Ashworth v. Division of Highways

PER CURIAM: Claimants own a house and property located on Austin Drive, formally U.S. Route 60. On July 31, 1992, claimants’ property sustained flood damage when a ditch on the opposite side of Austin Drive overflowed across the road, down their driveway, and into their family room. Austin Drive is a road owned and maintained by respondent. Both claimants lost work as a result of having to clean their family room after the flood; personal property was damaged by the water; and, claimants incurred costs for cleaning supplies and for renting equipment to clean the flooded area of their home. The damages totaled $1,542.28. [190] Claimant Sandra K. Ashworth testified that their property had experienced flooding prior to the flood which occurred in July 1992. She had noticed that the drainage ditch was blocked causing water to flow towards claimants’ property. She had informed respondent of the problem with the ditch and one of respondent’s employees had told her that a blocked culvert would be corrected. Claimant Danny L. Ashworth testified that the driveway to his home has a grate across the driveway at the entrance to the family room. This drainage structure is sufficient to carry off water and prevent flooding under normal circumstances. Paul J. Lyttle, Assistant County Supervisor in Kanawha County for respondent, testified that he was aware of the flash flood on Austin Drive on July 31, 1992, as there had been extremely heavy downpours on that date. He was at the claimants’ house during the flood and directed that the ditch which was blocked be unclogged. The property owner on the opposite side of Austin Drive had apparently installed two water tanks to form a culvert under a driveway. These water tanks had separated and were partially clogged. Respondent’s employee, Joseph L. Lilly, testified that he was aware that a culvert under a driveway adjacent to Austin Drive was blocked, but he was unable to clean out the pipe as a particular high-pressure truck was needed and this truck was unavailable at the time. In fact, when the high pressure tank was used in the drain, a large ball about the size of a basketball was removed and it was this object that caused the drain to be clogged. The Court is of the opinion that respondent was negligent in the maintenance of the culvert on Austin Drive and that this negligence caused the flooding which occurred on claimants’ property in July 1992. Respondent was aware of the clogged culvert and that this condition could cause the ditch to overflow resulting in flooding in the immediate area. Although there was an unusual rainfall on the date of the flood, the Court is of the opinion that the flooding to claimants’ house would not have occurred had the culvert been properly maintained. Both claimants suffered work loss which was calculated at $550.00. The property damage and cleaning expenses were in the amount of $992.28. Accordingly, the Court makes an award to the claimants in the amount of $1,542.28. Award of $1,542.28.