Hersman v. Division of Highways

PER CURIAM: [279] Claimant brought this action for vehicle damage sustained when his vehicle struck a rock while he was traveling southbound on U. S. Route 219 near Ronceverte. At this location, U. S. Route 219 is maintained by respondent in Greenbrier 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 October 11, 1999, at approximately 9:30 p.m. Claimant was traveling on U. S. 219 in his 1990 Ford Mustang at a speed of about fifty miles per hour. He was proceeding from Fairlea to his residence in Organ Cave. Claimant’s girlfriend, Candy Hunter, was following him in another vehicle from a distance of about three car lengths. At this location, U. S. Route 219 is a primary, two-lane road with double yellow lines indicating the center of the road surface and white lines indicating the edges the pavement. A ditch is located on the side of the road about six feet from a fifteen foot embankment and a hillside about three hundred feet high. As claimant drove his vehicle around a sharp turn in the road, he observed a rock about thirty feet in front of his vehicle on the road surface. Claimant tried to maneuver his vehicle to the side of the road in order to avoid the rock, but the passenger side of the vehicle struck the rock. Ms. Hunter was able to drive her vehicle around the rock. Claimant testified that he did not observe any “Falling Rock” signs along the road. About twenty minutes before this incident, he had traveled the road in the opposite direction and he did not observe any rocks on the road surface at that time. The impact with the rock burst the front passenger side tire, bent the rim, necessitated alignment of the vehicle as well as damaging the passenger side of the vehicle. Since claimant was insured only under a liability motor vehicle insurance policy, he was responsible for the sustained damage in the amount of $790.84. The position of respondent is that it did not have notice of a rock fall occurring on U. S. Route 219 on this date. According to Crew Supervisor II Keith Hollinghead, this area is not known as a rockfall area. In fact, prior to this incident respondent had no records of any rock falls occurring in this particular area of U.S. Route 219. The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects, claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986). However, the Court has consistently held that the unexplained presence of a rock on a road surface is insufficient to justify an award. Mitchell vs. Division of Highways, 21 Ct. Cl. 91 (1996). In this claim, the evidence failed to establish that respondent had not taken adequate measures to assure the safety of the traveling public while traveling on U. S. Route 219 in Greenbrier County. The fact that claimant had been on the road twenty [280] minutes before the incident and did not observe a rock in the road indicates that respondent did not have notice of the rock on the road. While the court is sympathetic to claimant’s plight, the fact remains that there is no evidence of negligence on the part of respondent by 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 deny this claim. Claim disallowed.