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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 10, 2012
JOYCE YIRBERG
VS.
DIVISION OF HIGHWAYS
(CC-09-0322)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant brought this action for the loss of a Border Collie, which she alleges occurred as a result of Respondent’s negligent maintenance of a boundary fence located along Interstate 64. Claimant’s residence, located at 584 Fairwood Road, in Huntington, Cabell County, abuts Respondent’s boundary fence. Claimant asserts that the boundary fence should have been maintained so as to prevent her chattel’s escape onto Interstate 64. The Court is of the opinion to award the claim for the reasons more fully stated below.
      Claimant purchased her property in 1983 in large part because of a chainlink fence that surrounded the back yard. This fence was set within inches of an existing Division of Highways boundary fence. Maintenance of the fence line was never an issue for Claimant. Both parties testified that the Respondent maintained the fence line in immaculate condition since the purchase of the property in 1983.
      Claimant testified that at some point she became concerned about the rising occurrence of intruders coming onto her property after crossing nearby Interstate 64. In response, Claimant erected a privacy fence within six inches of her original chainlink fence. The privacy fence is six feet tall and was only placed on the property to keep unwanted intruders from climbing the fence and crossing onto her property. Claimant felt assured that maintenance of both of the chainlink fences behind the newly erected privacy fence would continue, and that her beloved Border Collies would remain safely within the confines of her property.
      In May 2009, as Claimant peered through her kitchen window at her Border Collies roaming in the back yard, she saw that one collie had escaped through all three fences and onto Interstate 64 where it was struck and killed. The Border Collie was able to escape because both chainlink fences were in such a state of disrepair that there were visible gaping holes. Specifically, Claimant asserts that weeds and vines grew too thick along the fences and caused the hole to occur. Respondent admits to no longer maintaining the fence line after a new mowing policy was put into place in 2008 requiring Respondent to mow one deck length past the ditch line. However, Claimant maintains that she relied on Respondent’s maintenance of both fences, and that the sole reason for her Border Collie’s death was the negligent maintenance of the chainlink fences.
      Claimant offered testimony to establish that the value of her Border Collie (a female Blue Merle which had almost finished her championship through the American Kennel Club) was approximately $2,700.00 to $3,000.00. The cost to repair the fencing was in the amount of $475.00.
      Respondent argues that the boundary fence is designed to do precisely that–serve as a boundary marker. Respondent does not accept responsibility for negligent maintenance of a fence that was erected only to serve as a reminder for employees. Respondent’s witness testified that these fences were certainly not designed to hold animals. Respondent next contends that Claimant is ultimately responsible for the maintenance of her own property, despite her reliance on the occasions that Respondent maintained the fence line. Respondent argues that if Claimant had monitored her property more frequently she would have noticed the holes years prior to the incident; therefore, Respondent should not be responsible for Claimant’s loss of her dog or damages to her fence.
      The Court disagrees in part. In instances where it has been found that the State had a moral obligation to pay claimants, the Court has awarded damages based on that obligation. See McDowell County Bd. of Education v. West Virginia Bd. of Education, CC-84-128 (1984).
      In the instant case, it is generally the duty of a landowner to maintain his or her own property. However, when a State agency undertakes that maintenance on a continuous basis, and the discontinuance of that maintenance occurs causing the landowner to suffer damages, the State has a moral obligation to pay for the damages created based on that reliance. Respondent maintained the property from approximately1983 until the privacy fence was erected. Claimant erected the fence without regard to maintenance of the chainlink fences behind her fences based on Respondent’s conduct. However, the Court is also of the opinion that Claimant bears some responsibility for her loss since she failed to adequately check and maintain her own fences with sufficient care to notice the disrepair which occurred due to the growth of the weeds and vines between the fences.
      Accordingly, the Court is of the opinion to make an award to Claimant in the amount of $3,175.00 reduced by Claimant’s comparative negligence which the Court determined to be thirty percent (30%) for an award of $2,222.50.
      Award of $2,222.50.
Summary:
     


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