
    
      OPINION ISSUED SEPTEMBER 16, 1997
    
    PAULA GIVENS VS. DIVISION OF HIGHWAYS
    (CC-96-465)
    Claimant represents self
    Andrew F. Tarr, Attorney at Law, for the respondent.
   PER CURIAM:

The claimant brings this action for damage to her 1984 Nissan 300 ZX automobile, caused when she encountered a rock slide on Mile Fork Road, Route 27, near Charleston. The Court is of the opinion that claimant is entitled to a partial award as described below.

The incident giving rise to this claim occurred on July 30, 1996, at about 4:45 p.m., when claimant was driving northbound on her way home from work. The evidence is that Route 27 in this area is a one-lane paved road about 12 feet wide, with a 35 mile-per-hour speed limit. The claimant testified that she was familiar with the road and drove it daily to and from work.

The claimant testified that she was coming out of a bend in the road when she had to steer to the right to avoid an oncoming vehicle. At this point the claimant states that her vehicle encountered a rock slide that had spilled over onto the paved traveled portion of the road, causing damage to the right front fender. Claimant submitted a repair estimate of $934.83. The claimant did not repair the vehicle, and eventually she traded it in on the purchase of a pick-up truck. She carried liability insurance only.

The claimant submitted several photographs of the rock slide taken later the same evening that show the slide extending into the traveled portion of the road. The claimant testified that she knew this particular area frequently has rock slides and that the area had recently received a heavy rain. She stated that the slip she encountered was near a driveway leading to a trailer on a hill above the roadway. According to the claimant, there were no rock fall warning signs.

Calvert Mitchell, Elkview maintenance supervisor for the respondent, testified that Mile Fork Road, Route 27, is a low priority secondary road in terms of maintenance priority. He testified that he was aware of a previous slip along the road, after the trailer had been installed on the slope above the road. He testified that some of the fill graded out from the trailer site tended to slip down onto the road during heavy rain. He also testified that mud and gravel tended to run off from the driveway. Mr. Mitchell submitted several photographs of the road taken on July 3, 1997. It was his testimony that the photographs show that the slide the claimant encountered occurred approximately 150 feet past this driveway, on a fairly straight portion of the road with relatively unobstructed visibility, while the claimant testified that the slip occurred just passed the driveway entrance closer to the curve.

It is the general rule in West Virginia, that the unexplained falling of rocks or boulders onto a highway without a positive showing that the respondent knew or should have known of a dangerous condition posing injury to person or property is insufficient to justify an award. Hammond vs. Dept. of Highways, 11 Ct. Cl. 234 (1977); Coburn vs. Dept. of Highways, 16 Ct. Cl. 68 (1986). The Court' is of the opinion that the evidence establishes that respondent had notice of the possibility of a rockfall on this road.

Accordingly, the Court has determined that the respondent was negligent in its maintenance of Route 27 on the date of claimant’s accident. However, the Court is also of the opinion that the claimant was 25 percent at fault as she was aware of the potential for rock slides in this area and she should have been driving with particular care along this road. Therefore, the Court is of the opinion to and does make an award in the amount of $701.12, representing the amount of claimant’s repair estimate reduced by 25 percent.

Award of $701.12.  