
    
      OPINION ISSUED MARCH 20, 2002
    NELSON L. SUDER AND RHONDA SUDER VS. DIVISION OF HIGHWAYS
    (CC-01-131)
    Claimants appeared pro se.
    
    Andrew F. Tarr, Attorney at Law, for respondent.
   PER CURIAM:

Claimants brought this action for damages to their 1996 Ford Taurus GL which occurred when their daughter was driving the vehicle and it went over a piece of concrete on County Route 9 in Upshur County. Respondent was at all times herein responsible for the maintenance of this roadway. The Court is of the opinion to deny this claim for the reasons set forth below.

Claimants ’ daughter, Hope Jean Suder, was operating their vehicle on March 2, 2001, in the vicinity of the Tennerton Bridge in Tennerton, Upshur County, while traveling east on County Route 9 (locally referred to as the Tallmansville Road). She had two passengers in the vehicle one of whom was an infant and one was a friend she was taking to a store to meet his family. She was not familiar with the road. The incident occurred between 9:00 p.m. and 10:00 p.m. so it was dark. The weather was clear and the road was dry. As Ms. Suder approached the Tennerton Bridge, she observed something in the roadway. There was on-coming traffic at the time so she was unable to swerve into the other lane and she could not drive to the right since the bridge rail was at the end of the bridge. Since there was traffic behind her, she drove the vehicle over the object in the middle of her travel lane. She realized that the vehicle’s undercarriage had struck the object so she drove into a lighted area off the road in order to look at the vehicle where she and her friend discovered that the gas tank was leaking as a result of the collision with the object in the roadway. Ms. Suder and her friend looked for the object, but they only found a small piece of what appeared to be concrete. She then drove to a store about a mile from the accident location where both the claimants came to look at the vehicle. The vehicle then was driven back to their home. It was later determined that the damages to the vehicle were in excess of claimants’ insurance deductible of $250.00 which amount is the limit of any recovery.

When claimant Rhonda Suder returned to the Tennerton Bridge the next morning with her daughter, they observed several pieces of concrete with black markings and they brought the largest chunk home. She noticed that there was concrete on the sides of the road and it was her opinion that the concrete pieces were broken off from a barrier on the road.

County Route 9 in this area is a two-lane, paved road with a yellow centerline and white edge lines. Photographs were submitted into evidence depicting the area. There were railroad tracks across the roadway as well as the Tennerton Bridge just after the tracks. Ms. Suder drove across the tracks at a speed of approximately twenty-five miles per hour and the object was in the road just before the bridge deck. She thought she had driven over a rock in the road until she found the debris consisting of little chunks with black marks. She and her mother opined that the vehicle had struck the larger piece of concrete that they found the next day.

The Court, having reviewed the testimony and evidence in this claim, has determined that the Court would have to resort to speculation to find negligence upon the respondent for this incident. Whether the piece of concrete found by claimant Rhonda Suder is the actual object is not the issue as much as where the concrete originated, how it got into the roadway, was respondent responsible for its being in the road, was respondent aware of the object in the road, and was respondent negligent in its maintenance of County Route 9 at the time of the accident. Claimants have the legal obligation to establish all of these issues. Based upon the evidence put forth at the hearing of this claim, the Court must find that respondent has not been shown to be negligent in its maintenance of County Route 9.

Accordingly, the Court is of the opinion to and does deny this claim.

Claim disallowed.  