.Va. Route 5 in Wirt County. In rock fall claims, the Court has held that the
unexplained falling of a rock onto a highway without a positive showing that
respondent knew or should have known of a dangerous condition posing injury to
person or property is insufficient to justify an award. See Coburn v. Dept. of
Highways, 16 Ct. Cl. 68 (1985).
In the instant case, the Court held that respondent
was not negligent because the respondent placed "falling rock" warning signs to
protect the safety of the traveling public. Claim disallowed.p.
7
WELLING V. DIVISION OF HIGHWAYS (CC-05-052)
The parties entered into a stipulation where they agreed that claimant's son
was traveling on a road maintained by defendant when the vehicle struck rocks in
the road; that respondent failed to properly maintain the road on the date of this
incident; and that the amount of $250.00 was a fair and reasonable amount of
damages. Award of $250.00.p.
46
ZERVOS V. DIVISION OF HIGHWAYS (CC-05-042)
Claimant's vehicle was damaged when it struck rocks in an area known as
"the narrows" in Marshall County. The Court held that although respondent had
placed warning signs in the area, these actions have not proven to be an adequate
remedy to protect the traveling public. Award of $500.00p.
45
MOTOR VEHICLES
HESS V. DIVISION OF MOTOR VEHICLES (CC-06-335)
Claimant sought $50.00 for towing expenses she incurred due to the
respondent's failure to properly transfer her license plate to the correct vehicle. In
its Answer, respondent admitted the validity of the claim. The Court is aware that
respondent did not have a fiscal method for paying claims of this nature. Therefore,
the Court awarded claimant $50.00.p.
94
ILSON V. DIVISION OF MOTOR VEHICLES (CC-06-117)
Claimant sought $155.00 for a title on a vehicle which respondent did not
process in a timely manner. In its Answer, respondent admitted the validity of the
claim and that the amount was fair and reasonable. Award of $155.00.p.
68
NEGLIGENCE - See also Berms; Falling Rocks and Rocks & Streets and
Highways
ALLEN V. DIVISION OF HIGHWAYS (CC-05-236)
Claimants brought this action for damages when their vehicle struck a loose manhole cover while claimant was traveling on Washington Street in
Charleston, Kanawha County. The evidence established that respondent was not
responsible for the manhole cover. Consequently, there was insufficient evidence of
negligence upon which to justify an award. Claim disallowed.p.
86
BUCHANAN VS. DIVISION OF HIGHWAYS (CC-04-180)
Claimant brought this action for vehicle damage which occurred when
their vehicle struck ice while traveling on a road maintained by respondent. Since
respondent was involved in snow and ice removal throughout Wood County on the
date of the incident, the Court found that there was insufficient evidence of
negligence upon which to justify an award. Claim disallowed.p.
13
CAMPBELL V. DIVISION OF HIGHWAYS (CC-04-149)
The parties entered into a stipulation where they agreed that claimant's
vehicle struck a rock in the road which caused vehicle damage; that respondent was
responsible for maintenance of the road which it failed to properly maintain; and
that $226.73 was a fair and reasonable amount of damages.p.
33
CARTER V. DIVISION OF HIGHWAYS (CC-04-545)
Claimant's motorcycle was damaged when it struck a hole while traveling
on a road maintained by respondent. The Court found that respondent had at least
constructive notice of the hole, which presented a hazard to the traveling public.
Also, respondent had an adequate amount of time to take corrective action. See
Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986). Therefore, the Court held
that respondent was negligent and awarded the claimant $500.00 in damages.
p. 24
DADDYSMAN V. DIVISION OF HIGHWAYS (CC-04-55)
The parties entered into a stipulation where they agreed that claimant's
vehicle struck a hole in the road causing vehicle damage; that respondent was
responsible for the maintenance of the road; and that the amount of $250.00 was a
fair and reasonable amount of damages.p.
31
DODDRILL V. DIVISION OF HIGHWAYS (CC-04-197)
The parties stipulated that claimant's vehicle struck a hole while traveling
on the Amandaville Bridge in Saint Albans, Kanawha County; that respondent was
responsible for maintenance of the road which it failed to properly maintain; and
that $500.00 was a fair and reasonable amount of damages. Award of $500.00.
p.
23
LAVENDER V. DIVISION OF HIGHWAYS (CC-03-498)
Claimant brought this action for vehicle damage when her vehicle struck a
section of broken pavement while traveling along a road maintained by the Division
of Highways. The Court found that respondent was negligent because it had notice
of the hazardous condition and had an adequate amount of time to take corrective
action and warn the traveling public of the hazard. Award of $500.00
.p.
2
MARTIN V. DIVISION OF HIGHWAYS (CC-04-028)
Claimant brought this action for vehicle damage when his vehicle struck a
broken stretch of road while he was traveling on Route 21 in Fayette County. The Court held that respondent had at least constructive notice of the slide in the road,
and had an adequate amount of time to take corrective action. See Chapman v. Dept.
of Highways, 16 Ct. Cl. 103 (1986). Award of $101.22.p.
28
MOONEY V. DIVISION OF HIGHWAYS (CC-04-858)
This parties stipulated that claimant was traveling on W.Va. Route 119
near Spencer, Roane, County, when her vehicle struck two broken signposts along
the road. As a result of the incident, claimant's vehicle sustained damage in the
amount of $389.56; however, claimant's insurance coverage provided for a $100.00
deductible feature for collision, and claimant was limited to a recovery in that
amount. The Court found that respondent was negligent in its maintenance of the
road, and that the amount of damages was fair and reasonable. Award of $100.00
p.
14
MOORE V. DIVISION OF HIGHWAYS (CC-04-098)
The parties stipulated that claimant's vehicle struck a piece of expansion
joint protruding from the highway; that respondent was responsible for the
maintenance of the road; and that respondent's negligence was the proximate cause
of the damages to claimant's vehicle. Award of $118.72p.
20
PANRELL V. DIVISION OF HIGHWAYS (CC-02-200)
Claimant brought this action for personal injury which occurred when his
mountain bicycle struck a hole while he was traveling down a road maintained by
respondent. The Court found that respondent had at least constructive notice of the
hole and had an adequate amount of time to take corrective action. Thus, the court
found that respondent was negligent and awarded claimant for his medical
expenses, permanent injury, pain and suffering and diminished capacity to enjoy
life. Award of $100,975.00p.
39
RHODES V. DIVISION OF HIGHWAYS (CC-02-175)
Where claimant's vehicle struck a sign post, the Court held that respondent
did not have actual or constructive notice of the broken signpost, which was not
within the State's right of way. Therefore, the Court found that there was
insufficient evidence upon which to justify an award. Claim disallowed.p.
1
ROESE V. DIVISION OF HIGHWAYS (CC-04-064)
The parties stipulated that claimant's vehicle struck a hole in the road's
surface; that respondent was responsible for maintenance of the road; that
respondent was negligent; and that $450.00 was a fair and reasonable amount of
damages.
Award of $450.00.p.
19
RUBENSTEIN V. DIVISION OF HIGHWAYS (CC-05-426)
Claimant brought this action for vehicle damage which occurred when his
vehicle struck a hole while he was traveling on Route 60 in South Charleston,
Kanawha County. Claimant stated that the hole appeared to be a cut in the road and
that there were no warning signs. Respondent stated that it did not have actual or
constructive notice of the condition on Route 60 at the site of claimant's accident
for the date in question. The witness for respondent testified that the cut looked like
a cut made by the water company, and he stated that there was no record of any work done by respondent along this stretch of Route 60. The Court found that
respondent had at least constructive notice of the hole which that respondent was
negligent. Award of $500.00.p.
113
SHIRK V. DIVISION OF HIGHWAYS (CC-04-159)
Where claimant's vehicle struck a broken section of the road, the Court
held that respondent had at least constructive notice of the hazardous condition
based upon the broken pavement's size and location along the road. In addition, the
Court found that respondent had an adequate amount of time to take corrective
action. See Chapman v. Dept. of Highways, 16 Ct. Cl. 103. (1986). Award of
$2,194.98.p.
21
NOTICE
CARTER V. DIVISION OF HIGHWAYS (CC-04-545)
Claimant's motorcycle was damaged when it struck a hole while traveling
on W.Va. Route 310 in Taylor County. The Court found that respondent had at least
constructive notice of the hole, which presented a hazard to the traveling public.
Also, respondent had an adequate amount of time to take corrective action. See
Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986). Therefore, the Court held
that respondent was negligent and awarded claimant $500.00 in damages
. . p. 24
FORSTER V. DIVISION OF HIGHWAYS (CC-05-348)
Claimant brought this action for vehicle damage when her vehicle struck
an object in the roadway while she was traveling on the exit ramp of I-470 onto
Route 2 in Ohio County. Claimant testified that the object appeared to be a piece of
concrete that had broken off the road. The Court found that respondent had at least
constructive notice of the object. Thus, the Court found that respondent was
negligent. Award of $450.23.p.
95
KAUFMAN V. DIVISION OF HIGHWAYS (CC-06-004)
Where claimant's vehicle struck a piece of concrete while traveling
southbound on W.Va. Route 2 in Ohio County, the Court held that respondent did
not have actual or constructive notice of the piece of concrete on Route 2 prior to
the incident in question. Therefore, there was insufficient evidence of negligence
upon which to justify an award. Claim disallowedp.
117
LAVENDER V. DIVISION OF HIGHWAYS (CC-03-498)
Claimant brought this action for vehicle damage when her vehicle struck a
section of broken pavement while traveling along a road maintained by respondent.
The Court found that the respondent was negligent because it had notice of the
hazardous condition and had an adequate amount of time to take corrective action
and warn the traveling public of the hazard. Award of $500.00
.p.
2
LAWRENCE V. DIVISION OF HIGHWAYS (CC-05-333)
Claimant brought this action for vehicle damage which occurred when his
vehicle struck a hole while he was traveling on Route 60 near South Charleston,
Kanawha County. The Court found that respondent had at least constructive notice
of the hole, which presented a hazard to the traveling public. Award of $138.21.
p. 108
MARTIN V. DIVISION OF HIGHWAYS (CC-04-028)
Claimant brought this action for vehicle damage when his vehicle struck a
broken stretch of road. The Court held that respondent had at least constructive
notice of the slide in the road and that respondent had an adequate amount of time
to take corrective action. See Chapman vs. Dept. of Highways, 16 Ct. Cl. 103
(1986). Thus, respondent was negligent. Award of $101.22p.
28
MASTERS V. DIVISION OF HIGHWAYS (CC-05-116)
Claimant brought this action for vehicle damage caused when her vehicle
struck a hole while she was traveling on County Route 51/1in Gerrardstown,
Berkeley County. The Court found that respondent had at least constructive notice
of the hole based on its size and the heavy amount of traffic on the road, and
respondent had an adequate amount of time to take corrective action. See Chapman
v. Dept. of Highways, 16 Ct. Cl. 103 (1986). Award of $101.67.p.
25
RICHMOND V. DIVISION OF HIGHWAYS (CC-03-375)
Where claimant's vehicle was damaged when it struck a hole while
traveling on County Route 22 in Berkeley County, the Court found that respondent
had at least constructive, if not actual notice of the hole, and that respondent had an
adequate amount of time to take corrective action. See Chapman v. Dept. of
Highways, 16 Ct. Cl. 103 (1986) Award of $239.88p.
26
SHOUP V. DIVISION OF HIGHWAYS (CC-04-570)
Claimant brought this action for vehicle damage when his vehicle struck
debris in the road. The Court found that respondent did not have actual or
constructive notice of the debris in the road prior to the incident in question. Claim
disallowed.p.
64
SLIGER V. DIVISION OF HIGHWAYS (CC-04-362)
Claimants brought this action for vehicle damage which occurred when
their vehicle struck a hole on Route 91 near Farmington, Marion County. The Court
held that respondent had at least constructive notice of the hole based on its size and
the time of year in which the incident occurred. See Chapman v. Dept. of Highways,
16 Ct. Cl. 103 (1986).p.
33
SMITH V. DIVISION OF HIGHWAYS (CC-05-361)
Claimants brought this action for vehicle damage when their vehicle struck
a hole while claimant was traveling on Jordan CreekRoad in Kanawha County. The
Court held that respondent had at least constructive notice of the hole, which
presented a hazard to the traveling public. Thus, the Court found that respondent
was negligent. Award of $500.00.p.
67
VIRDEN V. DIVISION OF HIGHWAYS (CC-05-402)
Claimant brought this action for vehicle damage when his vehicle struck a
hole while he was traveling northbound on County Route 7 in Brooke County. 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 v. Sims, 130
W.Va. 645; 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects
of this type, a claimant must prove that respondent had actual or constructive notice
of the defect and a reasonable time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986). In the instant case, the Court is of the opinion that
respondent had at least constructive notice of the hole, which presented a hazard to
the traveling public. Thus, the Court held that respondent was negligent. Award of
$100.00.
p. 96
WRIGHT V. DIVISION OF HIGHWAYS (CC-04-074)
Claimants' vehicle struck a hole in the road while traveling on County
Route 50/87 in Clarksburg, Harrison County. The Court held that respondent had at
least constructive notice, which presented a hazard to the traveling public. Award of
$500.00.
RHODES
p. 62
PEDESTRIANS
CRANE V. DIVISION OF HIGHWAYS (CC-05-302)
The parties stipulated that claimant was injured on a broken sign post at the
corner of Pennsylvania Avenue and Lee Street; that respondent was responsible for
the roadway signs located at the site of the incident which it failed to maintain
properly on the date in question; and that $750.00 for damages was fair and
reasonable. Thus, the Court awarded claimant $750.00.p.
87
NULL V. DIVISION OF HIGHWAYS (CC-03-495)
The parties stipulated that claimant was walking across 21st Street in Nitro,
Kanawha County, when she fell due to a crack in the road. Respondent was
responsible for the maintenance of 21st Street in Nitro, which it failed to properly
maintain on the date of the incident. Claimant and respondent agreed to settle the
claim for the total sum of $13,000.00. The Court awarded claimant $13,000.00.
p. 89
PRISONS AND PRISONERS
BARBOUR COUNTY COMMISSION V. DIVISION OF CORRECTIONS
(CC-05-137)
Claimant brought this action to recover costs for providing housing to a
prisoner who was sentenced to a State penal institution, but due to circumstances
beyond the control of the county, the prisoner had remained in custody of the
county for periods of time beyond the date of the commitment order. Respondent
admitted the validity of the claim in the amount of $21,750.00, and claimant agreed.
See County Comm'n. of Mineral County vs. Div. of Corrections, 18 Ct. Cl. 88
(1990). Award of $21,750.00p. 15
BLANKENSHIP V. REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY (CC-05-275)
Claimant sought $873.95 for items of personal property that were entrusted
to respondent's employees when he was taken to Southwestern Regional Jail, a
facility of respondent. Respondent admitted the validity of the claim but stated that
it did not have a fiscal method of paying claims of this nature. Thus, the Court made
an award of $873.95p.
16
DELANEY V. REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY (CC-06-123)
Claimant, an inmate at Western Regional Jail, sought $65.00 for items of
personal property that were entrusted to respondent. Respondent admits the validity
of the claim and that the amount was fair and reasonable. The Court has taken the
position in prior claims that when a bailment situation is created, respondent is
responsible for property of an inmate which is taken from that inmate, remains in its
custody, and is not returned to the inmate. Award of $65.00.p.
70
MONONGALIA GENERAL HOSPITAL V. DIVISION OF CORRECTIONS
(CC-05-214)
Claimant sought payment in the amount of $17,967.10 for medical services
rendered to an inmate in the custody of respondent at Huttonsville Correctional
Center. Respondent admitted the validity of the claim, and further stated that there
were insufficient funds in its appropriation for the fiscal year to pay the claim. The
Court held that an award could not be recommended based upon its decision in
Airkem Sales and Service, et. al v. Dept. of Mental Health, 8 Ct. Cl. 180 (1971).
Claim disallowed. p.
14
POWNALL V. REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY (CC-05-294)
Claimant brought this claim to recover the value of certain personal
property items that she alleged were lost by respondent. When claimant was
released from prison, it was discovered that her clothing, purse, wallet, driver's
license, and birth certificate were missing. The Court has held that a bailment
relationship exists when respondent records the personal property of an inmate,
takes it for storage purposes, and then has no satisfactory explanation for not
returning it. Page v. Division of Corrections, 23 Ct. Cl. 238 (2000); Heard v.
Division of Corrections; 21 Ct. Cl. 151 (1997). The Court found that respondent
was responsible for securing the claimant's property and failed to do so. Therefore,
the Court awarded claimant $310.00.p.
107
SAMPLES V. DIVISION OF CORRECTIONS (04-580)
The parties stipulated that claimant's property was documented and stored
while he was an inmate at Mount Olive Correctional Center. When claimant was
released from jail, he discovered that some of his personal items were missing.
Respondent and claimant agreed that $750.00 was a fair and reasonable amount of
damages. Award of $750.00p.
43
THOMPSON V. REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY (CC-06-131)
The parties reached a settlement in which they agreed that when claimant
was released from custody at South Central Regional Jail, it was discovered that his
jacket was missing from his personal property items stored by respondent.
Respondent admitted the validity of this claim, and the parties accepted that $75.00
was a fair and reasonable settlement. The Court found that the respondent was
responsible for the loss of claimant's jacket and awarded him. $75.00.p.
114
TYGART VALLEY TOTAL CARE CLINIC V. DIVISION OF CORRECTIONS
(CC-05-181)
Claimant sought payment for medical services rendered to inmates in the
custody of respondent at Pruntytown Correctional Center, a facility of respondent.
Respondent admitted the validity of the claim, and further stated that there were
insufficient funds in its appropriation for the fiscal year to pay the claim. The Court
believed that an award cannot be recommended based upon its decision in Airkem
Sales and Service, et. al vs. Dept. of Mental Health, 8 Ct. Cl. 180 (1971).p.
16
WALKER V. REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY (CC-04-624)
Claimant brought this action to recover the value of certain property which
she alleged was lost by respondent. Among the items were clothing, a six-diamond
ring valued at $2,114.70, a Black Hills ring valued at $230.02, and a mother's ring
valued at $424.00. The Court held that the values placed on claimant's rings by the
expert witness were fair and reasonable. Therefore, the Court awarded claimant
$2,920.72p.
68
STATE AGENCIES
MONROE COUNTY BOARD OF EDUCATION V. WEST VIRGINIA
DEPARTMENT OF EDUCATION (CC-03-572)
Dr. Lyn Guy, Superintendent of Monroe County Schools, and the Monroe
County Board of Education, brought this action to recover $112,571.38 which they
alleged was not paid to it by the respondent, West Virginia Department of
Education, when respondent failed to allocate a supplemental appropriation
proportionately to county boards of education in the 2004 fiscal year as provided by
statute. The Court held that respondent had a duty to follow W.Va. Code
§ 18-9A-
15(f) which requires respondent to treat all counties which experience an increase in
enrollment equally when funds are appropriated by the legislature. The Court
further stated that respondent had a legal obligation to follow the general statute
rather than the ambiguous language in the budget bill, which does not change the
provisions of the general statute already in law. The effect of respondent's
interpretation of the language would be to benefit certain counties to the detriment
of claimant. Thus, the Court awarded claimant
$112,571.38.p.
101
STREETS & HIGHWAYS - See also Comparative Negligence and Negligence
AREHART V. DIVISION OF HIGHWAYS (CC-05-429)
The parties stipulated that claimant was traveling on Mill Creek Road in
Charleston, Kanawha County, when her vehicle struck a hole in the road damaging
the tire. The Court found that respondent was negligent in its maintenance of Mill
Creek Road on the date of the incident, and that the negligence of respondent was
the proximate cause of the damages sustained by claimant's vehicle. Thus, claimant
was awarded $137.75 for her loss.p.
117
BUCHANAN V. DIVISION OF HIGHWAYS (CC-04-180)
Claimant brought this action for vehicle damage which occurred when
their vehicle struck ice while traveling on a road maintained by respondent. Since
respondent was involved in snow and ice removal throughout Wood County on the
date of the incident, the Court found that there was insufficient evidence of
negligence upon which to justify an award. Claim disallowed.p.
13
COOK V. DIVISION OF HIGHWAYS (CC-04-185)
Where claimant's vehicle sustained damage when it struck a hole in the
road, the Court found that respondent had at least constructive notice of the hole.
However, the Court held that claimant was negligent in driving too fast for the road
conditions and could recover for only sixty percent (60%) of his damages. Award of
$403.78.p. 22
CORLEY V. DIVISION OF HIGHWAYS (CC-05-345)
Where claimant's vehicle struck a piece of wood while traveling on I-79 in
Marion County, the Court found that claimant failed to establish by sufficient
evidence that the damage to her vehicle was the result of any negligence on the part
of respondent. Claim disallowed.p.
116
GEORGE V. DIVISION OF HIGHWAYS (CC-04-562)
Claimant brought this action for vehicle damage when his vehicle struck a
muffler while traveling on a road maintained by respondent. In the instant case,
there was no evidence that respondent had actual or constructive notice of the
debris on the road.
