
    
      Opinion issued October 4, 1983
    
    MARY P. KELLY vs. DEPARTMENT OF HIGHWAYS
    (CC-82-303)
    Claimant appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

Claimant seeks $259.55 for damages to her 1975 AMC Pacer incurred on August 1, 1982. Claimant was driving on Route 119/12 near Morgantown, Monongalia County, West Virginia, when she drove over a boulder in the road causing damage to the vehicle. She testified that the boulder has been in the road for at least 40 years.

James A. Trickett, a supervisor with respondent, testified that Route 119/12 is a one-lane, low-priority, dirt road which the respondent is required to inspect and maintain only on a yearly basis. Mr. Trickett described the boulder as being embedded in the road’s surface. The boulder has been there since the road was built. According to Mr. Trickett, the boulder is of the same contour as the road, and he stated that he had no way of knowing the size or depth of the boulder.

After careful consideration of the evidence presented, the Court can find no basis for liability on the part of respondent. The presence of the boulder was not due to the acts or omissions of respondent, but was a pre-existing condition of the road over which respondent had no control. As no negligence has been shown, the Court must deny the claim.

Claim disallowed.  