|Volume Number: 29
|Opinion Issued March 23, 2012|
|DIVISION OF HIGHWAYS|
Shannon M. Bland, Attorney at Law, for Claimant
Travis E. Ellison III, Attorney at Law, for Respondent.
| MCCARTHY, JUDGE:
Claimant, Robert Booker, brought this action for medical bills and pain and suffering for injuries sustained while attempting to traverse the Dunbar Bridge on foot. The Dunbar Bridge is located between South Charleston and Dunbar in Kanawha County, and is a public road maintained by Respondent. The Court believes that Claimant should receive an award in this claim for reasons more fully stated below.
The incident giving rise to this claim occurred at approximately 10:45 p.m. on November 7, 2008. On the date in question, the Claimant had spent the entire day with a close friend, Ms. Herbert. Ms. Herbert testified that the Claimant arrived at her house at approximately 11:30 a.m. to watch television and “visit” and remained at her house until she transported him to the bus stop located under the Dunbar Bridge at approximately 10:30 p.m. The Claimant testified that upon exiting Ms. Herbert’s vehicle he proceeded on foot up the stairway to the top of the Dunbar Bridge. As he turned the corner to enter the sidewalk area, the Claimant lost his footing on a damaged section of the sidewalk. The Claimant then fell from the sidewalk onto the travel portion of the roadway where he was narrowly missed by oncoming traffic. Due to the severity of his fall, the Claimant sustained several injuries, some of which are permanent, to his back and hip as well as his left arm. The Claimant has also undergone extensive physical therapy for his injuries. The Claimant’s medical bills total $7,983.35.
Respondent admits that the sidewalk area of the Dunbar Bridge is its responsibility, and does not dispute that it had actual notice of the condition prior to the incident. The position of the Respondent is that the Claimant also had actual notice of the condition of the sidewalk, before the incident because he routinely traversed it on his many visits to Ms. Herbert’s residence. Therefore, Respondent maintains that any award to the Claimant should be decreased dollar for dollar based on the Claimant’s comparative fault.
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). Therefore, in order to hold Respondent liable for road defects of this type, Claimant must prove that Respondent had actual or constructive notice of the defect, and a reasonable amount of time to take corrective action. Pritt v. Dep’t of Highways, 16 Ct. Cl. 8 (1985); Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986). “Actual notice” is based on direct evidence known by a person or entity while “constructive notice” is defined as "[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of . . .; notice presumed by law to have been acquired by a person and thus imputed to that person." Mace v. Ford Motor Co., 221 W. Va. 198, 653 S.E.2d 660 (2007) (citing Black’s Law Dictionary at 1090 (8th Ed. 2004)).
In the instant case, even without the Respondent’s admission that it had notice of the condition, the Court is of the opinion that Respondent had actual notice of the deplorable condition of the bridge’s sidewalk. This condition was particularly dangerous due to the size of the condition and exposed rebar. Respondent’s witness, Kevin Quinlan, an investigator for Respondent with many years of experience testified that he “. . . traverse[s] that road in the course of [his] investigations of other cases, and because of this case [he] drove across that road several times . . .” Furthermore, pictures taken two years after the date of the incident by Respondent show that this dangerous condition has still not been corrected. Based on these facts, the Court concludes that Respondent did have actual notice of the dangerous condition that caused Mr. Booker’s injuries; therefore, Respondent was negligent.
Despite Respondent’s own negligence, the Court is also of the opinion that Mr. Booker at least knew or should have known about the dangerous condition of the sidewalk based on the frequency that he crossed the Dunbar Bridge. In a comparative negligence jurisdiction such as West Virginia, the claimant’s negligence may reduce or bar recovery in a claim. Based on the above, the Court finds that the Claimant’s negligence equals twenty-percent (35%) of his loss. Since the negligence of the Claimant is not greater than or equal to the negligence of the Respondent, the Claimant may recover eighty-percent (65%) of the loss sustained. Therefore, the Court agrees that an award of $10,378.03 is a fair and reasonable amount to compensate Mr. Booker for his injuries.
It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $10,378.03.
Award of $10,378.03.