See Chapman v. Dept. of Highways, 16 Ct. of Cl. 103 (1986).
Therefore, there was insufficient evidence of negligence upon which to justify an
award. Claim disallowedp.
10
GERAUD V. DIVISION OF HIGHWAYS (CC-06-027)
The parties stipulated that claimant was traveling on Route 2 in Marshall
County when his vehicle sustained damage when it struck a sign lying in the road.
The Court found that respondent was responsible for the maintenance of Route 2,
and the negligence of respondent was the proximate cause of the damages to
claimant's vehicle. Award of $165.20.p.
91
GHAREEB V. DIVISION OF HIGHWAYS (CC-04-481)
The parties stipulated that claimant was traveling on I-64 when his vehicle
struck standing water in the road damaging his vehicle. Respondent was responsible
for the maintenance of I-64 which it failed to properly maintain on the date of the
incident, and claimant's vehicle sustained damage in the amount of $5,100.00.
Claimant's insurance deductible was $500.00 so his recovery was limited to that
amount. The Court held that the negligence of respondent was the proximate cause
of the damages to claimant's vehicle. Award of $500.00.p.
71
GUZMAN V. DIVISION OF HIGHWAYS (CC-05-347)
Where claimants' vehicle was damaged when it struck a hole while
traveling on Route 60 in Monongalia County, the Court found that respondent had
at least constructive notice of the hole. See Chapman v. Dept. of Highways, 16 Ct.
Cl. 103 (1986). Award of $296.69.p.
89
HARRINGTON V. DIVISION OF HIGHWAYS (CC-03-536)
Claimant brought this action for vehicle damage when her vehicle struck
an exposed rail at a railroad crossing while she was traveling on County Route 1
near Green Spring, Hampshire County. The Court found that respondent had at least
constructive notice of the exposed rail. See Chapman v. Dept. of Highways, 16 Ct.
Cl. 103 (1986). Even though a railroad company is typically responsible for the
maintenance of railroad crossings, respondent took part in repaving of that crossing
and in doing so, it assumed responsibility for the repairs. Award of $77.60.
p.
27
HAYNES V. DIVISION OF HIGHWAYS (CC-05-369)
Claimants brought this action for vehicle damage which occurred when
their vehicle traveled over wet paint while they were traveling on Route 21 near
Sissonville, Kanawha City. Claimant stated that there was no indication, via signs or
traffic cones, of wet paint on the roads. Claimants' vehicle sustained damage
totaling $2,045.90. The respondent asserted that it did not have actual or
constructive notice of the condition on Route 21 at the site of claimants' incident for
the date in question. The Court held that respondent had at least constructive notice
of the recently painted white line lane markers which claimant's vehicle
encountered, and that the paint presented a hazard to the traveling public. That there
were no warning signs or indicators of fresh paint on the road led the Court to
conclude that respondent had notice of the hazardous condition, and respondent had
an adequate amount of time to take protective action. Award of $2,045.90.p.
124
KINGERY V. DIVISION OF HIGHWAYS (CC-05-028)
The parties stipulated that claimant was traveling on Deary Road in Cabell
County when her vehicle struck a hole in the road; that respondent was responsible
for the maintenance of Deary Road, which it failed to properly maintain on the date
of the incident; and that claimant's vehicle sustained damages in the amount of
$654.11. The Court held that respondent was negligent and awarded the claimant
$654.11p.
73
LACY V. DIVISION OF HIGHWAYS (CC-05-390)
The parties stipulated that one of the claimants was traveling on
Woodward Drive in Charleston, Kanawha County, when their vehicle struck a hole
in the road, damaging a rim. The Court found that respondent was negligent in its
maintenance of Woodward Drive on the date of the incident, and that the negligence
of respondent was the proximate cause of the damages to the claimants' vehicle.
Thus, claimants were awarded $500.00 for their loss.p.
118
LANDERS V. DIVISION OF HIGHWAYS (CC-05-077)
Where claimant's vehicle was damaged when it slid on a patch of ice while
traveling on a road maintained by respondent, the Court held that respondent had at
least constructive notice of the condition in the area and had adequate time to take
corrective action. Award of $500.00.p.
47
LANHAM V. DIVISION OF HIGHWAYS (CC-05-103)
Claimant brought this action for vehicle damage which occurred when his
vehicle struck a hole as he was traveling east on County Route 74/9 in Ritchie
County. The Court held that respondent did not have actual or constructive notice of
the hole prior to the incident, and there was insufficient evidence of negligence
upon which to justify an award. See Adkins v. Sims, 130 W.Va. 645; 46 S.E.2d 81
(1947). Claim disallowed.p.
17
LONG V. DIVISION OF HIGHWAYS (CC-03-380)
Claimant brought this action for vehicle damage when his motorcycle
struck a hole in a road maintained by respondent which he was unable to avoid. The
Court found that respondent had constructive notice of the hole based on its size and the time of year in which the incident occurred. Furthermore, respondent had
adequate time to take corrective action. See Chapman vs. Dept. of Highways, 16. Ct.
Cl. 103 (1986).
The Court found that respondent was negligent. Award of
$194.23p.
4
MASTERS V. DIVISION OF HIGHWAYS (CC-05-116)
Claimant brought this action for vehicle damage caused when her vehicle
struck a hole in the road. The Court found that respondent had at least constructive
notice of the hole based on its size and the heavy amount of traffic on that road.
Also, the Court found that respondent had an adequate amount of time to take
corrective action. See Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).
Award of $101.67p.
25
NEAL V. DIVISION OF HIGHWAYS (CC-05-435)
Where claimant's vehicle struck a piece of tire on the road while she was
traveling on I-64 in Cabell County, the Court held that respondent did not have
actual or constructive notice of the tire, and there was insufficient evidence of
negligence upon which to justify an award. Claim disallowed.
p.
75
NUCKOLLS V. DIVISION OF HIGHWAYS (CC-06-213)
The parties stipulated that claimant was traveling on Kelly's Road in Pond
Gap, Kanawha County, when he was involved in an automobile accident due to a
missing stop sign. Respondent was responsible for the maintenance of Kelly's
Road, which it failed to maintain properly on the date of the incident. Claimant and
respondent agreed that an award of $3,550.00 was a fair and reasonable amount of
settlement. The Court finds that respondent was negligent in its maintenance of
Kelly's Road on the date of the incident and found that the amount of damages
agreed to by the parties was fair and reasonable. Award of $3,550.00.p.
125
O'BRIEN V. DIVISION OF HIGHWAYS (CC-04-515)
The parties stipulated that claimant was traveling on Route 16 in Calhoun
County when he was involved in a motorcycle accident which resulted in his death;
that respondent was responsible for maintenance of Route 16 on the date of the
incident; and that claimant and respondent agreed that the amount of $50,000.00 in
damages put forth by claimant was fair and reasonable. The Court found that
respondent was negligent and awarded the claimant $50,000.00.p.
106
PANRELL V. DIVISION OF HIGHWAYS (CC-02-200)
Claimant brought this action for personal injury which occurred when his
mountain bicycle struck a hole while he was traveling down a road maintained by
respondent. The Court found that respondent had at least constructive notice of the
hole and had an adequate amount of time to take corrective action. Thus, the Court
found that respondent was negligent and awarded claimant for his medical
expenses, permanent injury, pain and suffering and diminished capacity to enjoy
life. Award of $100,975.00p.
39
PHILLIPS V. DIVISION OF HIGHWAYS (CC-05-153)
Claimant's vehicle struck a hole while traveling through a repair site on
County Route 25 in Ohio County. The Court held that respondent had at least
constructive notice of the hole and that the conditions presented a hazard to the traveling public. Thus, the Court found that respondent was negligent. Award of
$50.00.p.
48
RILEY V. DIVISION OF HIGHWAYS (CC-06-197)
Claimants brought this action for vehicle damage which occurred when
their vehicle struck two holes while claimant was traveling on Route 19 in
Goodhope, Harrison, County. The Court held that respondent had at least
constructive notice of the holes and that the holes presented a hazard to the traveling
public. Thus, the Court found that respondent was negligent, and claimants were
awarded $194.65.p.
110
SMALL V. DIVISION OF HIGHWAYS (CC-06-060)
Claimant brought this action for vehicle damage when his vehicle struck a
hole while he was traveling on Sauls Run Road in Harrison County. The Court
found that respondent had at least constructive notice of the hole and thus,
respondent was negligent. Award of $336.50.p.
91
STARCHER V. DIVISION OF HIGHWAYS (CC-04-942)
Claimant's vehicle was damaged when it struck holes in the road while
traveling on Route 36 in Clay County. The Court found that respondent had at least
constructive notice of the holes, which presented a hazard to the traveling public.
Thus, the Court found that respondent was negligent, and awarded claimant
$285.07.p.
65
WENDT V. DIVISION OF HIGHWAYS (CC-05-013)
Claimant's vehicle sustained damage when it struck a slip in the road while
he was traveling west on County Route 94 in Marshall County. The Court found
that respondent did not have actual or constructive notice of the slip prior to the
incident in question. Therefore, there was insufficient evidence of negligence upon
which to justify an award. Claim disallowed.p.
54
WILLIAMS V. DIVISION OF HIGHWAYS (CC-05-312)
The parties stipulated that claimant was traveling on the entrance ramp to
I-64 from Route 119 in Charleston, Kanawha County, when her vehicle struck an
open lid containing wires to the street lights in the road, damaging a tire and rim.
The Court found that respondent was negligent in its maintenance of the entrance
ramp to I-64 from Route 119, and claimant was awarded $500.00. p.
85
YOUNG V. DIVISION OF HIGHWAYS (CC-03-298)
Claimant brought this action for vehicle damage which occurred when the
vehicle that his son was driving struck a hole in a road maintained by respondent.
The Court, relying upon a statement by the investigating officer at the scene, found
that claimant's son's negligence was the cause of the accident. The Court further
held that respondent was not negligent in its maintenance of the road. Claim
disallowed.p.
5
TREES and TIMBER
BERIWINKLE V. DIVISION OF HIGHWAYS (CC-05-424)
Claimant was traveling on Route 19 in Clarksburg, Harrison County when a tree fell onto their vehicle. The general rule of this Court with regard to tree fall
claims is that if a tree is dead and poses an apparent risk, then respondent will be
held liable. However, when an apparently healthy tree falls and causes property
damage as the result of a storm, the Court has held that there is insufficient evidence
of negligence upon which to justify an award. Wiles v. Division of Highways, 22 Ct.
Cl. 170 (1998); Gerritsen v. Dept. of Highways, 16 Ct. Cl. 85 (1986). In the instant
case, the Court found that respondent had no notice that the tree posed an apparent
risk to the public. The evidence adduced at the hearing established that the tree
appeared to be a live and healthy tree, and neither claimants nor respondent had
reason to believe that the tree was in danger of falling. Thus, claimants failed to
establish negligence on the part of respondent. Claim disallowed.p.
87
COLLINS V. DIVISION OF HIGHWAYS (CC-02-308)
Claimant brought this action for personal injuries which occurred when he
came upon a tree in the road while traveling on Route 83 in McDowell County.
Claimant stated that as he traveled around a curve in the road, he noticed that a tree
had fallen across both lanes of travel. Claimant testified that the tree appeared to be
alive. His vehicle struck the tree, and then struck a guardrail on the left side of
Route 83. As a result of the accident, claimant was life-flighted to Charleston Area
Medical Center. The position of respondent was that it did not have actual or
constructive notice of the condition on Route 83 at the site of claimant's accident
for the date in question. The Court found that neither claimant nor respondent had
reason to believe that the tree was in danger of falling. While there was evidence
that there were trees down throughout parts of the county and respondent was aware
of some of those trees, the Court found that there was no evidence presented that
respondent had actual or constructive notice of the tree that claimant's vehicle
struck on Route 83. Thus, the Court held that there was no negligence on the part of
the respondent. Claim disallowed.p.
119
GIBSON V. DIVISION OF HIGHWAYS (CC-04-439)
Claimant brought this action for vehicle damage when her vehicle struck a
tree that had fallen onto Route 25 in Fayette County. Claimant stated that the tree
appeared to be alive and covered the entire road. Respondent alleged that it did not
have actual or constructive notice of the condition on Route 25 at the site of
claimant's accident for the date in question. The Court held that respondent had no
notice that the tree at issue posed an apparent risk to the public. Neither claimant
nor respondent had reason to believe that the tree was in danger of falling. Claim
disallowed. p.
115
HAMNER V. DIVISION OF HIGHWAYS (CC-05-256)
Claimant brought this action for vehicle damage when his vehicle struck a
live tree and rocks from a hillside adjacent to Route 4 in Braxton County. The Court
found that claimant failed to establish that respondent did not take adequate
measures to protect the safety of the traveling public. Therefore, the Court held that
there was insufficient evidence of negligence upon which to base an award. Claim
disallowed.p.
66
MITCHEM V. DIVISION OF HIGHWAYS (CC-05-032)
Claimants brought this action for damage to their vehicle when a large tree
fell onto it. The general rule regarding tree fall claims is that if a tree is dead and poses an apparent risk, then respondent may be held liable. However, when a
healthy tree falls and causes property damage as the result of a storm, the Court has
held that there is insufficient evidence of negligence upon which to justify an award.
Wiles v. Division of Highways, 22 Ct. Cl. 170 (1998); Gerritsen v. Dept. of
Highways, 16 Ct. Cl. 85 (1986). The Court found that respondent did not have
notice that the tree posed a risk to the public. Therefore, there was insufficient
evidence of negligence upon which to justify an award. Claim disallowed.p.
55
MORRISON V. DIVISION OF HIGHWAYS (CC-05-374)
Claimant brought this action for vehicle damage which occurred when his
vehicle struck a tree limb hanging over the road while he was traveling on Route 31
in Cabell County. The Court determined that respondent was not negligent in its
maintenance of Route 31 on the date of claimant's incident since respondent
received notice of a branch in the road and responded in a timely manner. Claim
disallowed.p.
75
ROBINSON V. DIVISION OF HIGHWAYS (CC-06-079)
Claimants brought this action for vehicle damage and property damage
which occurred when a tree fell onto their property adjacent to Greenwood Road in
Greenwood, Doddridge County. When an apparently healthy tree falls and causes
property damage as the result of a storm, the Court has held that there is insufficient
evidence of negligence upon which to justify an award. Wiles v. Division of
Highways, 22 Ct. Cl. 170 (1998); Gerritsen v. Dept. of Highways, 16 Ct. CL. 85
(1986). The Court held that respondent had no notice that the tree at issue posed an
apparent risk to the public. Neither claimants nor respondents had reason to believe
that the tree was in danger of falling. Thus, the Court disallowed the claimp.
85
VENDOR
BARBOUR COUNTY COMMISSION V. DIVISION OF CORRECTIONS
(CC-05-137)
Claimant brought this action to recover $48,350.00 in costs for providing
housing to a prisoner who was sentenced to a State penal institution, but due to
circumstances beyond the control of the county, the prisoner had remained in the
custody of the county for periods of time beyond the date of the commitment order.
Respondent admitted the validity of the claim in the amount of $21,750.00, and
claimant agreed that this was the correct amount to which it was entitled. See
County Comm'n. of Mineral County v.
Div. of Corrections, 18 Ct. Cl. 88 (1990).
Award of $21,750.00.p.
15
CITIZENS TELECOMMUNICATIONS COMPANY OF WV V. SUPREME
COURT OF APPEALS (CC-05-096)
Claimant sought $2,553.62 plus interest for providing telephone services to
respondent. Respondent did not remit payment of the Universal Service Fund
charges at the time the invoices were rendered. Respondent stated that insufficient
funds expired in the appropriate fiscal year from which the charges could have been
paid. The Court awarded claimant $2,553.62.p.
83
COUNTRY INN & SUITES V. PUBLIC SERVICE COMMISSION (CC-06-394)
Claimant sought $3,325.58 for providing a conference room, lunch and equipment for an event hosted by respondent agency. The documentation for those
services was not processed for payment within the appropriate fiscal year; therefore,
claimant was not paid. Respondent admitted the validity of the claim as well as the
amount. The Court awarded claimant $3,325.58.p.
111
CRUSE V. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING (CC-06-
367)
Claimant sought $6,045.32 for investigative overtime work performed due
to the Sago Mine accident. Respondent admitted the validity of the claim and that
the amount was fair and reasonable. The Court was aware that respondent did not
have a fiscal method for paying claims of this nature and awarded claimant
$6,045.32.p.
111
EQUIFAX INFORMATION SERVICES LLC V. WEST VIRGINIA DIVISION
OF BANKING (CC-06-001)
Claimant sought $989.01 for providing services to respondent.
Documentation for those services was not processed for payment within the
appropriate fiscal year; therefore, claimant was not paid. Respondent admitted that
sufficient funds expired at the end of the appropriate fiscal year from which the
invoice could have been paid. Award of $989.01.p.
54
GHAREEB V. DIVISION OF REHABILITATION SERVICES (CC-05-447)
The Court made an award of $224.00 for medical services provided to a
patient at respondent's facility. The Court found that sufficient funds expired in the
appropriate fiscal year from which the invoice could have been paid.p.
71
NDC HEALTH CORPORATION V. DIVISION OF REHABILITATION
SERVICES (CC-06-049)
Claimant provided services to respondent and was not paid. However, the
Court found that there were sufficient funds expired in the appropriate fiscal year
from which the invoice could have been paid. The Court awarded claimant
$10,786.56p.
58
PUBLIC EMPLOYEES INSURANCE AGENCY V. DIVISION OF
CORRECTIONS (CC-06-116)
Claimant sought $207,273.95 for providing health insurance coverage for
employees at a facility of respondent. The agency failed to remit the premiums due
for the health insurance coverage within the appropriate fiscal years from 1997-
2005, therefore, claimant was not paid. Respondent admitted the validity of the
claim as well as the amount and requested that the Court consider the claim in
accordance with W.Va. Code º 14-2-18 in order that respondent be authorized to
make payment for the premiums in the current fiscal year of 2006. Award of
$207,273.95.p.
70
RYAN V. PUBLIC SERVICE COMMISSION (CC-05-314)
Claimant brought this claim for reimbursement of uniform cleaning fees.
Claimant was not paid because the documentation for those services was not
processed within the appropriate fiscal year. Respondent admitted the validity of
this claim and stated that there were sufficient funds expired in the appropriate
fiscal year from which the invoice could have been paid. Award of $35.88. p.
38
SGS NORTH AMERICA V. DIVISION OF LABOR (CC-05-395)
Claimant sought $18,040.00 for providing analysis services.
Documentation for the services was not processed for payment within the
appropriate fiscal year
; therefore, claimant was not paid. Respondent admitted the
validity of the claim as well as the amount, and stated that there were sufficient
funds expired in the appropriate fiscal year from which the invoice could have been
paid. Award of $18,040.00.p.
51
WEST VIRGINIA TRUCK & TRAILER, INC. V. DIVISION OF LABOR
(CC-05-268)
The Court made an award of $2,424.17 to claimant for providing
maintenance to a vehicle owned by a facility of respondent. Documentation for
those services was not processed for payment within the appropriate fiscal year;
thus claimant was not paid. Respondent admitted the validity and the amount of the
claim and stated that there were sufficient funds expired in the appropriate fiscal
year from which the invoice could have been paid. Award of $2,424.17.p.
17
VENDOR - Denied because of insufficient funds- see opinion: Airkem Sales and
Services, et al. vs. Dept. of Mental Health, 8 Ct. Cl. 180 (1971). Although the Court
denied the following claims, the Legislature considered them in overexpenditure
bills; declared the claims to be moral obligations of the State; and received funds to
pay the claims were provided to the Court.
AT&T V. DIVISION OF CORRECTIONS (CC-06-179)
Claimant sought payment in the amount of $152.50 for long distance
telephone services provided to respondent. Respondent admitted the validity of the
claim, but stated that there were insufficient funds in its appropriation for the fiscal
year in question from which to pay the invoice; therefore, no payment was made.
Claim disallowed.p.
77
CHARLESTON CARDIOLOGY GROUP V. DIVISION OF CORRECTIONS
(CC-06-121)
Claimant sought payment in the amount of $4,790.00 for medical services
rendered to inmates in the custody of respondent. Respondent admitted the validity
of the claim, but stated that there were insufficient funds in its appropriation for the
fiscal year in question in which to pay the claim. Claim disallowed.p.
69
CHARLESTON AREA MEDICAL CENTER INC. V. DIVISION OF
CORRECTIONS (CC-05-442)
The Court disallowed a claim in the amount of $324,395.70 for medical
services rendered to inmates in the custody of respondent since there were
insufficient funds expired in the appropriate fiscal year from which to pay the claim.
p. 53
CORRECTIONAL MEDICAL SERVICES INC. V. DIVISION OF
CORRECTIONS (CC-05-422)
Claimant sought $406,028.09 for medical services rendered to inmates in
the custody of respondent. Respondent admitted the validity of the claim, but stated that there were insufficient funds in its appropriation for the fiscal year from which
to pay the claim. Claim disallowed.p.
