
    
      Opinion issued April 22, 1983
    
    JAMES BURCHAM and PATRICIA J. BURCHAM vs. DEPARTMENT OF HIGHWAYS
    (CC-80-252)
    Claimants appeared in person.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   RULEY, JUDGE:

Claimants reside on Locust Hill Road in Chester, Hancock County, West Virginia. Their home is a four-room structure which is located on the south side of Locust Hill Road. There is a hillside to the north. On May 20, 1980, at approximately 2:00 a.m., two trees fell across the house. These trees had been situated five or six feet from the road, and were caught in a slide in which a portion of Locust Hill Road gave way. A ditch line along the north side of the road was clogged, and the claimants allege that this condition caused the slide. The claimants incurred $2,006.67 in damages.

Elmer Shepherd, then general foreman in respondent’s Hancock County Office, testified that the clogged ditch line caused water to run down the hill onto the Burcham property, and, in his opinion, this water “helped create the slide.” The ditch line is required to be pulled, i.e., cleaned and cleared, every two years, and in Mr. Shepherd’s inspection of respondent’s records, the ditch line was last pulled January 2,. 1980. However, this pulling was performed on only a portion of Locust Hill Road, and did not include the area where the slide occurred. Mr. Shepherd reviewed the records back through February 1979, and found no evidence that this portion of the ditch line had been pulled.

The respondent is charged with the legal duty to use reasonable care to maintain a ditch line in such condition that it will carry off surface water and prevent its passage upon adjacent properties. Stevens v. Dept. of Highways, 12 Ct.Cl. 180 (1978). The respondent apparently failed to discharge that duty, and, as a result, the claimants’ damage occurred.

In making an award, however, the Court must also look to the action or inaction of the claimants. Although the claimants were aware of the clogged condition of the ditch line, they never made any complaint to the respondent. For that reason, the Court finds that the claimants also were negligent, and, under the doctrine of comparative negligence, the Court reduces the claimants’ damages by 20%.

Award of $1,605.33.  