
    
      Opinion issued December 20, 1982
    
    AZILE DEAN, INDIVIDUALLY, AND AS EXECUTRIX OF THE ESTATE OF VIRGIL DEAN, DECEASED vs. DEPARTMENT OF HIGHWAYS
    (CC-79-632)
    
      Hazel A. Straub, Attorney at Law, for claimant.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   GARDEN, JUDGE:

On January 31, 1979, at approximately 1:30 p.m., Virgil Dean was driving on Route 119, between Danville and Rock Creek, in Boone County, West Virginia. A portion of shale rock broke off of the side of the mountain and struck Mr. Dean’s 1971 Chevrolet truck. Mr. Dean sustained a cerebral concussion, neck strain and multiple contusions of the chest. He was hospitalized until February 6, 1979. Mr. Dean died on September 5, 1979, during heart surgery. Azile Dean, widow of Virgil Dean, maintains this action on her behalf and as executrix of her husband’s estate. She seeks an award of $50,000.00, based on respondent’s allegedly negligent maintenance of Route 119.

Claimant testified that her husband had observed loose rock at the accident site, and told her if it fell, it would kill someone. This occurred four to six weeks before the accident. Claimant further stated that her husband left the house one day to notify the respondent of this danger, but could not say whether, or to whom, he talked. She said that Mr. Dean told their nephew, Ricky Daniel Dean, about the loose rock. Ricky Dean was then employed by the respondent.

Ricky Dean testified that he informed James Anderson and Gary Keys, both employees of the respondent, about the condition of the rock. These reports were made as part of Mr. Dean’s daily inspector’s report, which was required by his job. This was approximately five weeks before the accident, and according to Mr. Dean, no action was taken as a result of his report.

James Anderson stated that he did not remember Ricky Dean reporting a hazardous rock condition to him. Gary Keys said that he checked the daily inspector’s reports for November and December of 1978 and found no information about the rock area in question. Frank Ball, who was the Boone County Road Maintenance Supervisor in 1979, testified for respondent. He stated that the portion of Route 119 where the accident occurred had not been subject to rockfalls, just shale debris falling into the ditch line. Mr. Ball said that it was “very unusual” for a large piece of shale rock to break off, and that this had never happened in this area. He also said that he travelled that portion of Route 119 every day that he worked and had never seen anything unusual with the hillside at the accident site.

A careful review of the facts as established by the record indicates to the Court that the respondent was not negligent in its maintenance of Route 119. This particular section of the road was not known to be one where falling rocks, of the size which was encountered by Virgil Dean, usually fell. Manning v. Dept. of Highways, 13 Ct.Cl. 275 (1980). The Court is of the opinion that the claimant has failed to establish by a preponderance of the evidence that the respondent knew or should have known that a dangerous condition existed on Route 119. The law of West Virginia is well established that the State is neither an insurer nor a guarantor of the safety of persons travelling on its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947).

As the evidence does not establish negligence on the part of the respondent, the claim must be denied.

Claim disallowed.  