51
DAVIS MEMORIAL HOSPITAL V. DIVISION OF CORRECTIONS
(CC-05-379)
The Court disallowed a claim for medical services rendered to inmates in
the custody of respondent at Pruntytown Correctional Center. Respondent admitted
the validity of the claim, but stated that there were insufficient funds in its
appropriation for the fiscal year to pay the claim.p.
38
GRAFTON CITY HOSPITAL V. DIVISION OF CORRECTIONS (CC-05-443)
Claimant sought payment in the amount of $12,548.27 for medical services
rendered to inmates in the custody of respondent. Since there were insufficient
funds in respondent's appropriation for the fiscal year in which to pay the claim, the
Court denied the claim.p.
53
INTEGRATED HEALTHCARE PROVIDERS V. DIVISION OF CORRECTIONS
(CC-05-433)
Claimant sought payment in the amount of $10,028.39 for medical services
rendered to inmates in the custody of respondent. Respondent admitted the validity
of the claim, but stated that there were insufficient funds in its appropriation for the
fiscal year from which to pay the claim. Claim disallowed.p.
52
JOHNSON NICHOLS FUNERAL HOME V. DEPARTMENT OF HEALTH AND
HUMAN RESOURCES (CC-05-463)
Claimant sought payment in the amount of $1,250.00 for a burial
performed which was to be paid from respondent's Indigent Burial Fund.
Respondent stated that there were insufficient funds in its appropriation for the
fiscal year from which to pay the claim. Therefore, the claim was disallowed.
p.
59
MONONGALIA GENERAL HOSPITAL V. DIVISION OF CORRECTIONS
(CC-05-214)
Claimant sought payment in the amount of $17,967.00 for medical services
rendered to an inmate in the custody of respondent Huttonsville Correctional
Center, a facility of respondent. Respondent admitted the validity of the claim, and
further stated that there were insufficient funds in its appropriation for the fiscal
year to pay the claim. The Court held that an award cannot be recommended based
upon its decision in Airkem Sales and Service, et. al vs. Dept. of Mental Health, 8
Ct. Cl. 180 (1971). Claim disallowed. p.
14
TYGART VALLEY TOTAL CARE CLINIC V. DIVISION OF CORRECTIONS
(CC-05-181)
Claimant sought payment for medical services rendered to inmates in the
custody of respondent at Pruntytown Correctional Center, a facility of respondent.
Respondent admitted the validity of the claim, and further stated that there were
insufficient funds in its appropriation for the fiscal year to pay the claim. The Court
held that an award cannot be recommended based upon its decision in Airkem Sales and Service, et. al v. Dept. of Mental Health, 8 Ct. Cl. 180 (1971). Claim
disallowed.p.
16
ORDERS
Crime Victims Compensation
Fund
TABLE OF CASES REPORTED
Page
BROWNING, STEVE A. (CV-05-098)196
BYRD, DARRELL L. (CV-05-241)192
CANTRELL, JENIVEE D. (CV-05-613)191
CHRISTIAN, TOM
(CV-04-258)
174
COLE, ANDREW J.
(CV-05-84)
175
COULSON, TAMMY
(CV-03-312)
162
CRUICKSHANK, MARK KEVIN
(CV-03-618)
163
DAY, MONICA HOPE
(CV-02-441)
161
ELLIS, SHERLIE L.
(CV-06-048)197
FLYNN, ZENOBIA (CV-510)189
GARRETT, MAURYEL AUSHAWN
(CV-06-25)
185
GURNEE, JOSHUA M.
(CV-05-198)
178
HODGE, RONNIE LEE (CV-05-561)193
HOLLAND, AMY
(CV-04-400)
170
JACQUES, MARY
(CV-03-174)
160
JEWETT, PAMELA (CV-05-389)195
JONES, RUTH
(CV-03-526)
168
JONES, ALVA P. (CV-05-045) 177
KNAVEL, CHRISTINE K. (CV-03-331)202
KOVAR, MARY E.
(CV-04-109)
165, 167
LARGENT, RHONDA S. (CV-05-428)198
MEEKS, TRICIA ANN
(CV-03-573)
172
127
MENDOZA, LUIS (CV-05-243)201
MILLER, BEAU J.
(CV-05-180)
179
MOORE, FRANCES J.
(CV-05-04)
182
OOTEN, CONNIE MAHON
(CV-03-115)
186
PERUZZI, BRENT
(CV-04-562)
173
PUGH, MARVIN L.
(CV-04-506)
167
ROBINSON, JEREMY B. (CV-06-253-Z)188
SARVER, JOHN R. (CV-06-164)199, 203
SHORT, RAYMOND E. (CV-05-643)191
STEWART, RITA M.
(CV-04-614)
184
TAYLOR, CAROLYN S.
(CV-05-176) & MARK ALAN TAYLOR
(CV-05-192)
181
WHITE, THELMA H.
(CV-05-225)
183
Crime Victims Compensation Fund
Cases Submitted and Determined
in the Court of Claims
in the State of West Virginia
__________________
OPINION ISSUED JULY 15, 2005
Mary Jacques
(CV-03-174)
O R D E R
Claimant appeared in person.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Mary Jacques, for an award under the West
Virginia Crime Victims Compensation Act, was filed April 2, 2003. The report of
the Claim Investigator, filed September 30, 2003, recommended that no award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on November 15, 2003, upholding the Investigator's recommendation and
denying the claim, in response to which the claimant's request for hearing was filed
December 11, 2003. This matter came on for hearing June 10, 2005, the claimant
appearing pro se and the State of West Virginia by counsel, Ronald R. Brown,
Assistant Attorney General.
On February 9, 2003, the claimant
's 29-year-old son, Larry Gene Hose,
was the victim of criminal conduct outside a nightclub in Jefferson County. He was
shot and killed by the offender, Raymond Hoke. In its initial Order, this Court
denied the claim because of the victim's alleged contributory misconduct.
Testifying at the hearing of this matter was the victim's mother, claimant
Mary Jacques. Her remarks, however, were based on hearsay, as she was not
present on the evening in question. A witness to the events, Virginia Johnson, Larry
Hose's girlfriend, told the claimant that the offender pulled a knife and swung it at
Larry, who jumped back. The offender then brandished a gun, whereupon the Larry
raised his hands and said, "Call the cops." Then, the offender shot him.
It was the claimant's testimony that Larry had divorced his wife Melissa
because she had had an affair with the offender. She stated that on one occasion
approximately 1 ½ years prior to the incident in question, as she and Larry drove by
the offender's house, she saw the offender pull out a gun. The claimant knew of no
other confrontations between the two men until the shooting.
The claimant stated that she was present during part of the criminal
proceeding, and that the offender and his wife admitted that they were sitting in the
car when Larry came out of the bar. It was their contention that Larry came toward
the offender with a knife. The claimant maintained that her son was unarmed, and that the offender and Larry's wife ex-wife Melissa "set it up."
According to the claimant, her son and his three children lived with her at
the time he was shot. He was employed as a construction worker in Williamsport,
Maryland, helping to support them. The children currently reside with their mother,
and are receiving Social Security benefits.
On behalf of the State, Assistant Attorney General Ronald R. Brown stated
that he contacted Senior Trooper M.A. Cole, who had investigated the case.
Trooper Cole advised that the trial had ended in a hung jury, and that the matter
would be re-tried in the fall. After conferring with the trooper and reading his
report, and based upon various witness statements, Mr. Brown opined that the
victim Larry Hose did not have a knife when he emerged from the bar, and was
therefore an innocent victim of crime.
Based on the foregoing, it is this Court's finding that the victim's actions at
the time he was fatally wounded did not constitute contributory misconduct under
the law. Therefore, the previous decision is hereby overruled, and an award in the
maximum sum of $6,000.00 for funeral and burial expenses is granted pursuant to
the Claim Investigator's memorandum of July 1, 2005.
Additionally, should it later be determined that claimant Mary Jacques has
obtained custody of the victim's minor children, and is in fact incurring dependents'
economic loss on their behalf, this matter will be re-examined by the Court for
additional compensation.
__________________
OPINION ISSUED JULY 15, 2005
Monica Hope Day
(CV-02-441)
O R D E R
Claimant appeared in person.
Ronald Brown, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Monica Hope Day, for an award under the
West Virginia Crime Victims Compensation Act, was filed October 24, 2002. The
report of the Claim Investigator, filed April 17, 2003, recommended that an award
of $294.00 be granted, to which the claimant filed a response in disagreement.
Awards totaling $1,273.97 have been granted for payment of the unreimbursed
medical and related expense incurred on behalf of the claimant's daughter, a minor
who was the victim of criminally injurious conduct. The claimant requested a
hearing on the issue of her own lost wages. This matter came on for hearing June
10, 2005, the claimant appearing in person, and the State of West Virginia by
counsel, Ronald Brown, Assistant Attorney General.
On July 20, 2002, the 14-year-old daughter of the claimant was the victim
of criminally injurious conduct in Charles Town, Jefferson County. The alleged
offender, Donald Huffman, exposed himself to the claimant's daughter. As a result
of the incident, the claimant's daughter received counseling. The claimant was
unable to return to her job as she worked with the alleged offender. Ms. Day stated
that her employer was unwilling to move either the alleged offender or her to a different area. The claimant's medical and psychological problems, which were
related to the incident involved herein, and her work environment prevented her
from returning to work.
This Court's initial award was based on the fact that the claimant's minor
child was the victim of criminally injurious conduct. W.Va. Code §14-2A-3(g)
states: " 'Work loss' means loss of income from work that the injured person would
have performed if he or she had not been injured and expenses reasonably incurred
or to be incurred by him or her to obtain services in lieu of those he or she would
have performed for income, reduced by any income from substitute work actually
performed or to be performed by him or her, or by income he or she would have
earned in available appropriate substitute work that he or she was capable of
performing but unreasonably failed to undertake."
The Claim Investigator's original finding was that the claimant's daughter
was an innocent victim of a crime. The claimant then filed a response requesting
work loss. Thus it became the claimant's burden to prove by a preponderance of
the evidence that she had suffered work loss because of the incident giving rise to
the claim.
The claimant testified that she attempted to have herself or the alleged
offended moved by her employer to a different division of the office, but that the
employer refused. Ms. Day further stated that she filed a grievance with the U.S.
Equal Employment Opportunity Commission which was not resolved. In the light
of the evidence put forth by the claimant, the Court is of the opinion that the
claimant has met her burden of proof. The evidence adduced at the hearing of the
matter establishes that the claimant could not return to work due to the incident
involved herein. The Court is mindful that W. Va. Code §14-2A-3(g) defines work
loss as that which arises from "income from work that the injured person would
have performed if he or she had not been injured... ." However, due to the
extenuating circumstances surrounding this incident involving the claimant's 14-
year-old daughter, the claimant established that her work loss was related to the
criminally injurious conduct.
The Court is constrained by the evidence to find that the claimant did
suffer work loss as a result of this incident. Following the hearing, the Court
received documentation of the claimant's work loss, which exceeded $26,000.00.
As the statutory maximum in personal injury awards is $25,000.00, and as awards
of $1,273.97 have been granted to date, an award in the remaining sum of
$23,726.03 is hereby granted pursuant to the Claim Investigator's memorandum of
July 6, 2005, and as set out below.
Monica Hope Day
P.O. Box 96
Shenandoah Junction WV 25442
$23,726.03
__________________
OPINION ISSUED JULY 27, 2005
Tammy Coulson
(CV-03-312)
O R D E R
Dennis Coulson appeared in person and by counsel, Brenda Waugh, Attorney at
Law.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
FORDHAM, JUDGE:
An application of the claimant, Tammy Coulson, for an award under the
West Virginia Crime Victims Compensation Act, was filed June 24, 2003. The
report of the Claim Investigator, filed December 13, 2003, recommended that the
claim be held in abeyance until documentation is provided establishing that the
victim's counseling was related to the alleged criminally injurious conduct. An
Order was issued on December 13, 2004, denying the claim on the basis that no
criminally injurious conduct occurred, in response to which the claimant's request
for hearing was filed December 27, 2004. This matter came on for hearing June 10,
2005, the claimant's husband, Dennis Coulson, appearing by counsel Brenda
Waugh, and the State of West Virginia by counsel Ronald R. Brown, Assistant
Attorney General.
On several occasions during the months of January and February of 2001,
the claimant's 9-year-old son was the victim of alleged criminally injurious conduct
in Gerrardstown, Berkeley County. The claimant alleges that the child was
sexually abused at the residence of the offender, and the claimant incurred medical
and counseling expenses on his behalf, for which an award of compensation is
sought.
Submitted into evidence by the claimant was documentation by medical
professionals that criminal conduct did in fact occur, resulting in unreimbursed
medical, counseling, and mileage expenses. Counsel for the State stipulated that
$1,436.46 is due and owing, and that an award should be made.
Based on the foregoing, the Court directed the Claim Investigator to verify
the economic losses sustained. By memorandum dated July 22, 2005, the Claim
Investigator reported total unreimbursed allowable expenses of $3,666.43. An
award in that sum is hereby granted. Should the claimant later submit
documentation of any additional unreimbursed allowable expenses relating to these
incidents, they may be reviewed by the Court at that time.
__________________
OPINION ISSUED JULY 15, 2005
Mark Kevin Cruickshank
(CV-03-618)
O R D E R
Claimant appeared in person and by counsel, Eric J. Holmes, Attorney at Law.
Benjamin F. Yancey III, Assistant Attorney General, for the State of West Virginia.
SAYRE, JUDGE:
The claimant, Mark Kevin Cruickshank, filed his application for an award
under the West Virginia Crime Victims Compensation Act on December 9, 2003.
On February 3, 2004, the Claim Investigator filed his report which recommended
that an award of $25,000.00 be granted. The claimant filed a response in agreement with that recommendation. However, on July 21, 2004, an Order was issued by the
Court, reversing the Investigator's recommendation and denying the claim. On July
30, 2004, the claimant filed his request for hearing. Accordingly, this matter came
on for hearing before this Court on February 16, 2005, the claimant appearing in
person and by counsel, Eric J. Holmes, and the State of West Virginia appearing by
counsel, Benjamin F. Yancey III, Assistant Attorney General.
The undisputed facts are as follows: On October 9, 1999, the 31-year-old
claimant was injured in the line of duty as a West Virginia State Police Trooper in
Elkview, Kanawha County. While assisting in the dismantling of a
methamphetamine drug lab, the claimant was exposed to toxic fumes, which
resulted in damage to his lungs.
This Court's initial denial of an award was based upon three findings: (1)
The claimant's application for compensation was filed beyond the two-year statute
of limitations set forth in W.Va. Code §14-2A-14(a), (2) There was no "criminally
injurious conduct " as defined by W.Va. Code §14-2A-3(c) because the claimant's
own actions resulted in his injuries, and (3) The claimant has the benefit of a
collateral source in the form of disability benefits under W.Va. Code §15-2-29, and
therefore sustained no out-of-pocket economic loss.
According to a brief filed by counsel for the claimant subsequent to the
hearing, the statute of limitations is tolled until a claimant knows or has reason to
know not only of the existence of his injury but also its relation to criminal conduct.
When the claimant herein began experiencing lung problems, he sought the
advice of physicians in the Charleston area, but they were unable to diagnose the
problem. The claimant was then referred to specialists at Duke University in
December 2002, who determined that the injury to his lungs was a direct result of
the October 1999 methamphetamine lab exposure.
This was the claimant's first specific notification that his physical
condition was related to the methamphetamine lab exposure. The claimant's
application for crime victim compensation was filed one year later, on December 9,
2003, which is well within the two-year limitation period. The Court therefore finds
that the claimant has met his burden of proof that the claim was timely filed, and is
therefore subject to the Court's jurisdiction.
The second issue concerns the definition of "criminally injurious conduct."
According to W.Va. Code §14-2A-3(c), such conduct "by its nature poses a
substantial threat of personal injury or death, and is punishable by fine or
imprisonment or death... ." Clearly, the manufacture of a highly volatile controlled
substance poses a threat of injury or death, and is against the law. However, this
Court's initial ruling found that the claimant's own actions, in continuing to
dismantle the lab even though his oxygen tank was going dry, were the actual cause
of his injuries. The Court reasoned that by that time the alleged criminal was in
police custody.
The claimant testified at the hearing of this matter that at one point during
the dismantling operation, he exited the residence and informed his superior that his
oxygen tank was going dry. The superior officer nevertheless instructed the
claimant to go back inside and finish dismantling the lab, which he did.
Under cross-examination, the claimant stated that he had undergone
training by the Drug Enforcement Administration (DEA) for the dismantling of drug
labs, including training in the use of oxygen. The claimant also revealed that this
was the first lab he had ever dismantled.
Based upon the claimant's testimony, the Court finds that since the
claimant was cognizant of the hazards of the dismantling operation as they were
understood on October 9, 1999, but was directed by his superiors to continue,
particularly in light of what facts have been learned about exposure to this substance
since 1999
, the claimant should not be held accountable for continuing to work
without adequate protection. Therefore, the Court determines that "criminally
injurious conduct" has been established within the statutory definition.
Having found the claimant to be an innocent victim of crime whose claim
was timely filed, we turn to the issue of damages. The Court takes judicial notice of
the fact that the Crime Victims Compensation Act is silent as to whether members
of the West Virginia State Police are or are not excluded from coverage by the Act.
Since the statute is silent, the Court will consider the claimant as a member of the
class of ordinary citizens covered by the Act.
W.Va. Code §15-2-29 sets forth the benefits for disability of the West
Virginia State Police. According to its provisions, any member "who has been or
shall become physically or mentally permanently disabled by injury, illness or
disease resulting from any occupational risk or hazard inherent in or peculiar to the
services required of members of the division and incurred pursuant to or while such
member was or shall be engaged in the performance of his or her duties as a
member of the division shall...be retired from active service by the retirement
board."
In the instant case, the claimant's effective date of retirement pursuant to
W.Va. Code
§15-2-29
was July 11, 2003, at which time he began receiving
$3,939.17 per month in retirement benefits. Prior to his injury, he averaged a
monthly income of $4,277.96, representing a difference of $338.79 per month. His
lost income from the twenty-five-month period from the effective date of his
retirement (July 11, 2003) to the present (August 11, 2005) totals $8,469.75. In
addition, the claimant incurred unreimbursed medical and pharmaceutical expenses
of $1,498.59 as of the date of the Claim Investigator's original recommendation
(February 3, 2004), for a total economic loss of $9,968.34.
The Court is constrained by the evidence to reverse its previous ruling and
grant the sum of $9,968.34, representing the claimant's unreimbursed work loss and
documented medical and pharmaceutical expenses. Should the claimant later
submit evidence of additional unreimbursed allowable expenses relating to this
incident, they will be reviewed by the Court at that time. In addition, should it later
be determined that the claimant's injuries are so severe as to leave him with a
disability as defined in Section 223 of the Social Security Act (42 U.S.C. 423), the
Court may award an additional amount, not to exceed $100,000.00, for "special
needs attributable to the injury" pursuant to W.Va. Code §14-2A-14(g)(2).
Mark Kevin Cruickshank
HC 83, Box 89D
Sissonville WV 25320...............................................$9,968.34
__________________
OPINION ISSUED OCTOBER 14, 2005
Mary E. Kovar
(CV-04-109)
O R D E R
Claimant appeared in person.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Mary E. Kovar, for an award under the
West Virginia Crime Victims Compensation Act, was filed March 2, 2004. The
report of the Claim Investigator, filed August 24, 2004, recommended that no award
be granted, to which the claimant filed a response in disagreement. An Order was
issued on November 9, 2004, upholding the Investigator's recommendation and
denying the claim, in response to which the claimant's request for hearing was filed
December 1, 2004. This matter came on for hearing July 22, 2005, the claimant
appearing in person, and the State of West Virginia by counsel, Ronald R. Brown,
Assistant Attorney General.
In the early morning hours of February 15, 2004, the 29-year-old claimant
was the victim of criminally injurious conduct at a bar in Clarksburg, Harrison
County. The claimant was trying to stop an argument between a couple when she
was assaulted by Marcus Lewis and Vernon Payne.
As a result of the attack, the claimant suffered a broken jaw and other
facial injuries.
This Court's initial denial of an award was based on the Claim
Investigator's finding that the claimant was not an innocent victim of crime. W.Va.
Code §14-2A-3(l) states: " 'Contributory misconduct' means any conduct of the
claimant ... that is unlawful or intentionally tortious and that, without regard to the
conduct's proximity in time or space to the criminally injurious conduct has causal
relationship to the criminally injurious conduct that is the basis of the claim and
shall also include the voluntary intoxication of the claimant, either by the
consumption of alcohol or the use of any controlled substance when the intoxication
has a causal connection or relationship to the injury sustained."
The claimant testified at the hearing of this matter that on the evening in
question, she drove to a bar named The Matador with a friend, Jessica Barker. She
stated that she had not had anything to drink at all. Ms. Kovar was dancing while
her friend was talking with Vernon Payne. Mr. Payne shoved the claimant's friend,
at which time Ms. Kovar stepped in between the two. She testified that she then
turned towards Ms. Barker when Marcus Lewis struck her in the back of the head.
