Palmer v. Department of Highways

PER CURIAM: On February 1, 1988 claimant was traveling south on Route 2, in his 1978 Ford Fairmont. The vehicle struck a rock and incurred damage. Claimant seeks $650.00 for the damage. Claimant testified that the location of his accident was approximately two miles from Wilson Park. The rock, which was a "... good bit larger than a bushel basket," had come from [167] the hillside. It was almost in the center of the double lane of the highway. It was dark and raining at the time of the incident and he was traveling at a speed of approximately 40-45 miles per hour. Apparently, the rock had fallen only a minute or two before his vehicle struck the rock. There is a "falling rock" sign at the location of the accident. He paid $600.00 for the automobile a month and a half prior to the accident. He admitted that he had observed rocks in that area on previous occasions. He travels the route approximately five times a week. The State is neither an insurer nor a guarantor of the safety of motorists on its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). The Court has held on numerous occasions that the unexpected falling of rocks onto a highway without a positive showing that respondent knew or should have known of a dangerous condition is insufficient to justify an award. Hammond vs. Dept. of Highways, 11 Ct.Cl 234 (1977), Adkins vs. Dept. of Highways, 13 Ct.Cl. 307 (1980) and Hatfield vs. Dept. of Highways, 15 Ct.Cl. 168 (1984). As no evidence was presented to establish notice of the rock in the road, the Court must deny the claim. Claim disallowed.