
    
      OPINION ISSUED OCTOBER 8, 2010
    
    GARY ALLEN SWEENEY V. DIVISION OF HIGHWAYS
    (CC-09-0127)
    Claimant appeared pro se.
    
    C. Brian Matlco, Attorney at Law, for Respondent.
   PER CURIAM:

Claimant brought this action for vehicle damage which occurred when a rock fell on his 2003 GMC Yukon on State Route 10 in Logan County. State Route 10 is a public road maintained by Respondent. The Court is of the opinion to malee an award in this claim for the reasons more fully set forth below.

The incident giving rise to this claim occurred at approximately 5:20 p.m on February 27,2009. State Route 10 is a paved, four-lane road with two lanes traveling in each direction. At the time of the incident, Claimant’s wife, Jennifer Sweeney, the operator of the Yukon, was traveling eastbound on State Route 10 at approximately forty miles per hour. A rock cliff, created by the Respondent while widening State Route 10, was located to the right of Mrs. Sweeney’s lane of travel, and a two-foot high concrete barrier had been erected by Respondent between the cliff and the roadway, in an effort to prevent falling rocks from rolling onto the road.

As Mrs. Sweeney was proceeding past the rock cliff, she heard a rock fall onto the back of the vehicle. Ms. Sweeney stated that she never saw the rock and only heard the noise. When she reached her destination, she noticed an indentation on the top of the vehicle. Ms. Sweeney travels on State Route 10 approximately once every two weeks and every third time she travels on this road, she has seen rocks on the roadway. As a result of the incident, Claimant’s vehicle sustained body damage in the amount of $653.52. Claimant had an insurance deductible of $1,000.00.

The position of the Respondent is that it did not have actual or constructive notice of the condition on State Route 10 in Logan County. Troy Belcher, Supervisor One for Respondent in Logan County, testified that he is familiar with State Route 10 and stated that it is a heavily traveled highway. He testified that there is an 8-foot wide berm with a concrete barrier adjacent to the roadway at this location to prevent rocks from falling onto the road. He testified that rocks fall onto the roadway on State Route 10 approximately once a year. He explained that cold weather and rain affect the frequency of rock falls. Mr. Belcher is not aware of any other rock falls on this road. He further stated that the rock cliff was not terraced at this location.

The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645; 46 S.E.2d 81 (1947). This Court has consistently held that the unexplained falling of a boulder or rock debris on the road surface in insufficient to justify an award. Cobum v. Dep’t of Highways, 16 Ct. Cl. 68 (1986). In order to establish liability on behalf of Respondent, the evidence must establish that Respondent had notice of the dangerous condition posing the threat of injury to property and a reasonable amount oftime of take suitable action to protect motorists. Alkire v. Div. of Highways, 21 Ct. Cl. 173 (1997).

In the instant case, the Court is of the opinion that Respondent has failed to take adequate measures to prevent rock falls on this heavily traveled road. The rock cliff is not terraced, and there is no netting to keep rocks off the roadway. The Court finds that the two foot concrete barrier is insufficient to protect the traveling public from rock falls at this location. Thus, the Court finds Respondent negligent, and Claimant may make a recovery for the damage to his vehicle.

In accordance with the findings of fact and conclusions of law as stated herein above, it is the opinion of the Court of Claims to make an award in the amount of $653.52.

Award of $653.52.  