Ms. Kovar stated that she did not throw any punches and that the first punch was
thrown by Mr. Lewis. Mr. Payne then hit her in the side of the face, knocking her
over tables, against a wall, and onto the floor. Ms. Kovar stated that she was being
hit while on the ground. Other people in the bar helped get the two men away from
her. At this point the police arrived at the scene. Ms. Kovar stated that she
eventually drove herself to the hospital. She was in the hospital for four days and
had to have her mouth wired shut from February 15, 2004, to May 5, 2004.
The Claim Investigator's original finding was that the claimant was guilty
of contributory misconduct within the meaning of the statute. The original Order
upheld the Claim Investigator's finding, disallowing the claim. Thus it became the
claimant's burden to prove by a preponderance of the evidence that she was not
guilty of contributory misconduct.
The claimant testified that she had not been
drinking while at the bar. Ms. Kovar further stated that she had not thrown any
punches prior to being struck and that she was only trying to separate her friend from Mr. Payne. In light of the evidence put forth by the claimant, the Court is of
the opinion that she has met her burden of proof. The evidence adduced at the
hearing of the matter establishes that the claimant had not been drinking and was in
no way guilty of contributory misconduct.
The Court is constrained by the evidence to reverse its previous ruling and
find that the claimant was not guilty of contributory misconduct.
Based on the foregoing, the Claim Investigator is hereby directed to
prepare an economic loss analysis to ascertain the claimant's unreimbursed
allowable expenses relating to the incident for further review by this Court.
__________________
SUBSEQUENT OPINION ISSUED OCTOBER 14, 2005
Mary E. Kovar
(CV-04-109)
O R D E R
By Order issued October 14, 2005, the Claim Investigator was directed to
prepare an economic loss analysis of this claimant's unreimbursed allowable
expenses.
By memorandum dated September 30, 2005, the Investigator found those
losses to total $419.58 in prescription expenses. Her hospital bill was paid through
Medicaid, and she sustained no work loss. An award of $419.58 is therefore
granted as set out below.
Should the claimant incur additional unreimbursed allowable expenses
relating to this incident, they may be submitted to the Court for consideration at that
time.
Mary E. Kovar
Rt. 2, Box 280
Shinnston WV 26341.................................................$419.58
__________________
OPINION ISSUED OCTOBER 14, 2005
Marvin L. Pugh
(CV-04-506)
O R D E R
Claimant appeared in person.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Marvin L. Pugh, for an award under the
West Virginia Crime Victims Compensation Act, was filed September 27, 2004.
The report of the Claim Investigator, filed March 14, 2005, recommended that no
award be granted, to which the claimant filed a response in disagreement. An Order was issued on April 21, 2005, upholding the Investigator's recommendation and
denying the claim, in response to which the claimant's request for hearing was filed
May 13, 2005. This matter came on for hearing July 22, 2005, the claimant
appearing in person, and the State of West Virginia by counsel, Ronald R. Brown,
Assistant Attorney General.
On April 3, 2004, the 63-year-old claimant was the victim of criminally
injurious conduct in Fellowsville, Preston County. The claimant was exiting a
vehicle when Douglas Bloomer, the driver of the vehicle, ran over him.
As a result of the attack, the claimant suffered a broken leg and facial
lacerations.
This Court's initial denial of an award was based on the Claim
Investigator's finding that the claimant was not an innocent victim of crime. W.Va.
Code §14-2A-3(l) states: " 'Contributory misconduct' means any conduct of the
claimant ... that is unlawful or intentionally tortious and that, without regard to the
conduct's proximity in time or space to the criminally injurious conduct has causal
relationship to the criminally injurious conduct that is the basis of the claim and
shall also include the voluntary intoxication of the claimant, either by the
consumption of alcohol or the use of any controlled substance when the intoxication
has a causal connection or relationship to the injury sustained."
The claimant testified at the hearing of this matter that on the day in
question, the alleged offender Douglas Bloomer picked him up between 9:30 a.m.
and 10:00 a.m. He stated that they were both drinking. Later, Mr. Bloomer was
dropping off the claimant at Mr. Bloomer's mother-in-law's house. As Mr. Pugh
exited the vehicle, Mr. Bloomer put the vehicle in reverse, striking the claimant
with the vehicle's door. The claimant was knocked to the ground, suffering facial
lacerations. He was then run over by the vehicle, breaking one of his legs. Mr.
Bloomer then fled the scene, but was later arrested. Mr. Pugh was taken to the
hospital where he was treated for his injuries. The claimant's blood alcohol content
was .31%.
The Claim Investigator's original finding was that the claimant was guilty
of contributory misconduct within the meaning of the statute. The original Order
upheld the Claim Investigator's finding, disallowing the claim. Thus it became the
claimant's burden to prove by a preponderance of the evidence that he was not
guilty of contributory misconduct.
The Court is of the opinion that he did not meet
this burden. There was evidence produced at hearing that the claimant was drinking
and had been doing so for two days. Since there was no evidence presented that the
claimant was not guilty of contributory misconduct, the Court must deny this claim.
The Court is constrained by the evidence to stand by its previous ruling;
therefore, this claim must be, and is hereby, denied.
__________________
OPINION ISSUED OCTOBER 14, 2005
Ruth Jones
(CV-03-526)
O R D E R
Claimant appeared in person and by counsel, David H. Webb, attorney at law.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Ruth Jones, for an award under the West
Virginia Crime Victims Compensation Act, was filed October 10, 2003. The report
of the Claim Investigator, filed March 8, 2004, recommended that no award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on May 20, 2004, upholding the Investigator's recommendation and denying
the claim, in response to which the claimant's request for hearing was filed June 28,
2004. This matter came on for hearing July 22, 2005, attorney David H. Webb
representing the claimant, and Assistant Attorney General Ronald R. Brown for the
State of West Virginia.
On January 17, 2003, the claimant's 15-year-old daughter, Ashley Nicole
Willis, was tragically killed in an all-terrain vehicle accident on Route 46 in Mineral
County. The victim was riding as a passenger of driver Logan Michael Douglass,
who was intoxicated, lost control of the vehicle, and crashed. Mr. Douglass later
was convicted of driving under the influence of alcohol causing death, and was
sentenced to a prison term of 1-10 years.
Testifying at the hearing of this matter was Piedmont Police Officer
Michael Todd Beeman. Officer Beeman was called to the scene of the accident that
night. It was determined that the driver of the four-wheeler, Logan Douglass, had
been traveling at a high rate of speed when the right tires left the berm of the road,
causing him to lose control and strike a large rock. Ashley Willis was thrown from
the vehicle, which landed on top of Logan Douglass. Officer Beeman further stated
that the four-wheeler had been stolen earlier that evening, but that Ashley Willis
was not present at that time. The toxicology report on Ashley revealed a blood
alcohol level of .05 per cent.
Upon cross-examination, Officer Beeman indicated that neither Ashley
Willis nor Logan Douglass was wearing head protection. The investigation also
showed that at some point the vehicle had stalled, and the victim had an opportunity
to walk away, but voluntarily got back on.
Marc Coleman, a firefighter and emergency medical technician, testified
that the four-wheeler had stalled in front of his house. He went onto his porch to
investigate, and observed a male and a female on the stopped vehicle. They got it
started again, and three or four minutes later, Mr. Coleman was paged to the scene
of a motorcycle accident. Upon arrival, he saw Ashley Willis lying in a ditch on the
right side of the road, and Logan Douglass in the center of the road. Mr. Coleman
testified that he could smell alcohol on Mr. Douglass.
Cody Dennis, a resident of Keyser, West Virginia, testified that he driving
into the town of Piedmont at around 11:00 p.m. on the evening in question. As he
was coming down a steep hill in the right lane, he observed the four-wheeler
traveling toward him in the right lane, "fishtailing," and just before it got to him it
swerved into the other lane. Mr. Dennis stated that the driver was male, and that his
female passenger was holding on by gripping the rack behind her.
Claimant Ruth Jones, mother of the victim, was the last to testify. Ms.
Jones indicated that there was no insurance available to pay the expenses in her
daughter's claim. She also stated that she did not know how her daughter got the
alcohol she consumed that night.
This claim was initially denied on the basis of contributory misconduct,
defined in W.Va. Code §14-2A-3(l) as any conduct of the victim that is "unlawful or intentionally tortious and that, without regard to the conduct's proximity in time
or space to the criminally injurious conduct has causal relationship to the criminally
injurious conduct that is the basis of the claim... ." In its prior ruling, the Court
found that the victim had been a willing passenger on a stolen all-terrain vehicle,
and that she engaged in underage drinking prior to the accident. Those facts are not
in dispute. The issue for the Court now is not whether contributory misconduct was
present, but rather, did that conduct have a "causal connection" to the subsequent
incident giving rise to the claim.
The record shows that the victim's blood alcohol level was .05 per cent,
which is in violation of W.Va. Code §11-16-19: "Any person under the age of
twenty-one years who purchases, consumes, sells, possesses, or serves
nonintoxicating beer is guilty of a misdemeanor... ." The victim, at age 15, had
alcohol in her system. It is the claimant's position that this conduct, albeit unlawful,
was not causally connected to the criminal incident that followed. The Court is of
the opinion that the victim's actions were in fact causally related to this tragic
accident. It is the finding of this Court that although the victim was not legally
intoxicated, the blood alcohol level in her system more than likely had a negative
impact upon her judgment in accepting a ride on a motor vehicle whose operator
was indeed clearly impaired.
According to W.Va. Code §14-2A-14(f)
, the Court may reduce or deny a
claim for an award of compensation wherein contributory misconduct has been
found. Unreimbursed allowable expenses of $6,284.00 in funeral costs were
incurred by the claimant. W.Va. Code §14-2A-3(f)(2) permits an award "not in
excess of six thousand dollars for expenses in any way related to funeral, cremation
and burial."
Based on the foregoing facts, the Court hereby imposes a 25% reduction in
the award to the claimant as a result of the established contributory misconduct, and
grants the sum of $4,500.00 as set out below.
Ruth Jones
304 Ross St.
Westernport MD 21562..............................................$4,500.00
__________________
OPINION ISSUED NOVEMBER 10, 2005
Amy Holland
(CV-04-400)
O R D E R
Claimant appeared in person and by counsel, Patricia A. Kurelac and Peter P. Kurelac III.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia
.
GRITT, JUDGE:
An application of the claimant, Amy Holland, on behalf of her daughter
Alexis Coffield, a minor, for an award under the West Virginia Crime Victims
Compensation Act, was filed August 9, 2004. The report of the Claim Investigator,
filed November 30, 2004, recommended that no award be granted, to which the claimant filed a response in disagreement. An Order was issued on January 27,
2005, upholding the Investigator's recommendation and denying the claim, in
response to which the claimant's request for hearing was filed March 2, 2005. This
matter came on for hearing September 15, 2005, the claimant appearing in person
and by counsel, Patricia A. Kurelac and Peter P. Kurelac III, and the State of West
Virginia by counsel, Ronald R. Brown, Assistant Attorney General.
In the early morning hours of January 30, 2003, Ryan Coffield, the 19-
year-old boyfriend of the claimant, was the victim of criminally injurious conduct in
Triadelphia, Ohio County. Mr. Coffield was involved in an automobile accident in
which he suffered fatal injuries.
This Court's initial denial of an award was based on the Claim
Investigator's finding that the claimant was not an innocent victim of crime. W.Va.
Code §14-2A-3(l) states: " 'Contributory misconduct' means any conduct of the
claimant ... that is unlawful or intentionally tortious and that, without regard to the
conduct's proximity in time or space to the criminally injurious conduct has causal
relationship to the criminally injurious conduct that is the basis of the claim and
shall also include the voluntary intoxication of the claimant, either by the
consumption of alcohol or the use of any controlled substance when the intoxication
has a causal connection or relationship to the injury sustained."
The claimant testified at the hearing of this matter that on the evening in
question, she was at home watching television while Mr. Coffield was sleeping.
She stated that James Chad Fike came over at approximately 12:00 a.m. asking to
see Mr. Coffield. Ms. Holland testified that at that time Mr. Fike did not appear to
be intoxicated. She woke Mr. Coffield, and he and Mr. Fike left to go to Mr. Fike's
apartment. At about 12:30 a.m., Mr. Coffield came back to their apartment and
asked if he could borrow Ms. Holland's vehicle so that he and Mr. Fike could drive
to purchase some beer. Mr. Coffield brought her vehicle back around 1:00 a.m. At
approximately 3:00 a.m., Mr. Fike's girlfriend woke Ms. Holland, informing her
that Mr. Fike and Mr. Coffield had been in an accident. Mr. Coffield passed away
on February 18, 2003, as a result of severe head trauma suffered in the accident.
Mr. Fike was later arrested and charged for DUI causing death. He was
found guilty and was sentenced to not less than one year nor more than ten years in
prison.
The Claim Investigator's original finding was that the claimant was guilty
of contributory misconduct within the meaning of the statute. The original Order
upheld the Claim Investigator's finding, disallowing the claim. Thus it became the
claimant's burden to prove by a preponderance of the evidence that Mr. Coffield
was not guilty of contributory misconduct.
The claimant testified that Mr. Fike did
not appear intoxicated at 12:00 a.m. when she saw him. Ms. Holland further stated
that Mr. Coffield did not appear intoxicated when he came to ask to borrow her
vehicle or when he returned it. In light of the evidence put forth by the claimant,
the Court is of the opinion that she has met her burden of proof. The evidence
adduced at the hearing of the matter establishes that the claimant was in no way
guilty of contributory misconduct.
The Court is constrained by the evidence to reverse its previous ruling and
find that the claimant was not guilty of contributory misconduct. Therefore, an
award shall be granted.
Unreimbursed medical expenses incurred by the victim prior to his death
are not the responsibility of the claimant, but are to be charged to the victim's
estate, if any. The funeral and burial expenses incurred by the victim's mother, Rhonda Coffield, totaled $12,698.84. The Court therefore grants an award of
$6,000.00 to Ms. Coffield, which sum represents the maximum award for funeral
and burial expenses permitted by W.Va. Code §14-2A-3(f)(2). The issue of
dependent's economic loss shall remain open until documentation is received by the
Court regarding the economic loss, if any, sustained by the claimant's minor child.
Rhonda Coffield
RD 1, Box 708
Triadelphia, WV 26059.........................................$6,000.00
__________________
OPINION ISSUED DECEMBER 9, 2005
Tricia Ann Meeks
(CV-03-573)
O R D E R
Edward ReBrook III, attorney at law, appeared for the claimant.
Benjamin F. Yancey III, Assistant Attorney General, for the State of West Virginia.
FORDHAM, JUDGE:
An application of the claimant, Tricia Ann Meeks, for an award under the
West Virginia Crime Victims Compensation Act, was filed November 6, 2003. The
report of the Claim Investigator, filed June 11, 2004, recommended that the claim
be held in abeyance until criminally injurious conduct may be established, to which
the claimant filed no response. An Order was issued on January 27, 2005, denying
the claim, in response to which the claimant's request for hearing was filed
February 7, 2005. This matter came on for hearing June 23, 2005, the claimant
appearing by counsel, Edward ReBrook III, and the State of West Virginia by
counsel, Benjamin F. Yancey III, Assistant Attorney General.
On June 3, 2002, the 24-year-old claimant was severely injured in a
motorcycle accident in South Charleston, Kanawha County. The claimant was a
passenger on a motorcyle being driven by Michael Hensen, who failed to negotiate
a curve. He lost control, left the roadway, drove through a parking lot, struck a
curb, went into a yard, and struck a tree. The claimant and the driver were thrown
against a residence. As a result of the incident, the claimant was rendered
paraplegic. The driver suffered a broken neck and is also paralyzed.
This Court's initial denial of an award was based upon the fact that
criminally injurious conduct was never established. No charges were ever brought
against the driver.
At the scheduled hearing of this matter, counsel for the claimant and
counsel for the Fund indicated to the Court that they had reached an agreement to
settle the claim, pending receipt of an economic loss analysis by the Claim
Investigator.
By memorandum dated December 1, 2005, the Investigator calculated the
claimant's unreimbursed work loss through December 2005 to be $11,940.48.
There being no objection thereto on the part of counsel for the Fund, an award in
that sum is hereby granted as set out below. The Court further finds that the
claimant has suffered a disability qualifying her for an award beyond the $25,000.00 statutory maximum for "special needs attributable to the injury" pursuant to W.Va.
Code §14-2A-14(g)(2).
Should the claimant later submit documentation of any additional
unreimbursed allowable expenses relating to this incident, they will be reviewed by
the Court at that time.
Tricia Ann Meeks
201 Loretta Lane
So. Charleston WV 25309................................................$11,940.48
__________________
OPINION ISSUED DECEMBER 16, 2005
Brent Peruzzi
(CV-04-562)
O R D E R
Timothy N. Logan, Attorney at Law, for the claimant.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Brent Peruzzi, for an award under the West
Virginia Crime Victims Compensation Act, was filed October 27, 2004. The report
of the Claim Investigator, filed April 29, 2005, recommended that no award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on July 8, 2005, upholding the Investigator's recommendation and denying
the claim, in response to which the claimant's request for hearing was filed July 14,
2005. This matter came on for hearing October 6, 2005, the claimant appearing in
person and by counsel, Timothy N. Logan, and the State of West Virginia by
counsel, Ronald R. Brown, Assistant Attorney General.
On December 31, 2003, the 22-year-old claimant was the victim of
criminally injurious conduct in Star City, Monongalia County. The claimant was
outside a bar called Crockett's Lounge when the offender, Michael Downey,
stabbed him in the left hand.
This Court's initial denial of an award was based on the Claim
Investigator's finding that the claimant was not an innocent victim of crime. W.Va.
Code §14-2A-3(l) states: " 'Contributory misconduct' means any conduct of the
claimant ... that is unlawful or intentionally tortious and that, without regard to the
conduct's proximity in time or space to the criminally injurious conduct has causal
relationship to the criminally injurious conduct that is the basis of the claim and
shall also include the voluntary intoxication of the claimant, either by the
consumption of alcohol or the use of any controlled substance when the intoxication
has a causal connection or relationship to the injury sustained."
The claimant testified at the hearing of this matter that on the day in
question, he had gone to Crockett's Lounge with some friends. They were waiting
to play a game of pool when he was approached by Mr. Downey. Mr. Downey told
the claimant that he could not play pool at the table and then began to scream at
him. In response, the claimant shoved Mr. Downey. The claimant and Mr.
Downey were then asked to leave the bar. The claimant stated that he was waiting outside the bar for his friends to come out when Mr. Downey approached him
again, yelling at him. The claimant walked across the street, but Mr. Downey
followed him. Mr. Downey pushed the claimant, who then punched Mr. Downey,
knocking him to the ground. The claimant saw Mr. Downey reach into his pocket
and pull out a knife. Mr. Downey stabbed at the claimant with the knife, which the
claimant grabbed with his left hand. The claimant yelled to his friends that he had
been stabbed. His friends proceeded to break up the fight, and the police arrived
shortly thereafter. The claimant testified that he had had a couple of beers while he
was in the bar.
The Claim Investigator's original finding was that the claimant was guilty
of contributory misconduct within the meaning of the statute. The original Order
upheld the Claim Investigator's finding, disallowing the claim. Thus it became the
claimant's burden to prove by a preponderance of the evidence that he was not
guilty of contributory misconduct.
The Court is of the opinion that he did not meet
this burden. There was evidence that the claimant first shoved the offender while
inside the bar and that he had been drinking. Since there was no evidence presented
that the claimant was not guilty of contributory misconduct, the Court must deny
this claim.
The Court is constrained by the evidence to stand by its previous ruling;
therefore, this claim must be, and is hereby, denied.
__________________
OPINION ISSUED JANUARY 26, 2006
Tom Christian
(CV-04-258)
O R D E R
Claimant appeared in person.
Benjamin F. Yancey III, Assistant Attorney General, for the State of West Virginia.
FORDHAM, JUDGE:
An application of the claimant, Tom Christian, for an award under the
West Virginia Crime Victims Compensation Act, was filed May 21, 2004. The
report of the Claim Investigator, filed September 23, 2004, recommended that no
award be granted, to which the claimant filed a response in disagreement. An Order
was issued on December 2, 2004, upholding the Investigator's recommendation and
denying the claim, in response to which the claimant's request for hearing was filed
February 25, 2005. This matter came on for hearing June 23, 2005, the claimant
appearing pro se and the State of West Virginia by counsel, Benjamin F. Yancey
III, Assistant Attorney General.
On February 26, 2004, the claimant's 62-year-old father, Harry Christian,
was the victim of criminally injurious conduct in Charleston, Kanawha County.
He had apparently intervened in an argument, and was fatally shot. This Court's
initial denial of an award was based upon the Claim Investigator's finding that the
facts surrounding the incident were unclear.
The claimant stated at the hearing of this matter that, according to witnesses who testified at the trial, Robert Eric Haynes, the offender, was arguing
with his girlfriend at the residence of the claimant's father. The argument had
cooled and the offender was walking away when he suddenly turned, pulled out a
gun, and shot the claimant's father. The offender later pleaded guilty to first-degree
murder.
