
    
      OPINION ISSUED FEBRUARY 19, 1986
    
    LOVA M. STOUT AND M. WOOD STOUT VS. DEPARTMENT OF HIGHWAYS
    (CC-78-29)
    Gregory W. Evers, Attorney at Law, for claimant.
    Andrew Lopez, Attorney at Law, for respondent.
   GRACEY, JUDGE:

The claimants seek an award of $20,000.00 for personal injuries, medical expenses, and damage to their 1966 Plymouth automobile. Claimants were travelling northbound on Route 20 at Gum Mountain near Buckhannon, Upshur County, on February 10, 1976. Claimant M. Wood Stout testified that a large boulder rolled out in front of them and their vehicle collided with it. He also testified that rocks have been falling in this particular area since the 1950's as he has lived there with his wife since that time. Claimant Lova Stout also testified "there were always rocks falling down off of that hill."

R. F. Heflin, General Foreman for respondent in Upshur County, testified that he was unaware of any rock fall signs in the area of the accident in February 1976. On the day before the accident, respondent's crew was plowing snow. He said that a crew, from time to time, would go down to Gum Mountain and pick up all of the loose rocks and ditch the road. He was unable to document, through records maintained by respondent, that any of respondent's crews had worked on Gum Mountain on February 10, 1976.

This Court has held that the unexplained falling of a rock or boulder into a highway without a positive showing that respondent knew or should have known of a dangerous condition posing injury to person or property is insufficient to justify an award. Hammond v. Dept. of Highways, 11 Ct.Cl. 234 (1977) . There was no evidence in this case of such notice to or knowledge on the part of respondent. Therefore, the Court must deny the claim.

Claim disallowed.  