Ashley v. Department of Highways

PER CURIAM: On February 9, 1982, Imogene Jean Ashley was operating a 1976 Oldsmobile on West Virginia Route 119 proceeding south toward Charleston, West Virginia. It was approximately 5:30 a.m. on a misty, dark morning. Mrs. Ashley had just picked up her rider, and the two of them were on their way to work when she came upon rocks in the road. She attempted to miss the rocks by straddling a large one, but, in so doing, damaged the underside of the automobile. This claim was filed by Imogene Jean Ashley but the Court amended the style of the claim to correspond with the name of the registered owner. Damages to the vehicle were in the amount of $227.43. Mrs. Ashley testified that she had observed rock slides in this area of State Route 119 on prior occasions. She further testified that two employees of the respondent came upon the scene shortly after the accident. They informed her that they had just received a call that the rock fall had occurred. Thomas Aubrey, a claims investigator for the respondent, testified that his investigation revealed that a call had been received in the office of the Kanawha County Sheriff at about 5:30 a.m. informing the respondent of the rock fall on State Route 119. There is no evidence that the respondent knew or should have known of the existence of an unusually dangerous condition, and it is apparent from the evidence that the rocks had fallen just prior to the accident. From the record there is no showing of negligence on the part of the respondent, and accordingly, the Court disallows this claim. See Bolyard v. Department of Highways, 12 Ct.Cl. 344 (1979). Claim disallowed.