Mitchell v. Division of Highways

PER CURIAM: The claimants, DarrellD. Mitchell andMarilynE. Mitchell, seek an award of $352.92 from the respondent, Division of Highways, for damage to their vehicle. The damage occurred on January 1, 1996, at approximately 1:00 a.m., while the claimants were traveling east on Piedmont Road in Kanawha County. During the drive, Mr. Mitchell was proceeding thirty-five miles per hour when his vehicle, a 1986 Toyota Camry, struck a rock in the road. According to Mr. Mitchell, foggy conditions restricted his sight distance, and he was unable to see the rock until his vehicle was within ten feet of it. As a result of the collision, the vehicle sustained transmission damage. Laura Ann Conley-Rinehart, an engineer and maintenance assistance for the respondent, testified that her responsibilities include general maintenance in the area where the claimants’ accident occurred. According to Ms. Conley -Rinehart, the rock face adjacent to Piedmont Road was designed to prevent rocks from falling onto the roadway. In support of Ms. Conley-Rinehart’s testimony, the respondent offered three photographs into evidence which depicted the accident location. This Court has consistently held in several claims that the unexplained falling of a rock or boulder onto a highway, without a positive showing that the respondent knew or should have known of a dangerous condition posing a threat of injury to person or property, is insufficient to justify an award. Coburn v. Dept. of Highways, 16 Ct. Cl. 68 (1986); Hatfield v. Dept. of Highways, 15 Ct. Cl. 168 (1984); and Hammond v. Dept. of Highways, 11 Ct. Cl. 234 (1977). The evidence presented in this claim established that the hillside adjacent to Piedmont Road was designed to minimize the risk of rocks falling on to the road. Moreover, the testimony of Ms. Conley-Rinehart indicated that rocks rarely fall onto the road. Therefore, on the basis of the evidence and testimony presented in this claim, the Court is of the opinion that the claimant has not established any negligence on behalf of the respondent. Accordingly, this claim is denied. [92] Claim disallowed.