
    
      OPINION ISSUED FEBRUARY 7, 1995
    
    LARRY L. HILL VS. DIVISION OF HIGHWAYS
    (CC-94-204)
    Claimant represents self.
    Andrew F. Tarr, Attorney at Law, for respondent.
   PER CURIAM:

Claimant, Larry R. Hill, seeks an award of $ 1,849.62 from respondent. Division of Highways, for property damage sustained while driving his vehicle on March 12, 1994 or Route 25/5, between Cross Lanes and Dunbar, at approximately 15 miles per hour. As he approached an oncoming automobile, he slowed his automobile to five miles per hour and drove onto the berm of the road. Although the road was dry, the berm immediately gave way, causing claimant’s automobile to slide over the embankment adjacent to the roadway. He stated that there were no warning signs along the road and there was nothing he could do to avoid the accident. The claimant reported the problem to the respondent two days after the incident. The claimant testified he travels Route 25/5 everyday, and that he is aware that it is not wide enough for two vehicles to pass without proceeding onto the berm. The claimant entered into evidence a receipt for $125.00 for towing expenses and an estimate $1,724.62 for repairing his car. The claimant does not carry insurance which will cover this accident.

The respondent did not present any evidence in this claim and the Court must determine the negligence of the respondent, if any, based upon the record before the Court. Claimant did not establish any notice to respondent as to the unstable condition of the berm. In fact, claimant did not realize the instability of the berm until he drove onto it. However, respondent was aware that this is a one-lane road and that vehicles traversing the road would necessarily have to traverse the berm in order to pass each other on this road. Thus, respondent had an obligation to maintain the berm properly to protect the traveling public using the road and the berm. The Court has determined that respondent was negligent in failing to warn the traveling of the unstable berm and/or to maintain the berm in stable condition.

Accordingly, the Court is of the opinion to and does make an award to the claimant in the amount of $1,724.62 for the damages to his automobile.

Award of $1,724.62.  