Justice v. Division of Highways

PER CURIAM: [181] Claimant brought this action for vehicle damage which occurred when his vehicle was struck by a rock while a friend was driving his vehicle on W.Va. Route 10 from Man towards Logan. W.Va. Route 10 at this location is maintained by respondent in Logan County. The Court is of the opinion to deny this claim for the reasons more fully set forth below. The incident giving rise to this claim occurred on December 8, 1998, at approximately 5:00 p.m. At dusk on the rainy evening in question, claimant’s friend, Linda Kaye Adkins, proceeded on W.Va. Route 10 at a speed of about twenty miles per hour in a twenty-five per hour speed zone in claimant’s 1997 Chevrolet Cavalier, from her place of employment in Man to her residence in Logan. Ms. Adkins travels this portion of road on a regular basis and was aware that it was a known rock fall area. As Ms. Adkins operated the vehicle on an uphill portion of the road close to the hillside, and before what she described as a sharp “S” shaped curve in the road, the vehicle was suddenly struck on the right side by a rock that had fallen from the right side of the road. Afterwards, Ms. Adkins stopped along the road at a safe location and inspected the vehicle. Fortunately, Ms. Adkins did not sustain a personal injury, but the right front area of the vehicle sustained damage. Claimant’s daughter, Leigh Ann Justice, then contacted the Man Police Department regarding the incident and an officer investigated the incident and filed a police report. The damages sustained to claimant’s vehicle were estimated in the amount of $754.99, however, claimant’s motor vehicle insurance policy has a deductible feature of $500.00 and any recovery would be limited to that amount. See Sommerville, et al. vs. Div. of Highways, 18 Ct. Cl. 110 (1991). The position of respondent was that it had neither actual nor constructive notice for this rock fall incident on W.Va. Route 10. According to respondent, this portion of road is a known rock fall area and is clearly marked by “falling rock” road signs. Before this incident, respondent denied having any notice of the condition of W. Va. Route 10. The Court has consistently held that in claims of this nature, without a positive showing that respondent had actual or constructive notice of a dangerous condition, such as falling rocks and rock debris, posing a threat of injury to property is insufficient to justify an award. Mitchell vs. Division of Highways, 21 Ct. Cl. 91 (1996); Hammond vs. Division of Highways, 11 Ct. Cl. 234 (1977). In order to establish liability on behalf of respondent, the evidence must establish that respondent had notice of the dangerous condition posing the threat of injury to property and a reasonable time to take suitable action to protect motorists. Alkire vs. Division of Highways, 21 Ct. Cl. 179 (1997). The evidence adduced at the March 23, 2000, hearing failed to establish that respondent had notice of the road condition and did not take measures to help assure the safety of the traveling public while traveling on W.Va. Route 10 in Logan County. In addition, Ms. Adkins knew that this area has a propensity for rock falls. [182] While the Court is sympathetic to claimant’s plight, the fact remains that there is insufficient evidence of negligence upon which to base an award. In accordance with the findings of fact and conclusions of law stated herein above, the Court is of the opinion to and does hereby deny this claim. Claim disallowed.