|Volume Number: 29
Category(s): TREES AND TIMBER
|Opinion Issued March 23, 2012|
|LUTHER DEMPSEY DBA DEMPSEY|
|DIVISION OF HIGHWAYS|
Claimants appeared pro se.
Travis E. Ellison III, Attorney at Law, for Respondent.
| PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 2011 Chevrolet Silverado was struck by a falling tree along County Route 57, also designated as Collins Ferry Road, near Morgantown, Monongalia County. County Route 57 is a road maintained by Respondent. The Court is of the opinion to award this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred at approximately 2:00 p.m. on April 4, 2011. County Route 57 is a two-lane paved road with painted edge lines. Claimant testified that while driving in the southbound lane just past the intersection with Aspen Street, a tree fell and hit the cab of his truck. Claimant testified that the tree was large and was noticeably rotten. Due to the force with which the tree struck Claimant’s truck cab, the estimated cost of repair is in the amount of $887.00. Claimant carried liability insurance only on his vehicle at the time of the incident.
The position of Respondent is that it did not have the duty to maintain the right of way in question. Respondent claims that responsibility lies with the City of Morgantown. As support for its position, Respondent cites a 1982 inter-agency memorandum sent to all district engineers and county superintendents stating that “[i]n the absence of a formal agreement to the contrary, no maintenance on curbs and sidewalks will be permitted.” However, the Court is not persuaded that the city was responsible in this instance.
Respondent has not provided evidence that the City of Morgantown was a recipient of the 1982 memorandum of understanding or that they made any kind of collateral agreement with Respondent to assume maintenance of the Respondent’s right of way inside of city limits. This Court has denied claims in the past involving damage caused by curbs and other areas claimed to be maintained by a municipality. See Hash v. Division of Highways, 27 Ct. Cl. 253 (2007). However, the Court is not constrained by these decisions when the facts of a claim suggest a flagrant disregard for an open and obvious risk along the roadway.
In Fields v. Division of Highways, 28 Ct. Cl. (2007) this Court held that the State can be liable for duties not undertaken despite the existence of an agreement between themselves and another entity holding the State harmless for not performing those duties. In Fields, Claimant struck a manhole cover in the travel portion of the roadway. Respondent provided the Court with an agreement in which the city agreed to maintain manhole covers as well as curbs. Respondent testified that since the city agreed to maintain manhole covers, and that it did not have the duty to remove a manhole cover from the road–even if it was an open and obvious danger to anyone traveling along the roadway. This Court stated that “the Respondent bears the [ultimate] responsibility for the maintenance of the roads. The Respondent took this road under its system. If there is another entity such as the City of Williamson that, by agreement, assumes this responsibility, then the Respondent has the right to seek reimbursement from the City of Williamson for the damages arising from this claim.” In the instant case, Respondent provides a memorandum that, although very old, does suggest that municipalities have a duty to maintain the curbs within city limits. However, Respondent has not provided the Court with proof of the city’s assumption of maintenance responsibilities. Even if Respondent can show that there was an agreement with the city, the right of way and the tree located on it was in such a poor condition that Respondent had an affirmative duty to correct the open and obvious risk posed by it. If Respondent had corrected the condition of the right of way, it could have sought indemnification from the City of Morgantown if such an agreement actually exists.
It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $887.00.
Award of $887.00.
OPINION ISSUED MARCH 23, 2012
IKON MANAGEMENT SERVICES
WEST VIRGINIA CORRECTIONAL INDUSTRIES
Claimant appeared pro se.
Charles P. Houdyschell Jr., Senior Assistant Attorney General, appeared for Respondent.
This claim was submitted for decision based upon the allegations in the Notice of Claim and Respondent's Answer.
Claimant seeks to recover $118,230.00 for services rendered to Respondent and documented by seven unpaid invoices sent between June and December 2011.
In its Answer, Respondent admits the validity of the claim as well as the amount with respect to the services rendered in the sum of $118,230.00, and states that there were sufficient funds expired in the appropriate fiscal year from which the invoice could have been paid. Respondent states that these payments were not made due to changes in the Quick Copy Operation and that the Division of Purchasing would not permit an additional extension.
It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $118,230.00.
Award of $118,230.00.