Coburn v. Department of Highways

PER CURIAM: On March 22, 1985, at approximately 3:30 or 4:00 p.m. claimant's vehicle, a 1984 Chevette, ran over a rock which had rolled out into the road. Claimant's son, driver of the vehicle, was travelling to his home from Marshall University on State Route 10 in Lincoln County. The vehicle sustained damage in the amount of $166.80. The claimant, Arthur Coburn, had originally filed this claim in his own name and that of his son, Dwight Coburn. However, the record reflects that Arthur Coburn is the titled owner of the vehicle. The Court, upon Dwight Coburn's agreement, amended the style of the claim to dismiss Dwight Coburn as a party claimant. Claimant's son testified that he was coming out of a curve and failed to see the rock. He travelled that route three or four times weekly, but stated that it was not a rockslide prone area. He estimated the rock to be the size of a basketball. This Court has held that the unexplained falling of a rock or boulder into a highway without a positive showing that respondent knew or should have known of a dangerous condition posing injury to person or property is insufficient to justify an award. Hammond vs. Department of Highways, 11 Ct.Cl. 234 (1977). There was no evidence in this case of such notice to or knowledge on the part of respondent. Therefore, the Court must deny the claim. Claim disallowed.