The claimant further testified that he needs assistance with the funeral bill
of $2,450.00. The claimant stated that he made a payment of $1,250.00 to the
funeral home, but submitted no documentation of that payment. Submitted into
evidence was an account summary from Bartlette-Burdette-Cox Funeral Home,
which revealed an outstanding balance of $1,250.00 plus interest of $56.25, for a
total of $1,306.25.
In response to a question regarding the autopsy report, which showed
cocaine present in his father's system, the claimant stated that "it was from the
previous night," and that he had been at his father's residence the day of the
shooting. The claimant stated that he left approximately one half hour before the
offender arrived. The claimant also revealed that his father was a Medicaid
recipient, and that he was on oxygen and would not have had the strength to fight
the offender.
At the direction of the Court, the claim was held open pending receipt of
the transcript of the plea hearing in Kanawha County Circuit Court before Judge
Tod J. Kaufman, which document was received December 14, 2005.
According to the plea agreement, the factual basis for the plea was that on
February 26, 2004, the offender committed murder when he intentionally took a
handgun and fired two shots into an unarmed victim, Tom Christian, one in the
head, and one in the chest. The offender was in no way justified in shooting Mr.
Christian.
Based upon the foregoing, the Court finds that the claimant's father was in
fact an innocent victim of crime, and that an award of compensation is warranted.
According to information obtained from the funeral home, the original bill
of $2,450.00 was offset by a payment of $1,250.00 from the West Virginia Division
of Health and Human Resources, leaving a balance of $1,200.00. Therefore, an
award in that sum is hereby granted as set out below. Should the claimant later
submit documentation of any additional unreimbursed allowable expenses relating
to this incident, they will be reviewed by the Court at that time.
Bartlette Burdette Cox Funeral Home
513 Tennessee Ave.
Charleston WV 25302
FEIN: 55-0568150
FIMS: 103936.................................................................$1,200.00
__________________
OPINION ISSUED APRIL 28, 2006
Andrew J. Cole
(CV-05-84)
O R D E R
Claimant appeared in person.
Benjamin F. Yancey III, Assistant Attorney General, for the State of West Virginia.
SAYRE, JUDGE:
An application of the claimant, Andrew J. Cole, for an award under the
West Virginia Crime Victims Compensation Act, was filed February 10, 2005. The
report of the Claim Investigator, filed July 25, 2005, recommended that no award be
granted, to which the claimant filed no response. An Order was issued on
September 26, 2005, upholding the Investigator's recommendation and denying the
claim, in response to which the claimant's request for hearing was filed October 3,
2005. This matter came on for hearing March 29, 2006, claimant appearing pro se
and the State of West Virginia by counsel, Benjamin F. Yancey III, Assistant
Attorney General.
On November 6, 2004, the 42-year-old claimant was the victim of
criminally injurious conduct in Huntington, Cabell County. The claimant was
assaulted by the offender, Mel Davis.
The claimant, who is hearing-impaired, testified with the assistance of
Natalie Bridges. The claimant stated that on the day in question, he observed a man
about to strike his neighbor, a handicapped woman. The claimant stepped onto his
porch and said, "Hey, don't you hit that woman." The offender was happening by,
heard the claimant, and asked to whom he was speaking. The claimant replied,
"Your stepfather." The offender advised the claimant to mind his own business.
An hour later, the claimant came out of his residence to go to the store.
That is when he was attacked by Mr. Davis, who knocked him to the ground and
beat him, breaking his hearing aid.
The claimant testified that he filed charges against Mr. Davis, who was
sentenced to 48 hours in jail.
The initial denial of an award in this claim was based on the finding that
the incident was not reported to law enforcement officials within 72 hours as
mandated by W.Va. Code §14-2A-14(b), nor was there "good cause" for such
failure to report.
The claimant explained that since he has difficulty hearing, he asked his
friends to call the police for him. The record indicates that the incident was
reported six days later. The claimant stated, "That I can't explain... I did file." The
claimant testified that he was told, "It's under investigation."
In the present case, the Claim Investigator's finding was that the claimant
did not report the crime to the police within seventy-two hours after the crime
occurred. Therefore, it is the claimant's burden to prove by a preponderance of the
evidence that "good cause existed for the failure to report the conduct within the
seventy-two hour period." The Court is of the opinion that the claimant has met this
burden.
The Court is constrained by the evidence to grant an award for the
claimant's damaged hearing aid in the sum of $1,350.00 as documented. Should it
later be determined that an additional expense related to the cost of the device is
warranted, a supplemental award may be granted by the Court at that time.
Beltone Hearing Aid Centers
601 Sixth Ave.
Huntington WV 25718
FEIN: 55-0483590............................................................$1,350.00
__________________
OPINION ISSUED MAY 4 , 2006
Alva P. Jones
(CV-05-045)
O R D E R
Claimant appeared in person.
Benjamin F. Yancey, III, Assistant Attorney General, for the State of West Virginia.
SAYRE, JUDGE:
An application of the claimant, Alva P. Jones, for an award under the West
Virginia Crime Victims Compensation Act, was filed January 25, 2005. The report
of the Claim Investigator, filed July 22, 2005, recommended that no award be
granted, to which the claimant filed a response in disagreement. An Order was
issued on September 26, 2005, upholding the Investigator's recommendation and
denying the claim, in response to which the claimant's request for hearing was filed
October 27, 2005. This matter came on for hearing March 29, 2006, the claimant
appearing in person, and Assistant Attorney General Benjamin F. Yancey, III, for
the State of West Virginia.
On June 30, 2004, the 25-year-old claimant was the victim of criminally
injurious conduct in Charleston, Kanawha County. The claimant was sitting outside
his mother's home when the offender, Nina Clayter, struck him in the face and
ankle, breaking the ankle in two places.
This Court's initial denial of an award was based on the Claim
Investigator's finding that the claimant was not an innocent victim of crime. W. Va.
Code §14-2A-3(1) states: " 'Contributory misconduct' means any conduct of the
claimant ... that is unlawful or intentionally tortious and that, without regard to the
conduct's proximity in time or space to the criminally injurious conduct has causal
relationship to the criminally injurious conduct that is the basis of the claim ..."
The claimant testified at the hearing of this matter that on the day of the
incident he had been outside his mother's home talking with a reporter when the
offender, Nina Clayter, approached and began yelling at him. Mr. Jones stated that
later that same day, at approximately 6:00 p.m., he and his brother were sitting on
the front steps of his mother's home when the offender again began to yell at him.
He testified that Ms. Clayter started throwing empty bottles which struck the steps
below him. The offender also continued yelling at him, saying that he did not
belong in the neighborhood and that she was going to "whip his ass." According to
Mr. Jones, at this point the offender came across the street and struck him in the
side of the head with brass knuckles. The claimant then stood up and pushed the
offender out into the street and told her to go away. Mr. Jones turned around to
walk back to the house when Ms. Clayter struck him in the ankle, breaking it. Mr. Jones also testified that his glasses had been broken and one of his front teeth was
broken when he was struck in the face.
The Claim Investigator's original finding was that the claimant was guilty
of contributory misconduct within the meaning of the statute. The original Order
upheld the Claim Investigator's finding, disallowing the claim. Thus it became the
claimant's burden to prove by a preponderance of the evidence that he was not
guilty of contributory misconduct. The Court is of the opinion that he did not meet
this burden. There was evidence that the claimant walked out into the street and
began yelling back at the offender, which led to a physical altercation and the
claimant's victimization. Since there was no evidence presented that the claimant
was not guilty of contributory misconduct, the Court must deny this claim.
The Court is constrained by the evidence to stand by its previous ruling;
therefore, this claim must be, and is hereby, denied.
__________________
OPINION ISSUED JUNE 8, 2006
Joshua M. Gurnee
(CV-05-198)
O R D E R
Claimant appeared in person.
Benjamin F. Yancey III, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Joshua M. Gurnee, for an award under the
West Virginia Crime Victims Compensation Act, was filed April 25, 2005. The
report of the Claim Investigator, filed October 14, 2005, recommended that no
award be granted, to which the claimant filed a response in disagreement. An Order
was issued on February 20, 2006, upholding the Investigator's recommendation and
denying the claim, in response to which the claimant's request for hearing was filed
February 27, 2006. This matter came on for hearing March 29, 2006, claimant
appearing pro se and the State of West Virginia by counsel, Benjamin F. Yancey
III, Assistant Attorney General.
On October 22, 2004, the 19-year-old claimant was the victim of
criminally injurious conduct in Huntington, Cabell County. The claimant was
outside a bar when he was struck in the back of the head with an unknown object.
The claimant testified at the hearing of this matter that on the evening in
question, he and his friends arrived at the bar, then called Mango's, at
approximately 9:00 or 10:00. They stayed about five hours, until closing. The
claimant revealed that he and his friends were all 19 or 20 years of age. It was their
practice to drive from Cross Lanes in Kanawha County to Huntington in Cabell
County on the weekends.
When asked what he had to drink that night, the claimant revealed that he
had consumed beer and mixed drinks throughout the evening. He agreed with the
police report, in which he was described as "heavily intoxicated." The claimant
denied that his intoxicated condition had anything to do with his being struck in the head.
According to the claimant, as he and his friends were leaving the bar,
someone said something to him. The claimant and his friends kept walking. When
they were outside, a fight broke out. The claimant testified that he did not
participate in the fight, but was merely a spectator. Suddenly, he was attacked
from behind, knocked to the ground, and kicked repeatedly.
The claimant testified that he suffered a laceration in the back of his head
on the left side. His top three teeth were missing, so he supposed that his bridge
was kicked out in the attack. The claimant estimated his medical expenses to be
$2,000.00.
W.Va. Code §14-2A-14(f) states that a judge shall reduce an award or
deny a claim "if the reduction or denial is determined to be reasonable because of
the contributory misconduct of the claimant... ." There is no question that the
claimant herein was guilty of contributory misconduct because he engaged in
underage drinking. The question for the Court is whether to reduce the award for
his unreimbursed medical expenses, or to deny them outright.
Of particular concern to the Court is the fact that an establishment in
Huntington is serving alcohol to underage patrons, apparently without penalty.
According to the West Virginia Alcohol Beverage Control Commission, the bar
formerly known as "Mango's" was last called "Club Taboo." It has since closed,
and there is no current license on record.
In the claimant's favor are the following facts: He had the presence of
mind to walk and not drive from the bar to his friend's residence that evening; he
was working at the time of the incident and is still employed; he seems to realize
that the consequences of his behavior affect his entire family; he appears to have
stopped this type of behavior.
Based on the foregoing, the Court will award the claimant's unreimbursed
allowable expenses as set forth in the Claim Investigator's economic analysis
appended hereto. Should any additional related out-of-pocket losses be submitted at
a later date, the Court may consider them at that time.
__________________
OPINION ISSUED JUNE 22, 2006
Beau J. Miller
(CV-05-180)
O R D E R
Claimant appeared in person.
Benjamin F. Yancey, III, Assistant Attorney General, for the State of West Virginia.
FORDHAM, JUDGE:
An application of the claimant, Beau J. Miller, for an award under the
West Virginia Crime Victims Compensation Act, was filed April 14, 2005. The
report of the Claim Investigator, filed July 14, 2005, recommended that an award of
$13,042.62
be granted, to which the claimant filed a response in agreement. An Order was issued on July 29, 2005, overturning the Investigator's recommendation
and denying the claim, in response to which the claimant's request for hearing was
filed August 30, 2005. This matter came on for hearing March 29, 2006, the
claimant appearing in person, and Assistant Attorney General Benjamin F. Yancey,
III, for the State of West Virginia.
On January 14, 2005, the 23-year-old claimant was the victim of criminally
injurious conduct in Huntington, Cabell County. The claimant was exiting a
restroom when the offender, Roscoe Smith, struck him from behind.
This Court's initial denial of an award was based on the Court's finding
that the claimant was not an innocent victim of crime. W. Va. Code §14-2A-3(1)
states: " 'Contributory misconduct' means any conduct of the claimant ... that is
unlawful or intentionally tortious and that, without regard to the conduct's
proximity in time or space to the criminally injurious conduct has causal
relationship to the criminally injurious conduct that is the basis of the claim and
shall also include the voluntary intoxication of the claimant, either by the
consumption of alcohol or the use of any controlled substance when the intoxication
has a causal connection or relationship to the injury sustained."
The claimant testified at the hearing of this matter that on the evening of
the incident he had been at a "Tough Man" contest in Huntington, watching a friend
compete. After his friend's match, the claimant went to the restroom. His friend
was having an argument just outside the bathroom with Roscoe Smith. The
claimant walked over to his friend but did not say anything. When the claimant
walked back out of the bathroom, he was struck in the jaw by Mr. Smith. The
claimant testified that he went to the ground with Mr. Smith, trying to defend
himself. As the claimant was getting up to get away from the offender, he was
struck at the base of the skull and knocked out. The claimant landed face-first on
the floor. He suffered a closed head injury, damage to his teeth, and a nose
laceration. According to the medical records, the claimant's blood alcohol content
was .224%. The claimant testified that he had been drinking a significant amount,
having had seven or eight beers at the event and several prior to the contest.
The Claim Investigator's original finding was that the claimant was an
innocent victim of criminally injurious conduct within the meaning of the statute.
The original Order overturned the Claim Investigator's finding, disallowing the
claim. Thus it became the claimant's burden to prove by a preponderance of the
evidence that he was not guilty of contributory misconduct. The Court is of the
opinion that he did meet this burden. There was a lack of evidence that the claimant
did anything to provoke the offender. However, the Court is of the opinion that the
claimant was intoxicated at the time of the incident, and that he was at least to some
degree guilty of contributory misconduct. W. Va. Code §14-2A-14(f)
states, in part:
"The judge or commissioner shall reduce an award of compensation or deny a claim
for an award of compensation ... if the reduction or denial is determined to be
reasonable because of the contributory misconduct of the claimant... ."
The Court finds that there was contributory misconduct of forty percent
(40%) on the part of the claimant. Therefore, an award in the sum of $7,825.57,
representing sixty percent (60%) of the claimant's unreimbursed allowable medical
expenses is hereby granted as set forth in the Claim Investigator's memorandum of
May 15, 2006.
__________________
OPINION ISSUED JUNE 22, 2006
Carolyn S. Taylor
(CV-05-176)
and
Mark Alan Taylor
05-192)
O R D E R
Claimants appeared in person.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
FORDHAM, JUDGE:
An application of the claimant, Carolyn S. Taylor, for an award under the
West Virginia Crime Victims Compensation Act, was filed April 11, 2005. The
report of the Claim Investigator, filed September 2, 2005, recommended that no
award be granted, to which the claimant filed a response in disagreement
. An Order
was issued on December 9, 2005, upholding the Investigator's recommendation and
denying the claim, in response to which the claimant's request for hearing was filed
January 20, 2006
An application of the claimant, Mark Alan Taylor, for an award under the
West Virginia Crime Victims Compensation Act, was filed April 20, 2005. The
report of the Claim Investigator, filed October 5, 2005, recommended that no award
be granted, to which the claimant filed a response in disagreement. An Order was
issued on January 16, 2006, upholding the Investigator's recommendation and
denying the claim, in response to which the claimant's request for hearing was filed
January 20, 2006.
These matters came on for hearing April 19, 2006, having been
consolidated into one hearing since both claims arose from the same incident. The
claimants appeared in person, and Assistant Attorney General Ronald R. Brown,
appeared for the State of West Virginia.
On April 25, 2003, 23-year-old Mark Alan Taylor and his mother, 52-year-
old Carolyn S. Taylor, were the victims of criminally injurious conduct in Camden
Hill, Lewis County. The claimants were stopped in their vehicle when the offender,
Michelle Harris, drove the vehicle she was operating into the rear of the claimants'
vehicle.
This Court's initial denial of an award was based on the Court's finding
that there was no evidence of criminally injurious conduct as required by the statute.
W.Va. Code §14-2A-3(c) states: "Criminally injurious conduct does not include
conduct arising out of the ownership, maintenance or use of a motor vehicle, except
when the person engaging in the conduct intended to cause personal injury or death,
or except when the person engaging in the conduct committed negligent homicide,
driving under the influence of alcohol, controlled substances or drugs, or reckless
driving."
Mark Taylor testified at the hearing of this matter that on the afternoon of
the incident, he and his mother were traveling along Route 33 in Camden Hill,
Lewis County. Mr. Taylor stated that he had stopped because another vehicle was making a right-hand turn ahead of them. He then heard brakes, or "tires sliding,"
and the vehicle driven by Michelle Harris struck them from behind. Mr. Taylor
stated that Ms. Harris had apparently been playing with her daughter and not paying
attention to the road. The police report noted that Ms. Harris was "following too
closely" as a contributing cause of this accident. As a result of the crash, Mr.
Taylor suffered a whiplash injury and Ms. Taylor sustained neck and back injuries.
The Claim Investigator's original finding was that the claimant was not a
victim of criminally injurious conduct as required by the statute. The original Order
upheld the Claim Investigator's finding, disallowing the claim. Thus it became the
claimants' burden to prove by a preponderance of the evidence that there was
criminally injurious conduct in this incident The Court is of the opinion that the
claimants did not meet this burden. There was no evidence that the offender's
actions fell within any of the four exceptions that relate to the use of a motor vehicle
under §14-2A-3(c). Based on the foregoing, the Court must deny these claims.
The Court is constrained by the evidence to stand by its previous rulings;
therefore, these claims must be, and are hereby, denied.
__________________
OPINION ISSUED SEPTEMBER 28, 2006
IN THE MATTER OF:
Frances J. Moore
(CV-05-04)
O R D E R
Claimant appeared in person.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
SAYRE, JUDGE:
An application of the claimant, Frances J. Moore, for an award under the
West Virginia Crime Victims Compensation Act, was filed January 3, 2005. The
report of the Claim Investigator, filed July 14, 2005, recommended that no award be
granted. An Order was issued on October 21, 2005, upholding the Investigator's
recommendation and denying the claim, in response to which the claimant filed a
request for hearing. This matter came on for hearing August 4, 2006, the State of
West Virginia by counsel, Ronald R. Brown, Assistant Attorney General, at which
time the claim was submitted for decision by the Court upon the pleadings.
On November 30, 2004, the 70-year-old claimant was the victim of
criminally injurious conduct in Elkins, Randolph County. The claimant was trying
to stop a physical altercation between her son, Tommy Moore, and the alleged
offender, Tommy Watson.
As a result of the attack, the claimant suffered multiple contusions and a
neck sprain.
This Court's initial denial of an award was based on the Claim
Investigator's finding that the claimant was not an innocent victim of crime. W.Va.
Code §14-2A-3(l) states: " 'Contributory misconduct' means any conduct of the claimant, or of the victim through whom the clamant claims an award, that is
unlawful or intentionally tortious and that, without regard to the conduct's
proximity in time or space to the criminally injurious conduct has causal
relationship to the criminally injurious conduct that is the basis of the claim and
shall also include the voluntary intoxication of the claimant, either by the
consumption of alcohol or the use of any controlled substance when the intoxication
has a causal connection or relationship to the injury sustained... .."
According to the Claim Investigator's report, the claimant was visiting a
friend while her son, Tommy Moore, remained inside the vehicle. Upon exiting her
friend's residence, the claimant observed the alleged offender, Tommy Watson, and
her son in a physical altercation. In an attempt to stop this fight, Ms. Moore
scratched Mr. Watson about his neck. When this did not work, she got inside the
vehicle she had traveled in and retrieved what she referred to as an "equalizer,"
which was described in the police report as being a long metal rod. She struck Mr.
Watson multiple times in the head with this metal rod before he was able to take it
from her. The altercation ended and the claimant and Mr. Moore got into their
vehicle. They traveled a short distance before the operator of the vehicle navigated
a U-turn and sped in the direction of Mr. Watson. An independent witness
statement indicated that the vehicle was operated in the direction of Mr. Watson,
and he, in fact, had to jump out of the way to avoid being hit.
The Claim Investigator's original finding was that the claimant was guilty
of contributory misconduct within the meaning of the statute. The original Order
upheld the Claim Investigator's finding, disallowing the claim. Thus it became the
claimant's burden to prove by a preponderance of the evidence that she was not
guilty of contributory misconduct.
The claimant has not provided any additional
evidence to prove that she was not guilty of contributory misconduct. Based on the
foregoing, the Court must deny this claim.
The Court is constrained by the evidence to stand by its previous ruling;
therefore, this claim must be, and is hereby, denied.
__________________
OPINION ISSUED OCTOBER 6, 2006
Thelma H. White
(CV-05-225)
O R D E R
Claimant appeared in person and by counsel, Lisa Kerr.
Ron Brown, Assistant Attorney General, for the State of West Virginia.
FORDHAM, JUDGE:
An application of the claimant, Thelma H. White, for an award under the
West Virginia Crime Victims Compensation Act, was filed May 2, 2005. The
report of the Claim Investigator, filed September 7, 2005, recommended that the
claim be held in abeyance, to which the claimant filed a response in disagreement.
