| Volume Number: 30
Category(s): STREETS AND HIGHWAYS, FALLING ROCKS AND ROCKS |
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| Opinion Issued December 18, 2014 | |
| MICHAEL BAUMANN AND MELODY BAUMANN | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-13-0175) | |
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Claimants appeared pro se. Francis M. Curnutte III, Attorney at Law, for Respondent. |
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| PER CURIAM:
Claimants, Michael and Melody Baumann, brought this action to recover damages which occurred when their 2012 Toyota Prius V was struck by concrete while traveling along Spring Valley Road near Huntington, Cabell County. Spring Valley Road and the I-64 overpass at issue in this claim are public roads maintained by Respondent. The Court is of the opinion to grant an award in this claim for reasons more fully stated below. The facts giving rise to this claim occurred on March 9, 2013, at approximately 12:10 p.m. Claimant, Melody Baumann (the driver on the date of the incident), stated that while traveling the speed limit along Spring Valley Road, while en route to the VA hospital, a large piece of concrete broke away from the I-64 overpass and struck the vehicle’s windshield. Claimant testified that there were no visible warning signs present which would have urged the Claimant to use caution in the area. Claimant also stated that the weather was not inclement. As a result of this incident, Claimants’ vehicle sustained damage in the amount of $500.00 as evidenced by an invoice provided to the Court along with Claimants’ Notice of Claim. Claimants carried a $500.00 collision insurance deductible amount on the date of the incident. Claimants argue that Respondent was negligent for its failure to prevent the concrete from crumbling and falling to the traveling public below, and that such an event was reasonably foreseeable. Respondent argues that it had neither actual nor constructive notice of the condition present on I-64 on the date in question. Therefore, Respondent maintains that it cannot be held liable in this claim. 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)). A party’s precise knowledge or state of mind concerning a situation often cannot be determined by direct evidence, but must instead be shown indirectly by circumstantial evidence. In the instant case, the Court is of the opinion that Respondent did have constructive notice of the situation. It is indeed reasonably foreseeable that concrete overpasses, when situated over other state-owned roadways, will eventually pose a risk of danger to the public. This is not like rock fall claims in which this Court rarely grants awards because rock falls often occur without any prior actual or constructive notice of the rock formation conditions due to the topography of West Virginia. The situation in this case is different because when constructing an overpass safety precautions can be provided to prevent the inevitable risk it poses to the public. Likewise, the overpass should be regularly inspected. Therefore, the Court finds that an award is warranted in this case in the amount of the Claimants’ deductible. Based on the foregoing, the Court is of the opinion to grant an award in Claimants’ claim. Award $500.00. |
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| Summary: |
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