
    
      Opinion issued June 28, 1985
    
    VENEZIA HAULING, INC. vs. DEPARTMENT OF HIGHWAYS
    (CC-84-69)
    Claimant’s representative, John Joseph Venezia, Executive Vice-
    President and General Manager of Venezia Hauling, Inc., appeared on behalf of claimant.
    Nanvy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

Claimant company filed this action to recover damages sustained by one of its trucks, a three-axle Mack truck, which occurred when the truck was struck by rocks on W. Va. State Route 2 near Moundsville, West Virginia. The damage to the truck was in the amount of $1,859.00.

Jerry Lee Moore, an employee of the claimant, testified that he was driving the Mack truck on February 13, 1984, on W. Va. Route 2. He was proceeding northerly at a point south of Moundsville, West Virginia. It was approximately 9:00 p.m., and there was a heavy rain. He was proceeding at approximately 40 to 45 miles per hour when he felt something hit the side of the truck, and at the same time, he noticed rocks falling around the vehicle. He hit the brakes, and at approximately the same time, a big rock hit the side of the truck. He indicated that he had not noticed any “Falling Rock” signs in the area.

Kamal R. Shaar, a geologist employed by the Materials Control, Soil and Testing Division of the respondent, testified that this portion of Route 2 was constructed during the 1960’s. A benching system was built according to the plans that were provided when the highway was built. The hillside consists of a total of nine (9) benches at the full height of the cut which extends almost 400 feet above the highway. He stated that “as far as the design of the roadway, it was designed adequately and according to plan.” The purpose of the benching system and design of the rock cut is to control falling rocks.

This Court has consistently held that the State is neither an insurer nor a guarantor of the safety of persons traveling its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). The evidence herein indicates that the respondent took precautions to protect the traveling public from falling rocks when it constructed the highway, and there was no evidence that respondent had notice, actual or constructive, of any inherent danger of a pending rock fall. Accordingly, the Court disallows the claim.

Claim disallowed.  