
    
      OPINION ISSUED FEBRUARY 3, 1989
    
    CAROL J. BAKER VS. DEPARTMENT OF HIGHWAYS
    (CC-88-146)
    Claimant appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

Claimant brought this action to recover damages sustained to her automobile, a 1983 Oldsmobile, when it struck a hole in Route 50 near Parkersburg, West Virginia.

The claimant, Carol J. Baker, testified that she was travelling towards Parkersburg in her 1983 Oldsmobile, on Route 50 in Wood County. The incident occurred on April 26, 1988, at approximately 6:00 p.m. The weather was clear. Claimant explained that she heard a siren from an emergency vehicle. She was travelling at approximately 30-35 miles per hour. She pulled her automobile off the travel portion of the road onto the berm. The automobile struck a hole in the berm causing damages to her automobile. The wheel and rim were replaced for a total cost of $90.00.

The claimant travelled the road infrequently prior to her accident. The hole was located at the edge of the road on the berm. The claimant's vehicle struck the hole before she noticed it. Claimant described the hole as being approximately six inches deep. There were vehicles travelling in front of claimant. These vehicles also pulled off the road for the emergency vehicles, but were beyond the point at which claimant drove onto the berm.

This Court has previously considered the issue of claims involving damages to vehicles where the berm of the road is in a defective condition. The Court has generally held that, where the respondent provides a road which is too narrow for the passage of two vehicles, the respondent will be held liable for damages which occur when claimants must use the berm of the road and that berm is in a defective condition. See White vs. Dept. of Highways, 11 Ct.Cl. 138 (1976) and Conn vs. Dept. of Highways, 13 Ct.Cl. 194 (1980).

The Court has also held that a claimant who has not been forced onto the berm will not recover for damages sustained from a defect in the berm. Sweda vs. Dept. of Highways, 13 Ct.Cl. 249 (1980).

It is the opinion of the Court that the claimant herein was not negligent in proceeding onto the berm for an emergency vehicle but was placed in a position of having to use the berm, and the berm should have been in usable condition. Photographic evidence reveals that the berm was defective. The Court has determined that the respondent was negligent in its maintenance of the berm at the site of this accident. Therefore, the Court is of the opinion that claimant is entitled to an award for damages to her vehicle in the amount of $90.00.

Award of $90.00.  