
    
      OPINION ISSUED NOVEMBER 24, 1986
    
    BUFORD E. MARKER VS. DEPARTMENT OF HIGHWAYS
    (CC-86-1)
    Claimant appeared in person.
    Andrew Lopez, Attorney at Law, for respondent.
   PER CURIAM:

On September 22, 1985, the claimant was proceeding up the hill next to the Gorman Shelter in Coonskin Park, Kanawha County, in his 1981 Olds 98 Regency. His vehicle dropped off the berm of the road resulting in the damage to the vehicle. The rim of the vehicle was damaged and the front end was knocked out of alignment in the amount of $47.79. The claimant had originally filed the claim with the State Road Commission as the party respondent. The Court sustained claimant's motion to amend the respondent State agency to the Department of Highways.

The claimant testified that he, his wife, and three children were proceeding in Coonskin Park to attend an Olin Company picnic at the park. It was approximately 1:00 p.m. and the weather was clear. As claimant's vehicle passed another vehicle, his vehicle dropped off the road onto the berm. There was a slight difference in elevation between the surface of the paved surface and the surface of the berm. It is a blacktop surface and is ordinarily wide enough for two vehicles to pass. There was no center line on the road. The place at which claimant's vehicle left the highway was in a straight area, and the claimant was travelling at 15-20 miles per hour.

The claimant alleges that the oncoming vehicle forced him to drive his vehicle off the travel portion of the roadway. The allegation that the berm was not even with the surface of the road does not establish negligence on the part of the respondent. The negligence, if any, may well have been the actions of the driver of the oncoming vehicle, forcing claimant onto the berm. For these reasons, the Court disallows the claim.

Claim disallowed.  