
    
      OPINION ISSUED JULY 6, 2006
    
    TRAVIS E. LONG VS. DIVISION OF HIGHWAYS
    (CC-03-501)
    Claimant appeared pro se.
    
    Andrew F. Tarr, Attorney at Law, for respondent
   PER CURIAM:

Claimant brought this action for vehicle damage which occurred as a result of his vehicle striking a rock when he was traveling northbound on U.S. Route 220 near Petersburg, Grant County. U.S. Route 220 is a road running through Grant County and is maintained by respondent. The Court is of the opinion to deny this claim for the reasons more fully set forth below.

The incident giving rise to this claim occurred between 5:30 p.m. and 6:00 p.m. on September 10, 2003, a clear and dry day. U.S. Route 220 is a two-lane road that is marked at the location of claimant’s accident as a “falling rock” area with a containment fence along the road to keep rocks off of the highway. Claimant was proceeding on U.S. Route 220 when he noticed a rock in his lane of traffic. Mr. Long testified that he was unable to avoid the rock due to the traffic. He stated that the rock was approximately seven inches long and six to seven inches tall. Mr. Long further testified that the containment fence on the side of the road had been damaged for nearly one year, allowing rocks to fall onto the highway. Claimant’s vehicle struck the rock and sustained damage to the transmission case totaling $839.13.

The respondent did not present any witnesses or evidence in this matter.

It is a well-established principle that the State is neither an insurer nor a guarantor of the safety of motorists upon its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). To hold respondent liable, claimant must establish by a preponderance of the evidence that respondent had actual or constructive notice of the road defect at issue and a reasonable amount of time to take corrective action. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt vs. Dept. of Highways, 16 Ct. Cl. 8 (1985). In rock fall claims, this Court has held that die unexplained falling of a rock onto a highway without a positive showing that respondent knew or should have known of a dangerous condition posing injury to person or property is insufficient to justify an award. Coburn vs. Dept. of Highways, 16 Ct. Cl. 68 (1985).

In the present claim, claimant has established that respondent failed to take adequate measures to protect the safety of the traveling public on U.S. Route 220 in Grant County. While respondent has placed “falling rock” warning signs to warn the traveling public of the potential for rock falls at this location and a fence to prevent rocks from falling into the roadway, the evidence established that the fence was extensively damaged and had been so for some time. The respondent’s actions on the date of this incident were not adequate to protect the claimant from the rocks which frequently fall in this area. Thus, the Court is of the opinion that respondent is liable for the damages which flow from its inadequate protection of the traveling public. However, at the hearing of this matter, the Court requested claimant to provide a copy of his insurance declaration page to verify the amount of his insurance deductible. Claimant has failed to provide his insurance declaration page for the Court to review. Therefore, the Court is of the opinion to and does deny this claim.

Claim disallowed.  