An Order was issued on June 1, 2006, denying the claim, in response to which the claimant's request for hearing was filed June 21, 2006. This matter came on for
hearing October 4, 2006, claimant appearing in person and by counsel, Lisa Kerr,
and the State of West Virginia by counsel, Ronald R. Brown, Assistant Attorney
General.
On March 6, 2001, the claimant's 25-year-old son, Tobias H. White, was
the victim of criminal conduct in Clarksburg, Harrison County. The victim's body
was discovered in a rural area of Harrison County. He had been shot in the chest as
well as in the back. A suspect was later convicted by federal authorities on drug-
related charges in Pennsylvania. There was no known motive for the shooting.
Upon conferring with a law-enforcement official, counsel for the State
agreed that the claimant's son was in fact an innocent victim of crime, and that an
award should be granted.
This Court directed the Claim Investigator to ascertain the amount of
unreimbursed allowable expenses. By memorandum dated October 5, 2006, the
Investigator established unreimbursed funeral costs of $6,000.00.
Based on the foregoing, an award in that sum is hereby granted as set out
below.
Davis Funeral Home
P.O. Box 2806
Clarksburg WV 26302-2806
FEIN: 55-0560791
FIMS: 39587............................................................$6,000.00
__________________
OPINION ISSUED OCTOBER 31, 2006
Rita M. Stewart
(CV-04-614)
O R D E R
Claimant appeared in person.
Benjamin F. Yancey, III, Assistant Attorney General, for the State of West Virginia.
SAYRE, JUDGE:
An application of the claimant, Rita M. Stewart, for an award under the
West Virginia Crime Victims Compensation Act, was filed November 23, 2004.
The report of the Claim Investigator, filed May 31, 2005, recommended that no
award be granted. An Order was issued on September 7, 2005, upholding the
Investigator's recommendation and denying the claim, in response to which the
claimant's request for hearing was filed September 29, 2005. This matter came on
for hearing August 4, 2006, the claimant appearing in person, and the State of West
Virginia by counsel, Benjamin F. Yancey, III, Assistant Attorney General.
On June 6, 2004, Norman Stewart, the claimant's 43-year-old husband,
was the victim of criminally injurious conduct in Hernshaw, Kanawha County. Mr.
Stewart was standing behind his vehicle in the road when he was struck by another
vehicle driven by Samuel Pauley. Mr. Stewart was fatally injured.
This Court's initial denial of an award was based on the Claim Investigator's finding that the victim was not an innocent victim of crime. W.Va.
Code §14-2A-3(l) states: " 'Contributory misconduct' means any conduct of the
claimant ... that is unlawful or intentionally tortious and that, without regard to the
conduct's proximity in time or space to the criminally injurious conduct, has causal
relationship to the criminally injurious conduct that is the basis of the claim and
shall also include the voluntary intoxication of the claimant, either by the
consumption of alcohol or the use of any controlled substance when the intoxication
has a causal connection or relationship to the injury sustained." The Claim
Investigator also found that Mr. Stewart was struck and killed by a hit-and-run
driver, which does not fall into any of the four exceptions that relate to the use of a
motor vehicle. W. Va. Code 14-2A-3(c) states, in part: "Criminally injurious
conduct does not include conduct arising out of the ownership, maintenance or use
of a motor vehicle, except when the person engaging in the conduct intended to
cause personal injury or death, or except when the person engaging in the conduct
committed negligent homicide, driving under the influence of alcohol, controlled
substances or drugs, or reckless driving."
The claimant testified at the hearing of this matter that on the day in
question, her husband had been traveling in his vehicle behind a vehicle being
driven by James Bentley. She stated that her husband had struck Mr. Bentley's
vehicle from behind, and while Mr. Bentley went to call the police, Mr. Stewart
walked behind his vehicle to wave other vehicles around. The alleged offender,
Samuel Pauley, then drove around a curve and struck Mr. Stewart. Mr. Pauley then
left the scene of the accident. Mr. Stewart's acute alcohol intoxication was .26%.
The Claim Investigator's original finding was that the victim was guilty of
contributory misconduct within the meaning of the statute. The original Order
upheld the Claim Investigator's finding. Thus it became the claimant's burden to
prove by a preponderance of the evidence that her husband was not guilty of
contributory misconduct.
The Court is of the opinion that she did not meet this
burden. There was no evidence produced at hearing to dispute the fact that her
husband had been drinking. Further, there was no evidence presented at trial that
this accident should fall into one of the four exceptions that relate to the use of a
motor vehicle. Since there was no evidence presented that the victim was not guilty
of contributory misconduct, the Court must deny this claim.
The Court is constrained by the evidence in this very tragic case to stand
by its previous ruling; therefore, the claim must be, and is hereby, denied.
__________________
OPINION ISSUED OCTOBER 31, 2006
Mauryel Aushawn Garrett
(CV-06-25)
O R D E R
Claimant appeared in person.
Benjamin F. Yancey, III, Assistant Attorney General, for the State of West Virginia.
FORDHAM, JUDGE:
An application of the claimant, Mauryel Aushawn Garrett, for an award
under the West Virginia Crime Victims Compensation Act, was filed January 20,
2006. The report of the Claim Investigator, filed April 4, 2006, recommended that
no award be granted, to which the claimant filed a response in disagreement. An
Order was issued on June 1, 2006, upholding the Investigator's recommendation
and denying the claim, in response to which the claimant's request for hearing was
filed June 23, 2006. This matter came on for hearing August 4, 2006, the claimant
appearing pro se and the State of West Virginia by counsel, Benjamin F. Yancey,
III, Assistant Attorney General.
On November 6, 2005, the 27-year-old claimant was the victim of
criminally injurious conduct in Huntington, Cabell County. The claimant was shot
by an unidentified assailant as he walked by a nightclub at approximately 2:00 a.m.
The claimant testified at the hearing of this matter that shortly after
midnight on the evening in question, he was in the "Fat Cats" club when shots rang
out. The claimant stated that he was shot through the lung, and fell onto a sofa. He
remembered having trouble breathing, and then the ambulance arrived and he was
taken to the hospital.
The claim was initially denied because the facts were unclear. Also, the
claimant was in possession of marijuana and a sum of money, which pointed to the
possibility of contributory misconduct.
According to the claimant, he had not engaged in any argument or
confrontation with anyone at the bar that evening. He did admit to having a small
amount of marijuana on his person, as well as some money. The claimant was
adamant that he did nothing to provoke the shooting. He cooperated with the
authorities, who returned his money to him because he had proof of income. The
claimant further testified that he was told by the detective that he was not the person
for whom the shot was intended. The identity of the offender remains unknown.
Based on the testimony adduced at the hearing of this matter, the Court
finds that the claimant was, in fact, an innocent victim of crime. He incurred
unreimbursed medical expenses and missed 20 days of work.
By memorandum dated August 9, 2006, and incorporated herein, the Claim
Investigator found the claimant's unreimbursed allowable expenses to be
$21,851.70. Therefore, an an award in that sum is hereby granted as set forth in
said memorandum. Should the claimant later incur any additional unreimbursed
allowable expenses relating to this incident, they may be reviewed by the Court at
that time.
__________________
OPINION ISSUED NOVEMBER 15, 2006
Connie Mahon Ooten
(CV-03-115)
O R D E R
Charles Stanford West, attorney at law, for the claimant.
Benjamin F. Yancey, III, Assistant Attorney General, for the State of West Virginia.
FORDHAM, JUDGE:
An application of the claimant, Connie Mahon Ooten, for an award under
the West Virginia Crime Victims Compensation Act, was filed March 10, 2003.
The report of the Claim Investigator, filed September 30, 2003, recommended that
an award be granted. An Order was issued on October 30, 2003, taking exception
to the Investigator's recommendation and denying the claim, in response to which
the claimant's request for hearing was filed November 25, 2003. This matter came
on for hearing December 9, 2005, Charles Stanford West appearing on behalf of the
claimant, and the State of West Virginia by counsel, Benjamin F. Yancey, III,
Assistant Attorney General.
On July 7, 2001, the claimant, age 38, was the victim of criminally
injurious conduct in Cora, Logan County. Ms. Ooten was walking on the side of
the road in Cora when she was struck from behind by a vehicle driven by the
alleged offender, Clifton Amburgey. Mr. Amburgey left the scene of the accident
and was arrested approximately one month later.
This Court's initial denial of an award was based on the finding that the
crime did not fall into any of the four exceptions that relate to the use of a motor
vehicle as provided by W.Va. Code º 14-2A-3(c). The offending driver was
charged with leaving the scene of an accident. The law in effect at the time, W. Va.
Code §14-2A-3(c) stated, in part: "Criminally injurious conduct does not include
conduct arising out of the
owership, maintenance or use of a motor vehicle, except when the person engaging
in the conduct intended to cause personal injury or death, or except when the person
engaging in the conduct committed negligent homicide, driving under the influence
of alcohol, controlled substances or drugs, or reckless driving."
The claimant testified at the hearing of this matter that on the night in
question, she had been at a bar and after leaving was standing next to the road
talking to a friend when a vehicle driven by Clifton Amburgey struck her from
behind and left the scene. She stated that she was knocked unconscious and that she
suffered a brain injury and injuries to her legs, hip, back, and face. Ms. Ooten
testified that Mr. Amburgey later pled guilty to leaving the scene of an accident
resulting in injury. Ms. Ooten also stated that there were witnesses to the accident
who were of the opinion that the offender was driving while intoxicated when his
vehicle struck her.
The Claim Investigator's original finding was that the victim was an
innocent victim of crime as contemplated by the Crime Victim's Compensation Act.
The original Order reversed the finding of the Claim Investigator and denied the
claim. Thus it became the claimant's burden to prove by a preponderance of the
evidence that she met one of the exceptions relating to the use of a motor vehicle.
The Court is of the opinion that she did not meet this burden. There was no
evidence presented at trial that this accident should fall into one of the four
exceptions involving the use of a motor vehicle. Since there was no evidence
presented that the claimant was a victim of an accident which is covered by the
statute, the Court must deny this claim.
The Court is constrained by the evidence in this very tragic case to stand
by its previous ruling; therefore, the claim must be, and is hereby, denied.
________________
OPINION ISSUED DECEMBER 14, 2006
Jeremy B. Robinson
(CV-06-253-Z)
O R D E R
Claimant appeared in person and by counsel, Stephen E. Hastings.
Benjamin F. Yancey III, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Jeremy B. Robinson, for an award under
the West Virginia Crime Victims Compensation Act, was filed May 12, 2006. The
report of the Claim Investigator, filed June 26, 2006, recommended that no award
be granted, to which the claimant filed no response. An Order was issued on
September 11, 2006, upholding the Investigator's recommendation and denying the
claim, in response to which the claimant's request for hearing was filed October 10,
2006. This matter came on for hearing November 8, 2006, claimant appearing in
person and by counsel, Stephen E. Hastings, and the State of West Virginia by
counsel, Benjamin F. Yancey III, Assistant Attorney General.
On July 17, 2005, the 24-year-old claimant was the victim of criminally injurious conduct in Mammoth, Kanawha County. The claimant was getting ready
to leave a gathering in Goose Hollow when he was attacked by Alvin Richards, who
struck him in the face, knocking him to the ground.
In its initial Order, this Court denied an award because the criminal case
was dismissed in Kanawha County Magistrate Court for failure of the claimant to
appear at the hearing. W
.Va. Code §14-2A-14(d) states, in part: "A judge or
commissioner, upon a finding that the claimant or victim has not fully cooperated
with appropriate law-enforcement agencies, or the claim investigator, may deny a
claim... ." This Court has held that a claimant's failure to appear for proceedings
against an offender constitutes "failure to cooperate with law-enforcement
agencies" within the meaning of the statute.
At the hearing of this matter, the claimant testified that he was unaware of
the magistrate court hearing because he never received notice of the date or time.
He indicated that he would have appeared because he does not have the money to
pay the medical bills resulting from the attack.
No evidence was presented to counter the claimant's assertion that he did
not receive notice to appear in magistrate court. In a county as large as Kanawha, it
is reasonable that such an oversight, if any, could occur.
Based on the foregoing, an award of $1,445.53 is hereby granted for
payment of the claimant's unreimbursed allowable expenses pursuant to the Claim
Investigator's memorandum of November 9, 2006. Should the claimant later
submit documentation of any additional unreimbursed allowable expenses relating
to this incident, the matter will again be reviewed by the Court.
__________________
OPINION ISSUED DECEMBER 21, 2006
Zenobia Flynn
(CV-05-510)
O R D E R
Claimant appeared in person and by counsel, Roslyn Artis.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
SAYRE, JUDGE:
An application of the claimant, Zenobia Flynn, for an award under the
West Virginia Crime Victims Compensation Act, was filed October 20, 2005. The
report of the Claim Investigator, filed April 4, 2006, recommended that no award be
granted. An Order was issued on June 22, 2006, upholding the Investigator's
recommendation and denying the claim, in response to which the claimant's request
for hearing was filed July 20, 2006. This matter came on for hearing October 18,
2006, the claimant appearing in person and by counsel, Roslyn Artis, and the State
of West Virginia by counsel, Ronald R. Brown, Assistant Attorney General.
On August 20, 2004, Belinda Tywana Flynn, the claimant's 39-year-old
daughter, was the victim of criminally injurious conduct, specifically, a fatal
gunshot to the head, in Beckley, Raleigh County. The alleged offender, Terrance Battle, was not indicted.
This Court's initial denial of an award was based on the Claim
Investigator's finding that the victim may not have been an innocent victim of
crime. W.Va. Code §14-2A-3(l) states: " 'Contributory misconduct' means any
conduct of the claimant ... that is unlawful or intentionally tortious and that, without
regard to the conduct's proximity in time or space to the criminally injurious
conduct, has causal relationship to the criminally injurious conduct that is the basis
of the claim and shall also include the voluntary intoxication of the claimant, either
by the consumption of alcohol or the use of any controlled substance when the
intoxication has a causal connection or relationship to the injury sustained." There
was an allegation by the offender that the victim had stolen money from him. In
addition, when the victim's body was found, she had a "crack stem" in her hand,
indicating possible drug use.
Testifying at the hearing of this matter was Detective Jeffrey Shumate of
the Beckley Police Department, who stated that the alleged offender, Terrance
Battle, believed that the victim had stolen $200.00 from his girlfriend's purse.
Detective Shumate stated that Mr. Battle then threatened to kill the victim. The
victim reported the threat to police. Detective Shumate testified that there was
never any evidence to show that the victim had stolen any money from the alleged
offender. He further testified that Mr. Battle never contacted police about the
supposed theft.
Darrel Flynn, the victim's brother, testified at the hearing of this matter
that he was aware that Mr. Battle had threatened to kill his sister. He stated that Mr.
Battle came to the claimant's house in the middle of the night one night looking for
Belinda Flynn. Mr. Flynn testified that he and his sister then went to a detective's
house to report that Mr. Battle had come looking for her. Mr. Flynn further stated
that his sister denied having stolen any money and that she was terrified because of
the threat made by Mr. Battle.
Zenobia Flynn, the victim's mother, testified that her daughter and
granddaughter were living with her at the time of her daughter Belinda Tywana's
death. She revealed that her daughter made approximately $700.00 per month, and
that there was never any indication that she suddenly had more money to spend on
things.
The Claim Investigator's original finding was that the victim was guilty of
contributory misconduct within the meaning of the statute. The original Order
upheld the Claim Investigator's finding. Thus it became the claimant's burden to
prove by a preponderance of the evidence that her daughter was not guilty of
contributory misconduct.
The Court is of the opinion that the claimant did meet this
burden. There was no evidence produced at hearing to suggest that the victim had
stolen any money from Mr. Battle or his girlfriend. There was also no evidence that
any possible drug use had anything to do with the crime.
The Court is constrained by the evidence to reverse its previous ruling and
find that the victim was not guilty of contributory misconduct. Therefore, an award
of $6,627.85 is hereby granted in accordance with the economic loss analysis of the
Claim Investigator dated December 1, 2006, and attached hereto. Should the
claimant later submit documentation of any additional unreimbursed allowable
expenses relating to this incident, they will be reviewed by the Court at that time.
__________________
OPINION ISSUED FEBRUARY 9, 2007
Jenivee D. Cantrell
(CV-05-613)
O R D E R
By Order issued November 1, 2006, no award was granted because of the
claimant's alleged contributory misconduct. The claimant appealed.
Upon further review of the record in this case, the Court finds no indication
of any misconduct on the part of the claimant. She was in fact an innocent victim of
crime. Therefore, an award in the sum of $2,919.44 is hereby granted for payment
of her medical and dental expenses, as well as relocation costs. Should the claimant
later submit documentation of any additional unreimbursed allowable expenses
relating to the incident giving rise to this claim, those expenses will be reviewed by
the Court at that time.
__________________
OPINION ISSUED FEBRUARY 9, 2007
Raymond E. Short
(CV-05-643)
O R D E R
Claimant appeared in person.
Benjamin F. Yancey III, Assistant Attorney General, for the State of West Virginia.
SAYRE, JUDGE:
An application of the claimant, Raymond E. Short, for an award under the
West Virginia Crime Victims Compensation Act, was filed December 29, 2005.
The report of the Claim Investigator, filed July 31, 2006, recommended that an
award of $3,622.50 be granted, to which the claimant filed a response in agreement.
An Order was issued on October 31, 2006, reversing the Investigator's
recommendation and denying the claim, in response to which the claimant's request
for hearing was filed November 9, 2006. This matter came on for hearing January
24, 2007, the claimant appearing pro se and the State of West Virginia by counsel,
Benjamin F. Yancey III, Assistant Attorney General.
On March 19, 2004, the 46-year-old claimant was the victim of criminally
injurious conduct in Bomont, Clay County.
The claimant testified at the hearing of this matter that on the day in
question, he had gone to the funeral of his mother's husband, Byron White. At the
conclusion of the service, members of the deceased's side of the family suddenly
attacked him and his sister.. The assault was completely unprovoked. The claimant
found out later that the assailants simply did not want his side of the family present at the funeral. Four men restrained the claimant while another struck him in the
right eye with brass knuckles, breaking his cheekbone.
This Court's initial denial of an award was based on the vagueness of the
events leading up to the assault. The claimant was not in fact involved in an
altercation, but had been attempting to defend himself and his family.
Based on the testimony adduced at the hearing, the Court finds that the
claimant was free from any contributory misconduct, and an award should be made.
According to the Claim Investigator's original recommendation, the
claimant's unreimbursed allowable expenses total $4,122.16 in medical bills and
work loss. Therefore, an award in that sum is hereby granted as set forth in said
recommendation. Should the claimant later submit documentation of any additional
unreimbursed allowable expenses relating to this incident, the Court may review the
matter again in its discretion.
________________
OPINION ISSUED FEBRUARY 20, 2007
Darrell L. Byrd
(CV-05-241)
O R D E R
Claimant appeared in person.
Benjamin F. Yancey, III, Assistant Attorney General, for the State of West Virginia.
FORDHAM, JUDGE:
An application of the claimant, Darrell L. Byrd, for an award under the
West Virginia Crime Victims Compensation Act, was filed May 17, 2005. The
report of the Claim Investigator, filed February 27, 2006, recommended that no
award be granted, to which the claimant filed a response in disagreement. An Order
was issued on April 18, 2006, upholding the Investigator's recommendation and
denying the claim, in response to which the claimant's request for hearing was filed
July 17, 2006. This matter came on for hearing January 24, 2007, the claimant
appearing in person, and Assistant Attorney General Benjamin F. Yancey, III, for
the State of West Virginia.
On January 30, 2005, the 46-year-old claimant was the victim of criminally
injurious conduct in Charleston, Kanawha County. The claimant was standing in
the parking lot of the Birdhouse Café when the offender, Bee Jay Taylor,
approached him and knocked him out. Mr. Taylor then began kicking the claimant
while he was down. The claimant suffered a broken nose and broken eye socket,
and all of his upper teeth were kicked out.
This Court's initial denial of an award was based on the Claim
Investigator's finding that the claimant was not an innocent victim of crime. W. Va.
Code §14-2A-3(1) states: " 'Contributory misconduct' means any conduct of the
claimant ... that is unlawful or intentionally tortious and that, without regard to the
conduct's proximity in time or space to the criminally injurious conduct has causal
relationship to the criminally injurious conduct that is the basis of the claim and
shall also include the voluntary intoxication of the claimant, either by the consumption of alcohol or the use of any controlled substance when the intoxication
has a causal connection or relationship to the injury sustained... ."
The claimant testified at the hearing of this matter that on the day of the
incident he had gone out with some friends for drinks. Mr. Byrd stated that he first
arrived at the Birdhouse Café at approximately 2:00 p.m. He testified that while
there he was drinking Seagram's 7 and 7-Up and that he and his friends were
shooting pool. At some point, the claimant and his friends left the Birdhouse Café
and went to the American Legion, where Mr. Byrd testified that he had one beer.
