
    
      Opinion issued November 10, 1980
    
    REBA C. DUNLAP vs. DEPARTMENT OF HIHWAYS
    (CC-79-414)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

This claim was filed by the claimant against the respondent for damages sustained by her automobile. On August 6, 1979, the claimant was driving her 1975 Chrysler automobile westerly on West Virginia Route 21/38, also known as Fisher Ridge, from the Goldtown exit of Interstate 77. The road was dry. It was about 6:00 p.m. and still light. As she proceeded downhill, an oncoming vehicle was proceeding up the hill at a fast rate of speed.

The claimant testified that the road was narrow and the oncoming vehicle forced her off the road onto the berm. At the point of the accident, the berm was about six to eight inches below the road surface. The right front and right rear wheels of claimant’s automobile went off the roadway and lodged in a ditch in the berm adjacent to the paved portion of the road. It was impossible for the claimant to move her automobile. The two right tires were destroyed and the bottom of the automobile rested on the pavement. Damages sustained included wrecker service, $24.00; two tires, $147.66; front end alignment, $15.88; hubcap replacement, $30.90, for a total of $218.44.

Ray Casto, claims investigator for the respondent, testified that the road at the point of the accident was a one-lane road fourteen feet wide and that there was a ditch on both sides.

The berm or shoulder of a highway must be maintained in a reasonably safe condition for use when the occasion requires, and liability may insue when a motorist is forced onto the berm in an emergency or otherwise necessarily uses the berm of the highway. See Sweda v. Dept. of Highways, 13 Ct.Cl. 249 (1980).

As previously stated, this accident occurred on August 6, 1979. Pictures taken at the scene of the accident on August 28, 1979, by Ray Casto show a badly maintained berm adjacent to a substantial break in the paved portion of the road.

When asked if the oncoming vehicle was crowding her, the claimant replied, “Yes, he was crowding me. In order to pass there, you should get off the berm of the road to avoid an accident.”

From the record the Court finds that the claimant was forced off the narrow one-lane road onto a berm six to eight inches below the surface of the road which, from the photograph exhibits, appeared to have been in a bad state of repair. If the berm had been properly maintained by the respondent, the claimant’s automobile would not have sustained damages. Accordingly, the Court makes an award to the claimant in the amount of $218.44.

Award of $218.44.  