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West Virginia Court of Claims

Volume Number: 29
Category(s): FALLING ROCKS AND ROCKS
Opinion Issued April 5, 2013
ELAINE FLETCHER
VS.
DIVISION OF HIGHWAYS
(CC-11-0674)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant, Elaine Fletcher, brought this action for vehicle damage which occurred when her 2003 Chevrolet Cavalier struck a rock while she was traveling along U.S. Route 50 near Parkersburg, Wood County. U.S. Route 50 is a public road maintained by Respondent. The Court is of the opinion to deny this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 9:00 a.m. on November 9, 2011. U.S. Route 50 is a four-lane highway spanning the distance between Parkersburg and Clarksburg. Claimant testified that while transporting her friends to a doctor’s appointment in Clarksburg, she encountered a large rock in the roadway. Claimant stated that she could not avoid the rock because a large truck was traveling next to her in the passing lane. The conditions on the date of the incident were clear and dry according to Claimant. As a result of its contact with the rock, Claimant’s vehicle sustained damage to its undercarriage in the amount of $3,115.14. Claimant had collision automobile insurance with a $500.00 deductible amount at the time of the incident.
      The position of Respondent is that it did not have actual or constructive notice of the rock along U.S. Route 50 on the date of the 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 v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to hold the Respondent liable for road defects of this type, the Claimant must prove that the 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).
      In the instant case, the Court is of the opinion that Respondent did not have actual or constructive notice of the rock which Claimant’s vehicle struck. The Court is satisfied that Respondent did not have knowledge of the condition that led to Claimant’s damage, and Respondent did not have time to correct the situation before the Claimant’s vehicle struck the rock. Therefore, the Court finds that Respondent was not negligent.
      Based on the foregoing, the Court is of the opinion to, and does hereby, deny this claim.
      Claim disallowed.
Summary:
     


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