They then went back to the Birdhouse Café. The claimant testified that throughout
the course of the day, he consumed approximately five or six Seagram's 7 and 7-Up
drinks and one beer. He stated that around 10:00 p.m. the bartender told him she
would no longer serve him and asked him to leave. Mr. Byrd left the bar, and while
he was standing in the parking lot, the bartender came outside and started yelling at
him. He testified that the bartender's boyfriend, Bee Jay Taylor, then came outside
and hit him, knocking him out. Mr. Taylor then came back and began kicking him.
Also testifying at the hearing of this matter was Detective Autumn Davis
of the Charleston Police Department, who stated that she had responded to the scene
at the Birdhouse Café on the night in question. According to Detective Davis, the
bartender informed her that Mr. Byrd had gotten involved in several arguments
throughout the day and also cussed her out before she asked him to leave. Detective
Davis stated that another witness revealed that Mr. Byrd had been drinking.
Detective Davis then went to the hospital to interview the claimant, at which point
she smelled alcohol on him.
The Claim Investigator's original finding was that the claimant was guilty
of contributory misconduct within the meaning of the statute. The original Order
upheld the Claim Investigator's finding, disallowing the claim. Thus it became the
claimant's burden to prove by a preponderance of the evidence that he was not
guilty of contributory misconduct. The Court is of the opinion that he did not meet
this burden. There was evidence that the claimant had been drinking and had gotten
into several arguments while at the bar. Since there was no evidence presented that
the claimant was not guilty of contributory misconduct, the Court must deny this
claim.
The Court is constrained by the evidence to stand by its previous ruling;
therefore, this claim must be, and is hereby, denied.
__________________
OPINION ISSUED MARCH 13, 2007
Ronnie Lee Hodge
(CV-05-561)
O R D E R
Claimant appeared in person and by counsel, Marsha Dalton, Attorney at Law.
Benjamin F. Yancey III, Assistant Attorney General, for the State of West Virginia.
SAYRE, JUDGE:
An application of the claimant, Ronnie Lee Hodge, for an award under the
West Virginia Crime Victims Compensation Act, was filed November 10, 2005.
The report of the Claim Investigator, filed June 22, 2006, recommended that no
award be granted, to which the claimant filed a response in disagreement. An Order
was issued on August 18, 2006, upholding the Investigator's recommendation and
denying the claim, in response to which the claimant's request for hearing was filed
August 23, 2006. This matter came on for hearing January 24, 2007, the claimant
appearing in person and by counsel, Marsha Dalton, and the State of West Virginia
by counsel, Benjamin F. Yancey III, Assistant Attorney General.
In the early morning hours of November 15, 2003, the 48-year-old
claimant was the victim of criminally injurious conduct in Kenova, Wayne County.
After exiting an establishment known as the Coney Island Bar, the claimant was
attacked by the owner, Shirley McCain (sp), who struck him with a "slapjack,"
breaking his nose.
In its initial denial of an award in this claim, the Court found that the crime
was not timely reported to law-enforcement officials as required by
W.Va. Code
§14-2A-14(b) which states in part: "... The judge or commissioner may not approve
an award of compensation if the criminally injurious conduct upon which the claim
is based was not reported to a law-enforcement officer or agency within seventy-
two hours after the occurrence of the conduct, unless it is determined that good
cause existed for the failure to report the conduct within the seventy-two hour
period." According to
the Claim Investigator, the incident occurred on November
15, 2003, but was not reported to police until November 27, 2003.
Testifying at the hearing of this matter was Harold David Osborne, who
stated that he, the claimant, and another individual had been drinking at the
residence shared by the claimant and Mr. Osborne. They were celebrating the
claimant's birthday. The claimant and the other individual left at approximately
11:00 p.m. to go to the bar. When they returned at 4:00 a.m., the claimant had
blood all over him. Mr. Osborne asked what had happened, and the claimant
revealed that Shirl McKeand (sic) had hit him with a blackjack. Mr. Osborne
advised the claimant to call the police, and an officer from the Kenova Police
Department arrived at about 4:30 a.m. The officer took information from the
claimant and advised him to file a report first thing in the morning.
According to Mr. Osborne, the claimant did in fact go to file the report
between 9:00 a.m. - 10:00 a.m. Their neighbor, Don Davis, gave him a ride to the
station, and the claimant walked back
The next witness to testify was Tony Simpkins, who had accompanied the
claimant to the bar. Mr. Simpkins confirmed that they had gone to the bar to
celebrate the claimant's birthday. They drank a few beers and shot a few games of
pool. As they were getting ready to leave, Shirl the bar owner and the claimant had
a few words. Mr. Simpkins stated that he had gone to the rest room, and when he
returned, he heard the claimant ask Shirl if he could get a case of beer on credit, and
they exchanged a few more words. According to Mr. Simpkins, they were outside
when Shirl began striking the claimant in the face with a slapjack. When
questioned about the possible motive for the assault, Mr. Simpkins opined that a
fight had almost broken out in the back of the bar, which angered Shirl. The
claimant was not a party to that activity.
The final witness to testify was the claimant, who confirmed the version of
events as described by Mr. Simpkins. Upon cross-examination, the claimant admitted that he had consumed three beers before leaving his residence that
evening, and then drank seven more at the bar. The claimant also stated that the
police report date of November 27, 2003, was incorrect; that he had in fact gone to
the police station the morning of the assault, November 15, 2003.
Based on the foregoing, the Court finds that the claimant has met his
burden of proving that the criminal conduct was in fact timely reported to law-
enforcement authorities. An award is therefore warranted. By memorandum dated
March 5, 2007, the Claim Investigator found the claimant's unreimbursed allowable
expenses to be $6,720.00. Accordingly, an award in that sum is hereby granted.
Should the claimant later submit documentation of additional unreimbursed
allowable expenses relating to the incident giving rise to this claim, the matter will
again be reviewed by the Court.
__________________
OPINION ISSUED MARCH 29, 2007
Pamela Jewett
(CV-05-389)
O R D E R
Claimant appeared in person and by counsel, W. Jesse Forbes, attorney at law.
Benjamin F. Yancey III, Assistant Attorney General, for the State of West Virginia.
SAYRE, JUDGE:
An application of the claimant, Pamela Jewett, for an award under the
West Virginia Crime Victims Compensation Act, was filed August 12, 2005, on
behalf of the victim's minor child. The report of the Claim Investigator, filed May
10, 2006, recommended that no award be granted, to which the claimant filed a
response in disagreement. An Order was issued on June 15, 2006, upholding the
Investigator's recommendation and denying the claim, in response to which the
claimant's request for hearing was filed August 10, 2006. This matter came on for
hearing January 24, 2007, the claimant appearing in person and by counsel, W.
Jesse Forbes, and the State of West Virginia by Assistant Attorney General
Benjamin F. Yancey, III.
On July 28, 2005, Jody D. Gray
, the 28-year-old father of claimant's
child,, was the victim of criminally injurious conduct in Charleston, Kanawha
County. Mr. Gray was found face down on the kitchen floor of his residence by
neighbors. The police were notified and it was discovered that the victim had a
gunshot wound to the neck.
This Court's initial denial of an award was based on the Claim
Investigator's finding that the claimant had not documented any dependent's
economic loss. W.Va. Code §14-2A-3(d) states: " 'Dependent' means an individual
who received over half of his or her support from the victim. For the purpose of
determining whether an individual received over half of his or her support from the
victim, there shall be taken into account the amount of support received from the
victim as compared to the entire amount of support which the individual received
from all sources.... The term 'support' includes, but is not limited to, food, shelter, clothing, medical and dental care and education."
The claimant testified at the hearing of this matter that her daughter, Jayla
Gray, was the daughter of the victim, Jody D. Gray. Ms. Jewett stated that Mr.
Gray supported his daughter with monthly payments of $240.00. He gave
additional money for such things as clothes and "going out places." Ms. Jewett
further testified that Mr. Gray was not working at the time he was killed, but she
herself was employed. Her salary was approximately $320.00 per week. Ms.
Jewett was also receiving Housing and Urban Development subsidies in the amount
of $200.00 per month toward her rent, which was $500.00.
The Claim Investigator's original finding was that the claimant failed to
document any dependent's economic loss. This Court's original Order upheld the
Claim Investigator's finding, disallowing the claim. Thus it became the claimant's
burden to prove by a preponderance of the evidence that her daughter did receive
over half of her support from the victim.
At the hearing of this matter, it was established that the claimant's
daughter was the natural daughter of the deceased. The child indeed was an
innocent victim left without a father, something that has been agreed to at every step
of the proceedings, and certainly at this juncture. However, in this Court's opinion,
the facts as presented do not demonstrate that she was a dependent of the deceased
at the time of his death as defined in W.Va. Code §14-2A-3(d). While it is clear
that the deceased was paying child support in the monthly amount of $240.00, the
evidence adduced at trial revealed that the claimant's daughter was receiving more
than half of her support from the claimant herself, supplemented occasionally by
other family members. Since the claimant has failed to sustain her burden of
proving by a preponderance of the evidence that the child was receiving over half of
her support from the victim, the Court must deny this claim.
The Court is constrained by the evidence to stand by its previous ruling;
therefore, the claim must be, and is hereby, denied.
________________
OPINION ISSUED MAY 19, 2007
Steve A. Browning
(CV-05-098)
O R D E R
Claimant appeared in person.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
FORDHAM, JUDGE:
An application of the claimant, Steve A. Browning, for an award under the
West Virginia Crime Victims Compensation Act, was filed February 17, 2005. The
report of the Claim Investigator, filed August 9, 2005, recommended that no award
be granted, to which the claimant filed a response in disagreement. An Order was
issued on December 14, 2005, upholding the Investigator's recommendation and
denying the claim, in response to which the claimant's request for hearing was filed
January 17, 2006. This matter came on for hearing March 29, 2006, the claimant
appearing in person, and Assistant Attorney General Ronald R. Brown for the State of West Virginia.
On January 6, 2005, the 49-year-old claimant was the victim of criminally
injurious conduct in Madison, Boone County. The claimant was at his residence
when the offender, Russell Gillenwater, came inside with a gun and shot Mr.
Browning in the head.
This Court's initial denial of an award was based on the Claim
Investigator's finding that the claimant was not an innocent victim of crime. W. Va.
Code §14-2A-3(1) states: " 'Contributory misconduct' means any conduct of the
claimant ... that is unlawful or intentionally tortious and that, without regard to the
conduct's proximity in time or space to the criminally injurious conduct has causal
relationship to the criminally injurious conduct that is the basis of the claim ..."
The claimant testified at the hearing of this matter that on the morning of
the incident he had been in his bed asleep when he heard a knock on the door.
When he asked who was at the door, a voice answered that it was Christina. Mr.
Browning, thinking that it was his oldest daughter, Christina, opened the door. The
offender, Russell Gillenwater, was standing behind the woman with a gun. Mr.
Gillenwater came into the claimant's residence and struggled with Mr. Browning.
The claimant testified that Mr. Gillenwater shot at him three times, and the third
bullet struck him in the head. Mr. Browning stated that he had no idea why Mr.
Gillenwater came to his home on the morning of the incident. He testified that he is
on prescription medication but that he does not sell it to anyone.
The Claim Investigator's original finding was that the claimant was guilty
of contributory misconduct within the meaning of the statute. The original Order
upheld the Claim Investigator's finding, disallowing the claim. Thus it became the
claimant's burden to prove by a preponderance of the evidence that he was not
guilty of contributory misconduct. The Court is of the opinion that Mr. Browning
has met this burden. There was no evidence presented that the claimant was guilty
of contributory misconduct. The claimant testified that he was at home sleeping just
prior to the incident and that he did not know the offender.
The Court is constrained by the evidence to reverse its previous ruling and
find that the claimant was not guilty of contributory misconduct. Therefore, an
award shall be granted.
The Claim Investigator is hereby ordered to complete an economic analysis
of the claimant's unreimbursed allowable medical expenses for further review by
the Court.
__________________
OPINION ISSUED MA7 21, 2007
Sherlie L. Ellis
(CV-06-0048)
O R D E R
Claimant appeared in person and by counsel, William T. Forester, attorney at law.
Benjamin F. Yancey, III, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Sherlie L. Ellis, for an award under the
West Virginia Crime Victims Compensation Act, was filed January 31, 2006. The report of the Claim Investigator, filed July 11, 2006, recommended that no award be
granted. An Order was issued on September 29, 2006, upholding the Investigator's
recommendation and denying the claim, in response to which the claimant's request
for hearing was filed November 9, 2006. This matter came on for hearing April 25,
2007, the claimant appearing in person and by counsel, William T. Forester, and the
State of West Virginia by counsel, Benjamin F. Yancey, III, Assistant Attorney
General.
The facts of this tragic claim are not in dispute. On November 29, 2005,
Rhonda R. Creakman, the claimant's 27-year-old daughter, was the victim of
criminally injurious conduct in Logan, Logan County. Ms. Creakman was riding as
a passenger in her vehicle, being driven by David Turner Jr., who lost control while
racing another vehicle operated by his brother, Christopher Turner. David Turner
Jr. was charged with DUI felony death, driving with a revoked license, drag racing,
and reckless driving.
This Court's initial denial of an award was based on a lack of information
concerning a wrongful death lawsuit and possible insurance coverage.
It was revealed at the hearing of this matter that the claimant seeks
compensation not only for outstanding ambulance, medical, and funeral expenses,
but also dependent's economic loss for the support of her grandchild, Gavin
Creakman, son of victim Rhonda Creakman.
According to counsel for the claimant, the wrongful death lawsuit against
the two offending drivers is still pending in Logan County Circuit Court. Offender
David Turner Jr. had motor vehicle liability insurance coverage of $20,000.00. Any
proceeds from that policy paid to the estate of the victim would be subject to
subrogation by the Crime Victims Compensation Fund.
At the conclusion of the hearing, the Court ruled in favor of the claimant
and directed the Claim Investigator to prepare an economic loss analysis of the
claimant's unreimbursed allowable expenses.
Based on the Claim Investigator's findings, an award of $14,896.83 is
hereby granted pursuant to the Investigator's memorandum of May 21, 2007.
Should documentation of any additional unreimbursed allowable expenses be
presented at a later date, they will be reviewed by the Court at that time.
__________________
OPINION ISSUED JUNE 22, 2007
Rhonda S. Largent
(CV-05-428)
O R D E R
Claimant appeared in person.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Rhonda S. Largent, for an award under the
West Virginia Crime Victims Compensation Act, was filed August 31, 2005. The
report of the Claim Investigator, filed October 14, 2005, recommended that no
award be granted. An Order was issued on December 16, 2005, upholding the
Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed December 29, 2005. This matter came on
for hearing May 15, 2007, the claimant appearing in person, and Assistant Attorney
General Ronald R. Brown, for the State of West Virginia.
On April 15, 2005, the 46-year-old claimant was the victim of criminally
injurious conduct in Berkeley County. While at work, the claimant fell over a
coworker's feet onto the floor, injuring her sciatic nerve.
This Court's initial denial of an award was based on the Claim
Investigator's finding that there was no evidence of criminally injurious conduct as
required by statute. W. Va. Code º 14-2A-3(k) defines a "victim" as "a person who
suffers personal injury or death as a result of any one of the following: (1)
Criminally injurious conduct; (2) the good faith effort of the person to prevent
criminally injurious conduct.... ." W. Va. Code º 14-2A-3 describes "criminally
injurious conduct" as: "....conduct that occurs or is attempted in this state....which
by its nature poses a substantial threat of personal injury or death and is punishable
by fine or imprisonment.... ."
The claimant testified at the hearing of this matter that on the evening of
the incident she was working at the Pizza Hut in Inwood, Berkeley County. Mrs.
Largent stated that sometime between 6:30 p.m. and 7:00 p.m. that evening, she was
working at the cut table with Angela Gleockler. The claimant explained that when
she took a step back from the table, she saw in her peripheral vision one of the pizza
delivery men, Jason Litton, knelt down behind her. Mrs. Largent stated that she
then tripped over his foot and fell on her right side, injuring her sciatic nerve.
Ms. Gleockler testified on the claimant's behalf at the hearing of this
matter. According to Ms. Gleockler, she had gone to get some pizza boxes when
she overheard the alleged offender, Mr. Litton, state that he was going to take four
orders if he had to cause a big scene or not. Ms. Gleockler testified that she then
saw the claimant fall over Mr. Litton's leg as he knelt down behind her. Ms.
Gleockler further testified that she didn't recall Mr. Litton saying anything specific
about the claimant.
The Claim Investigator's original finding was that there was no evidence
of criminally injurious conduct as required by statute. The original Order upheld
the Claim Investigator's finding, disallowing the claim. Thus it became the
claimant's burden to prove by a preponderance of the evidence that she was the
victim of criminally injurious conduct. The Court is of the opinion that she did not
meet this burden.
Since there was no evidence that the claimant was injured as the result of
criminally injurious conduct, the Court must
stand by its previous ruling and deny
the claim.
Claim denied.
__________________
OPINION ISSUED JUNE 22, 2007
John R. Sarver
(CV-06-164)
O R D E R
Claimant appeared in person.
Benjamin F. Yancey, III, Assistant Attorney General, for the State of West Virginia.
SAYRE, JUDGE:
An application of the claimant, John R. Sarver, for an award under the
West Virginia Crime Victims Compensation Act, was filed March 27, 2006. The
report of the Claim Investigator, filed August 23, 2006, recommended that no
award be granted, to which the claimant filed a response in disagreement. An Order
was issued on December 21, 2006, upholding the Investigator's recommendation
and denying the claim, in response to which the claimant's request for hearing was
filed January 12, 2007. This matter came on for hearing July 10, 2007, the claimant
appearing in person, and the State of West Virginia by counsel, Benjamin F.
Yancey, III, Assistant Attorney General.
On January 1, 2006, the 22-year-old claimant was the victim of criminally
injurious conduct in South Charleston, Kanawha County. The claimant was
leaving a bar known as Schultzies when he was struck in the head by Barry Payne.
As a result of this incident, the claimant suffered multiple contusions and facial
fractures.
This Court's initial denial of an award was based on the Claim
Investigator's finding that the claimant did not pursue charges against the alleged
offender. W.Va. Code §14-2A-14(d) provides: "A judge or commissioner, upon a
finding that the claimant or victim has not fully cooperated with appropriate law-
enforcement agencies ... may deny a claim, reduce an award of compensation, or
reconsider a claim already approved."
The claimant testified at the hearing of this matter that after the incident
with Mr. Payne, he learned that Mr. Payne had numerous charges brought against
him in the past, but that all of those charges had been dismissed. He further learned
that Mr. Payne lived in the same area as the claimant and his mother. Mr. Sarver
testified that he decided not to pursue charges against Mr. Payne for fear of
retaliation by him.
The Claim Investigator's original finding was that the claimant failed to
pursue charges against the alleged offender.
The original Order upheld the Claim
Investigator's finding, disallowing the claim. It became the claimant's burden to
prove to the Court why it should make an award of compensation on his behalf
despite his failure to cooperate with law-enforcement.
The claimant testified that he
was concerned about what the alleged offender might do to him and his family if he
pursued the charges. In light of the evidence put forth by the claimant, the Court is
of the opinion that he has met his burden of proof. The Court therefore finds that
the claimant was an innocent victim of crime and that, while he chose not to pursue
charges against the alleged offender, an award of compensation is warranted.
However, the Court further finds that the award should be reduced by one-half for
the claimant's failure to pursue charges.
The Court is constrained by the evidence to reverse its previous ruling.
Based on the foregoing, the Claim Investigator is hereby directed to
prepare an economic loss analysis to ascertain the claimant's unreimbursed
allowable expenses relating to the incident, reduced by half, for further review by
this Court.
________________
OPINION ISSUED JUNE 22, 2007
Luis Mendoza
(CV-05-243)
O R D E R
Claimant appeared in person and by counsel, Bridget M. Cohee, Attorney at Law.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Luis Mendoza, for an award under the
West Virginia Crime Victims Compensation Act, was filed May 18, 2005. The
report of the Claim Investigator, filed February 27, 2006, recommended that no
award be granted, to which the claimant filed a response in disagreement. An Order
was issued on March 31, 2006, upholding the Investigator's recommendation and
denying the claim, in response to which the claimant's request for hearing was filed
April 7, 2006. This matter came on for hearing May 15, 2007, the claimant
appearing in person and by counsel, Bridget M. Cohee, and the State of West
Virginia by counsel, Ronald R. Brown, Assistant Attorney General.
On August 15, 2004, the 46-year-old claimant was the victim of criminally
injurious conduct in Martinsburg, Berkeley County. The claimant was struck in the
back of the head by a group of men who then stuck him with their vehicle while he
was lying on the ground. As a result of this incident, the claimant suffered a
compressed skull fracture.
This Court's initial denial of an award was based on the Claim
Investigator's finding that the incident appeared to be a hit-and-run accident that did
not fall within one of the four exceptions regarding the use of a motor vehicle. At
the time of this incident, W.Va. Code §14-2A-3(c) provided: "....Criminally
injurious conduct does not include conduct arising out of the ownership,
maintenance or use of a motor vehicle, except when the person engaging in the
conduct intended to cause personal injury or death, or except when the person
engaging in the conduct committed negligent homicide, driving under the influence
of alcohol, controlled substances or drugs, or reckless driving."
