
    
      Opinion issued June 30, 1983
    
    DAVID H. KISOR, ADMINISTRATOR OF THE ESTATE OF JULIA KISOR, DECEASED vs. DEPARTMENT OF HIGHWAYS
    (CC-79-122)
    Claimant Julia Kisor appeared in person.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   RULEY, JUDGE:

This claim was filed by Julia Kisor. Subsequent to the hearing of the claim, Julia Kisor died, and David H. Kisor qualified as administrator of her estate. He maintains this claim for the estate of his mother.

This $10,000.00 claim is for damage to real property located on Green Valley Road, Huntington, Cabell County, West Virginia. The property is located on a hillside above the road. Claimant alleged that her home was damaged as the result of a slide caused by respondent’s ditch cleaning operation. Specifically, claimant alleged that respondent’s employees cut the toe of the slope in front of the house and the subsequent slide undermined a corner of the house.

Gary Adkins, a maintenance engineer employed by respondent, visited the property following the slide. He testified that the slide was not caused by actions of respondent’s employees, but rather by the continuous saturation of the soil from the downspouts on the house. This caused instability in the land, resulting in the slide. Mr. Adkins stated that ditch cleaning consists of removing material that has gathered in the ditch, which would not cause a slide of this type. He said that plans had been made to correct the slide, since it had affected the road surface and that this work would benefit claimant as well as respondent.

Additional testimony was taken after the repair work. Mr. Adkins again testified. He stated that the repairs consisted of grading claimant’s property and building a retaining wall. This had appeared to stabilize the hill.

Respondent has the duty to maintain drainage ditches along roadways, which includes periodically cleaning those ditches. After careful consideration of the testimony presented, the Court is of the opinion that the claimant has not proved by a preponderance of the evidence that respondent was negligent in carrying out its duty. The evidence indicated that the slide resulted from the saturation of the hillside from the drainage from claimant’s house. As no negligence has been found, the respondent cannot be held liable for the damage to the house. Therefore, the claim must be denied.

Claim disallowed.  