Dunn v. Division of Highways

PER CURIAM: Claimant brought this action to recover damages to her 1984 Chevrolet automobile when the vehicle struck a large rock on Route 2, between Glendale and McMechen, West [164] Virginia. Claimant’s automobile sustained damages to the oil pan and she incurred towing expenses for damages in the amount of $882.51. Claimant testified that she did not see the rock in the road until her vehicle struck the rock and she saw small particles rolling from under the back of her vehicle. She was driving approximately 40 to 45 miles per hour. Claimant alleges that respondent should have a barrier on the berm to prevent boulders which fall from the hillside from rolling onto the highway. Christopher Minor, Assistant Maintenance Superintendent of Marshall County, testified that respondent patrols this section of Route 2, as it is a known area for falling rocks. There is a small shoulder and ditch line of the right side proceeding north, and claimant was in the northbound lane. There is a falling rock sign on the northbound lane approximately a mile and a half to a mile and three-quarters section of Route 2 is not considered an area for frequent rock falls, but such rock falls do occur. He further testified that this particular section of Route 2 is patrolled frequently as it is a known area for rock falls. In fact respondent testified that Division of Highways employees had driven 600 miles patrolling this 1 A mile section of Route 2 during the 24 hour period in which claimant’s accident occurred. This area from the end of Glendale to the city limits of McMechen has been a known rock fall area since 1941. The Court is of the opinion that the respondent has failed to take appropriate remedial action to prevent rocks from falling from the hillside and rolling onto Route 2 and this known hazard has existed for more than 50 years. The Court has determined that respondent has not protected the traveling public from this hazard, but rather has chosen to clean up the rocks after they fall rather than try to keep them from falling. As a result, respondent is liable to the claimant for the damages to her vehicle. Accordingly, the Court makes an award to the claimant in the amount of $882.51. Award of $882.51.