The claimant testified through an interpreter at the hearing of this matter
that on the evening in question, he went to Lobo's Club and had several beers.
Between 1:30 a.m. and 2:00 a.m. he left the club with Betsy Zamora, whom he had
met at the bar. He stated that when they were walking to his house from his vehicle,
a white vehicle pulled up on the street near him and several Hispanic men got out.
One of the men struck him in the back of the head with an unknown object. Mr.
Mendoza testified through the interpreter that as he was lying on the ground he
noticed the vehicle coming towards him and it struck him in the face. The claimant
sustained a compressed skull fracture and a large cut on his head.
Patrolman R. R. Bleigh of the Martinsburg City Police testified that the
incident occurred in front of the claimant's residence at 306 ½ South Maple
Avenue, Martinsburg, Berkeley County between 1:30 a.m. and 2:00 a.m. He
responded to City Hospital in Martinsburg where Mr. Mendoza had been taken for
treatment. Patrolman Bleigh and another investigating officer met with Mr.
Mendoza on multiple occasions to discuss the matter. Patrolman Bleigh also
testified that the woman with whom Mr. Mendoza had left the bar, Betsy Zamora,
had been arrested multiple times along with her Hispanic boyfriend for armed
robberies, drug offenses, and several other charges.
The Claim Investigator's original finding was that this incident appeared
to be a hit-and-run accident that did not fall within one of the four exceptions in the
crime victims statute regarding the use of a motor vehicle
as "criminally injurious
conduct." The original Order upheld the Claim Investigator's finding, disallowing
the claim. Thus it became the claimant's burden to prove by a preponderance of the
evidence that he was the innocent victim of a crime that fell within the statutory
definition.
The claimant testified through an interpreter that he was struck in the
back of the head by an unknown assailant and that he was then struck by the vehicle
that the men had driven. In light of the evidence put forth by the claimant, the
Court is of the opinion that he has met his burden of proof. The evidence adduced
at the hearing of the matter establishes that the claimant was an innocent victim of a
crime when he was struck by a man with an unknown object and that this was the
assault that led to the claimant's injury.
The Court is constrained by the evidence to reverse its previous ruling.
Based on the foregoing, the Claim Investigator is hereby directed to
prepare an economic loss analysis to ascertain the claimant's unreimbursed
allowable expenses relating to the incident for further review by this Court.
________________
OPINION ISSUED JUNE 22, 2007
Christine K. Knavel
(CV-03-331)
O R D E R
Claimant appeared in person.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
GRITT, JUDGE:
An application of the claimant, Christine K. Knavel, for an award under
the West Virginia Crime Victims Compensation Act, was filed July 10, 2003. The
report of the Claim Investigator, filed December 12, 2003, recommended that no
award be granted. An Order was issued on January 22, 2004, upholding the
Investigator's recommendation and denying the claim, in response to which the
claimant's request for hearing was filed October 21, 2005. This matter came on for
hearing May 15, 2007, the claimant appearing in person, and the State of West
Virginia by counsel, Ronald R. Brown, Assistant Attorney General.
On October 30, 2001, the 30-year-old claimant was the victim of
criminally injurious conduct in Clarksburg, Harrison County. The claimant and the
alleged offender, Michael Weyant, had an argument and Mr. Weyant assaulted her.
The alleged offender would not let the claimant leave, and later that night sexually
assaulted her.
This Court's initial denial of an award was based on the Claim
Investigator's finding that, since no charges were filed against the offender, the
claimant failed to cooperate with law enforcement officials. W.Va. Code §14-2A-
14(d) provides: "A judge ... upon a finding that the claimant or victim has not fully
cooperated with appropriate law-enforcement agencies ... may deny a claim, reduce an award of compensation, or reconsider a claim already approved." Previous
rulings of the Court have held that because a claimant did not assist in the
prosecution of the offender, such inaction constitutes a failure to cooperate with
law-enforcement officials, and no award should be made.
The claimant testified at the hearing of this matter that on the evening in
question, Mr. Weyant, her husband at the time, asked her to come over to his house
in Clarksburg to get the rest of her belongings. She stated that when she went over
to his house, he started beating her up. Mr. Weyant would not let her leave, and
told her that she was going to have sex with him. Ms. Knavel testified that she
finally convinced him to let her go, at which point she went to a friend who took her
to the hospital. She further stated that at that time the police were contacted. Ms.
Knavel testified that the charges against Mr. Weyant were dropped because he was
taken to Pennsylvania where he was awaiting trial for beating her in front of her
children and beating up one of her sons. The claimant testified that Mr. Weyant
was incarcerated in Pennsylvania as a result of that prosecution, and has been
incarcerated three times since then and is currently in prison in Pennsylvania. She
further stated that if Mr. Weyant were extradited back to West Virginia, she would
pursue the charges against him relating to the incident giving rise to this claim.
The Claim Investigator's original finding was that the claimant failed to
cooperate with law-enforcement officials. The original Order upheld the Claim
Investigator's finding, disallowing the claim. Thus it became the claimant's burden
to prove by a preponderance of the evidence that she did in fact cooperate with law-
enforcement officials in the prosecution of the offender.
The claimant testified that
she would have cooperated with law-enforcement officials had charges been
brought against him in West Virginia, but that he was charged with crimes in
Pennsylvania and was prosecuted there. In light of the evidence put forth by the
claimant, the Court is of the opinion that she has met her burden of proof. The
evidence adduced at the hearing of the matter establishes that the claimant did
cooperate with law-enforcement officials to the extent possible as there was no
prosecution in West Virginia.
The Court is constrained by the evidence to reverse its previous ruling.
Based on the foregoing, the Claim Investigator is hereby directed to
prepare an economic loss analysis to ascertain the claimant's unreimbursed
allowable expenses relating to the incident for further review by this Court.
__________________
OPINION ISSUED SEPTEMBER 27, 2007
John R. Sarver
(CV-06-164)
O R D E R
By Order issued August 23, 2007, the Claim Investigator was directed to
prepare an economic loss analysis of the claimant's unreimbursed allowable
expenses resulting from injures sustained as the result of criminal conduct which
occurred on January 1, 2006.
Inasmuch as the Court has received documentation of unreimbursed
allowable expenses of $1,275.20 which are related to the original injury, an award in that sum is hereby granted pursuant to the Investigator
's memorandum of August 27, 2007. Any additional expenses relating to this
incident may be reviewed by the Court as they are submitted.
West Virginia Crime Victims Compensation Fund
Reference to Opinions
?
CONTRIBUTORY MISCONDUCT
?
CRIMINAL CONDUCT
?
ECONOMIC LOSS
?
FAILURE TO REPORT CRIME
?
INNOCENT VICTIM
?
MENTAL HEALTH EXPENSES
?
WORK LOSS
The following is a compilation of head notes representing decisions from
July 1, 2005 to June 30, 2007.
CONTRIBUTORY MISCONDUCT
BROWNING, STEVE A. (CV-05-098)
The claimant was at his residence when the offender came inside with a
gun and shot him. The Court's initial denial of the award was based on the Claim
Investigator's finding that the claimant was not an innocent victim of crime. W.Va.
Code º 14-2A-3(1) states: "'Contributory misconduct' means any conduct of the
claimant...that is unlawful or intentionally tortious and that, without regard to the
conduct's proximity in time or space to the criminally injurious conduct has causal
relationship to the criminally injurious conduct that is the basis of the claim..." The
Court found that there was no evidence that the claimant was guilty of contributory
misconduct and granted an award.p. 195
BYRD, DARRELL L. (CV-05-241)
The claimant was standing in the parking lot of a café when the offender
approached him and knocked him out, then kicked the claimant while he was
down. The Claim Investigator recommended that no award be granted. An Order
was issued upholding the Investigator's recommendation and denying the claim.
The Court held that claimant failed to prove by a preponderance of the evidence
that he was not guilty of contributory misconduct. There was evidence that the
claimant had been drinking and had gotten into several arguments at the bar. Claim
disallowed.p.191
GURNEE, JOSHUA M. (CV-05-198)
Claimant, who was underage, was struck in the back of the head with an
unknown object at a bar. The Court found that claimant was guilty of contributory
misconduct but allowed him to recover for his unreimbursed medical expenses.
Award of $1,698.25.p.
177
HOLLAND, AMY (CV-04-400)
Claimant's decedent was killed in an automobile accident where he was
the passenger in a car driven by an intoxicated driver. The Court found that the
claimant proved by a preponderance of the evidence that the decedent was not guilty of contributory misconduct. Award of $6,000.00.
p. 169
JONES, ALVA P. (CV-05-045)
Claimant suffered injuries when the offender struck him in the face and in
the ankle. However, the Court found that the claimant was guilty of contributory
misconduct when he yelled back at the offender, which led to the physical
altercation and the claimant's victimization. Claim disallowed..
p. 176
JONES, RUTH (CV-03-526)
The Court reduced an award to claimant by twenty-five percent where
there was evidence of contributory misconduct showing that claimant's minor
daughter had alcohol in her system while she was riding as a passenger in an all-
terrain vehicle driven by an intoxicated driver. The Court found that although the
victim was not legally intoxicated, the blood alcohol level in her system more than
likely had a negative impact on her judgment in accepting a ride on a motor
vehicle whose operator was clearly impaired. Award of $4,500.
00. .
p. 167
KOVAR, MARY E. (CV-04-109)
Based on the evidence presented at the hearing, the Court found that the
claimant, who was assaulted while trying to stop an argument between a couple at
a bar, was not guilty of contributory misconduct. Award of $419.58.
.
pp.
164, 166
MILLER, BEAU J. (CV-05-180)
Claimant, while exiting a restroom, was struck from behind. The evidence
showed that claimant was intoxicated at the time of the incident. Pursuant to
W.Va. Code º 14-2A-14(f), the Court found that claimant was guilty of forty
percent contributory misconduct and reduced claimant's award accordingly.
Award of $7,825.57. .
p.
178
MOORE, FRANCES J. (CV-05-04)
Where claimant was injured while trying to stop a physical altercation
between her son and the offender, the Court found that claimant was guilty of
contributory misconduct when she struck the offender with a metal rod. Claim
disallowed.
.
p.
181
PERUZZI, BRENT (CV-04-562)
Claimant failed to establish by a preponderance of the evidence that he
was not guilty of contributory misconduct where he was stabbed at a bar. The
Court found that there was evidence that claimant first shoved the offender while
inside the bar and had been drinking. Claim disallowed.
.
p.
172
PUGH, MARTIN L. (CV-04-506)
Claimant failed to prove by a preponderance of the evidence that he was
not guilty of contributory misconduct when he was run over by a driver of a
vehicle. The Court found that claimant was drinking at the time of the accident.
Claim disallowed. .
p.
166
CRIMINAL CONDUCT
LARGENT, RHONDA S. (CV-05-428)
Claimant fell over a coworker's foot and onto the floor, injuring her
sciatic nerve. W.Va. Code º 14-2A-3 describes "criminally injurious conduct" as
"conduct that occurs or is attempted in this state... which by its nature poses a
substantial threat of personal injury or death and is punishable by fine or
imprisonment." The Court held that the claimant failed to prove by a
preponderance of the evidence that she was the victim of criminally injurious
conduct. Claim disallowed. .
p.
197
MENDOZA, LUIS (CV-05-243)
Claimant was struck by a man with an unknown object and then was
struck with a vehicle while he was lying on the ground. The Court's initial denial
of the award was based on the Claim Investigator's finding that the incident
appeared to be a hit-and-run accident that did not fall within one of the four
exceptions regarding the use of a motor vehicle as "criminally injurious conduct"
under W.Va. Code º 14-2A-3(c).
The evidence adduced at the hearing established
that the claimant was an innocent victim when he was struck by a man with an
unknown object, and this was the assault that led to claimant's injury. .
p.
200
OOTEN, CONNIE MAHON (CV-03-115)
Claimant was walking on the side of the road when she was struck from
behind by a vehicle driven by the offender. The Court's initial denial of an award
was based on a finding that the crime did not fall into any of the four exceptions
that relate to the use of a motor vehicle as "criminally injurious conduct" under
W.Va. Code º 14-2A-3(c). The Court held that since there was no evidence
presented at trial that the claimant was the victim of an accident which was
covered by the statute, the claim must be denied. Claim disallowed.
.
p.
185
STEWART, RITA M. (CV-04-614)
Claimant's decedent was standing behind his vehicle when he was struck
by another vehicle which caused fatal injuries. Claimant was unable to prove by a
preponderance of the evidence that the decedent was not guilty of contributory
misconduct since he had been drinking. Further, there was no evidence that the
offender's actions fell within any of the four exceptions that relate to the use of a
motor vehicle as "criminally injurious conduct" under W.Va. Code º 14-2A-3(c).
Claim disallowed..
p.
183
TAYLOR, CAROLYN S. (CV-05-176) AND MARK ALAN (CV-05-192)
These claims were consolidated into one hearing since both claims arose
from the same incident. Claimants, mother and son, were stopped in their vehicle
when the offender drove her vehicle into the rear of claimant's vehicle. The Court
held that the claimants were not victims of criminally injurious conduct, and there
was no evidence that the offender's actions fell within any of the four exceptions
that relate to the use of a motor vehicle as "criminally injurious conduct" under
W.Va. Code º 14-2A-3(c). Claim disallowed.
.
p.
180
ECONOMIC LOSS
ELLIS, SHERLIE L. (CV-06-048)
Claimant's daughter was killed when she was riding as a passenger of a
vehicle when the driver of her car was racing with another vehicle and lost
control. The Court initially denied compensation due to the claimant's failure to
provide the Court with necessary information. After the hearing, the Court
overturned the denial of compensation and made an award of $14,896.83 to cover
the dependent's economic loss, medical, and funeral expenses. .
p.
196
JEWETT, PAMELA (CV-05-389)
The father of claimant's child died of a fatal gunshot wound. The Court's
initial denial of an award was based on the Claim Investigator's finding that the
claimant had not documented any of dependent's economic loss pursuant to W.Va.
Code º 14-2A-3(d).
The Court held that the child was not a dependent of the
deceased at the time of his death since she was receiving more than half of her
support from the claimant herself, supplemented occasionally by other family
members. Claim disallowed.
.
p.
194
FAILURE TO REPORT CRIME
COLE, ANDREW J. (CV-05-84)
Claimant, who was knocked to the ground and beaten by the offender,
was initially denied an award for failing to report the incident to law enforcement
within seventy-two hours as mandated by W.Va. Code º14-2A-14(b).
The Court
found that claimant established by a preponderance of the evidence that good
cause existed for his failure to report the incident. The evidence adduced at trial
showed that the claimant, who is hearing-impaired, asked his friends to call the
police for him, and the claimant was told it was under investigation. Award of
$1,350.00.
.
p.
174
HODGE, RONNIE LEE (CV-05-561)
Claimant was exiting a bar when he was attacked by the owner, who
struck him with a "slapjack," breaking his nose. In its initial denial of an award of
this claim, the Court found that the crime was not timely reported to law-
enforcement officers as required by W.Va. Code º 14-2A-14(b). Claimant stated
that the police report date was incorrect and that he went to the police station the
morning of the assault. The Court held that the claimant met his burden of proving
that the criminal conduct was timely reported to law enforcement authorities.
Award of $6,720.00. .
p.
192
KNAVEL, CHRISTINE K. (CV-03-331)
Claimant and the alleged offender had an argument and the offender
assaulted her. Since the claimant did not assist in the prosecution of the offender,
the Court initially found that such inaction constituted a failure to cooperate with
law enforcement officials.
At the hearing, the claimant testified that she would
have cooperated with law enforcement officials had charges been brought against
the offender in West Virginia, but that he was charged with crimes in Pennsylvania
and was prosecuted there. Thus, the Court found that the claimant did cooperate with law-enforcement officials to the extent possible, and there was no prosecution
in West Virginia. Claim allowed..
p.
201
ROBINSON, JEREMY B. (CV-06-253)
The claimant was getting ready to leave for a gathering when he was
attacked by the offender, who struck him in the face, knocking him to the ground.
Based on W.Va. Code º 14-2A-14(d), "A judge or commissioner, upon a finding
that the claimant or victim has not fully cooperated with appropriate law-
enforcement agencies, or the claim investigator, may deny a claim... ." In its
initial order, the Court denied an award because the claimant failed to appear for
proceedings against the offender. At the hearing, the claimant testified that he was
unaware of the magistrate court hearing because he never received notice of the
date or time. Based on this evidence, the Court granted an award for payment of
the claimant's unreimbursed allowable expenses. Award of $1,445.53. .
p.
187
SARVER, JOHN R. (CV-06-164)
The claimant was struck in the head by the offender while he was leaving
a bar in South Charleston, Kanawha County. The Court initially denied an award
because the Claim Investigator found that the claimant did not pursue charges
against the alleged offender. Pursuant to W.Va. Code º 14-2A-14(d), "A judge or
commissioner, upon a finding that the claimant or victim has not fully cooperated
with appropriate law-enforcement agencies...may deny a claim, reduce an award of
compensation, or reconsider a claim already approved." The Court reduced the
claimant's award by one-half for the claimant's failure to pursue charges. Award
of $1,275.20. .
pp.
198, 202
INNOCENT VICTIM
CANTRELL, JENIVEE D. (CV-05-613)
Although no award was initially granted because of the claimant's alleged
contributory misconduct, the Court found that there was no indication of any
misconduct on the part of the claimant and she was an innocent victim of crime.
Award of $2,919.44. $2,919.44.
.
p.
190
CHRISTIAN, TOM (CV-04-528)
The Court made an award to the claimant where it was established that
the claimant's father, who had intervened in an argument and was fatally shot, was
an innocent victim of crime. Award of $1,200.00.
.
p.
173
FLYNN, ZENOBIA (CV-05-510)
The claimant's daughter was fatally shot in the head by the offender. The
Court's initial denial of an award was based on the Claim Investigator's finding
that the victim was not an innocent victim of crime. The original Order upheld the
Claim Investigator's finding. The Court concluded that the claimant was not guilty
of contributory misconduct since there was no evidence to suggest that the victim
stole money from the offender or that she used drugs. Award of $6,627.85.
p.
188
GARRETT, MAURYEL AUSHAWN (CV-06-25)
The Court made an award to the claimant where it was established that
the claimant was an innocent victim of crime when he was shot by an unidentified
assailant as he walked out of a nightclub. Award of $21,851.70.
.
p.
184
JACQUES, MARY (CV-03-174)
The evidence established that the actions of the claimant's son, at the time
he was fatally wounded outside a nightclub, did not constitute contributory
misconduct. Therefore, the Court found that he was an innocent victim of crime.
Award of
$6,000.00.
.
p.
159
WHITE, THELMA H. (CV-05-225)
Where claimant's son was fatally shot in the chest and back by the
offender, the Court found that the claimant's son was an innocent victim. Award of
$6,000.00.
.
p.
182
MENTAL HEALTH EXPENSES
COULSON, TAMMY (CV-03-312)
The Court found that claimant's son was the victim of criminally
injurious conduct when he was sexually abused at the residence of the offender.
The claimant submitted into evidence documentation by medical professionals that
criminal conduct did occur, resulting in unreimbursed medical, counseling, and
mileage expenses. Award of $3,666.43. .
p. 161
WORK LOSS
CRUICKSHANK, MARK KEVIN (CV-03-618)
The claimant, a police officer, suffered personal injuries while
dismantling a methamphetamine drug lab. The Court held that the statute of
limitations is tolled until a claimant knows or has reason to know not only of the
existence of his injury but also its relation to criminal conduct. Where the Crime
Victims Compensation Act is silent as to whether West Virginia State Police are
covered, the Court found that the claimant should be considered as a member of a
class of ordinary citizens covered by the Act. The Court awarded claimant for his
unreimbursed work loss and documented medical and pharmaceutical expenses.
Award of $9,968.34.
.
p.
162
DAY, MONICA HOPE (CV-02-441)
The Court awarded work loss to claimant, the mother of a crime victim,
where the mother was unable to return to her job as she worked with her
daughter's alleged offender. The Court found that the claimant established that her
"work loss," as defined in W.Va. Code º 14-2A-3(g),
was related to criminally
injurious conduct. Award of $23,726.03.
.
p.
160
MEEKS, TRICIA ANN (CV-03-573)
Where claimant was injured in a motorcycle accident which rendered her
paraplegic, counsel for the claimant and counsel for the Crime Victims Compensation Fund agreed to settle the claim and award claimant for her
unreimbursed work loss. Award of $11,940.48. .
p.
171
SHORT, RAYMOND E. (CV-05-643)
While claimant was attending the funeral of his mother's husband,
members of the deceased's side of the family suddenly attacked him and his sister.
The Court initially denied an award based on the vagueness of the events leading
up to the assault. Based on the testimony at the hearing, the Court found that the
claimant was free from any contributory misconduct and was not involved in an
altercation, but was attempting to defend himself and his family. Award of
$4,122.16 for medical bills and work loss.
.
p.
190