| Volume Number: 30
Category(s): FALLING ROCKS AND ROCKS |
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| Opinion Issued May 23, 2014 | |
| CHARLES F. EDDY | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-12-0511) | |
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Claimant appeared pro se. C. Brian Matko, Attorney at Law, for Respondent. |
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| PER CURIAM:
Claimant, Charles Eddy, brought this action for vehicle damage which occurred when his 2005 Chevrolet Silverado struck a rock while traveling along W. Va. Route 2 (“Route 2") near Sistersville, Tyler County. Route 2 is a road maintained by Respondent. The Court is of the opinion to deny the claim for the reasons more fully stated below. The facts giving rise to this claim occurred on September 18, 2012, at approximately 9:00 a.m. Claimant testified that while traveling along Route 2 towards his destination in New Martinsville, Wetzel County, he encountered a rock in the travel portion of the roadway. Claimant estimates the size of the rock to be approximately two and half feet high. Claimant did not provide the Court with photographs. Claimant stated that he did not have time to avert the object or stop; therefore, his vehicle made contact with the rock. Claimant stated that he drove this road frequently but was not aware of the potential for rocks to fall from the side of the roadway and onto the road. The road conditions on the date of the incident were clear and dry. As a result of this incident, Claimant’s vehicle sustained damage to it’s entire undercarriage in the amount of $9,000.00. Claimant carried a $250.00 collision insurance deductible amount on the date of the incident. The position of the Respondent is that it did not have actual or constructive notice of the condition on Route 2 at the site of Claimant’s accident for the date in question. Respondent’s witness testified that there are rock fall warning signs placed along this stretch of road. Therefore, Respondent also argues that Claimant assumed the risk of coming into contact with a rock. 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 respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. 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 in the travel portion of Route 2 on the date of the incident. Therefore, the Court cannot recommend an award in this claim absent some proof that Respondent was previously aware and took no action to warn the traveling public or correct the condition. Respondent is not liable in this claim. In view of the foregoing, the Court is of the opinion to, and does hereby, deny this claim. Claim disallowed. |
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| Summary: |
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