
    
      OPINION ISSUED SEPTEMBER 29, 1998
    
    CINDY TERRY VS. DIVISION OF HIGHWAYS
    (CC-97-330)
    Claimant represents self.
    Andrew F. Tarr, Attorney at Law, for the respondent.
   PER CURIAM:

The claimant brought this action for damage to her vehicle after encountering a sunken culvert pipe on a road maintained by the respondent in Fayette County.

The incident giving rise to this claim occurred on August 15, 1997, at approximately 10:00 p.m. The claimant was driving her 1989 Toyota Célica on Gatewood Road (County Route 14) in the vicinity of Wilson Street. The weather was clear and dry. County Route 14 in this area is a two-lane paved road. The evidence adduced at hearing was that as the claimant approached the Wilson Street intersection, a second vehicle pulled out of Wilson Street headed towards Oak Hill. The claimant testified that she had to steer to the right to avoid striking the second vehicle. The claimant’s vehicle dropped off the road into a hole where a culvert pipe had been installed. The claimant’s vehicle apparently struck the culvert pipe and sustained a flat tire. The claimant submitted into evidence a repair bill in the amount of $63.58. The claimant carried liability coverage only.

The claimant testified that she was traveling approximately 40 miles per hour. Photographs introduced into evidence indicate that there was a culvert pipe in the immediate vicinity, located in a large hole approximately two to three feet from the edge of the road. The evidence also indicated that there were several bad shoulders in the immediate vicinity.

The Court has held that when a motorist proceeds onto the berm voluntarily, he takes the berm as he finds it. However, when a motorist is forced to use the berm in the event of an emergency, then the respondent may be held liable for failure to maintain the berm in a reasonably safe condition. Meisenhelder vs. Dept. of Highways, (CC-88-149), unpublished opinion issued August 10, 1990. The Court is of the opinion that the claimant was forced off the traveled portion of the road in an emergency and that the respondent should be held liable for failure properly to maintain the berm in a reasonably safe condition. Therefore, the Court makes an award to the claimant in the amount of $63.58.

Award of $63.58.  