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West Virginia Court of Claims

Volume Number: 30
Category(s): FALLING ROCKS AND ROCKS
Opinion Issued July 3, 2013
KEVIN HERBAUGH AND DEBBIE HERBAUGH
VS.
DIVISION OF HIGHWAYS
(CC-12-0338)
     Claimants appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimants, Kevin and Debbie Herbaugh, brought this action to recover damages which occurred when their 2010 Nissan Xterra struck rocks along Harrell Road near Lookout, Fayette County. Harrell Road is a public road maintained by Respondent. The Court is of the opinion to grant an award in this claim for reasons more fully stated below.
      This claim arose from three separate incidents in which Claimants were traveling along Harrell Road (the only means of ingress and egress from their residence) when their tire suddenly became deflated. Upon further inspection, Claimants determined that the cause of their flat tire was the presence of large, sharp protruding limestone rock, also known as “crusher run,” along the roadway. Claimants maintain that the presence of this large stone is the cause of the damage and that smaller rocks should be used along the roadway. Claimants stated that in all years previous, Respondent used sandstone along the roadway and that their tires have never received punctures until Respondent introduced the large limestone. As a result of these separate incidents, Claimants were forced to replace their tires which totaled $989.04. However, Claimants carried collision insurance with a $500.00 deductible at the time of the incident. Therefore, Claimants may recover the full amount of $178.03 for two tires damaged in two different incidents and $500.00 for one of the incidents.
      Respondent’s witness, Danny Hypes, admitted that he was notified of the situation and that his inspection revealed that indeed sharp limestone rock was present along the roadway. Mr. Hypes further stated that the Respondent mandates the use of the heavier crusher run in order to preserve the integrity of the roadway. He testified that sandstone dissolves faster and is less cost-effective. Mr. Hypes stated also that the use of crusher run would be suitable if Respondent was able to secure a roller to pack the material after it is laid 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 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, the Court is of the opinion that Respondent had, at the least, constructive notice of risk posed by the use of large crusher run limestone. The Court notes that Danny Hypes, as administrator for Respondent in Fayette County, did everything that he could do given the tools that he had at his disposal. The Court is aware that there just simply are not enough rollers to go around. Nevertheless, given Mr. Hypes’s personal observations and admission that a roller should be used in these situations leads the Court to conclude that Respondent was negligent. Thus, Claimants may make a recovery for the damage to their vehicle.
      It is the opinion of the Court of Claims that Claimants should be awarded the sum of $856.06.
      Award of $856.06.
     
     
Summary:
     


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