
    
      OPINION ISSUED FEBRUARY 22, 1991
    
    JOSEPH J. NEKORANEC VS. DIVISION OF HIGHWAYS
    (CC-90-148)
    Claimant appeared in his own behalf.
    James D. Terry, Attorney at Law, for respondent.
   PER CURIAM:

On December 29, 1989, around 3:00 p.m., claimant drove his Ford 150 pick-up truck into the parking lot of Economy Tank Company beside the Pt. Pleasant road in St. Albans, Kanawha County. To enter the lot, claimant's truck crossed a drain grate. The grate struck the under-structure of claimant's truck damaging the front fender. Claimant immediately notified a representative of Economy Tank Company, who advised that the grate "belonged to the State Road." Claimant then notified respondent of the damage before leaving the scene of the accident. A representative of respondent's St. Albans office came to the accident site and disavowed responsibility for the grate.

The uncontroverted testimony in this matter is that a worn grate with a concave shape caused the damage. Claimant testified that the grate "kicked up" as his truck crossed it. The resulting damage is estimated at $178.08, the amount upon which this claim is brought.

Respondent avers that the grate is not its responsibility, since the driveway upon which it is situate is the property of Economy Tank Company. Respondent further argues that property owners are responsible for maintaining the approach to their lot, inclusive of drainage. An encroachment permit is required for private driveway access to state roads. This permit obligates and assigns maintenance responsibility and liability to the property owner. The pertinent law is WV Code §17-16-9 and reads in part:

The owner or tenant of land fronting on any state road shall construct and keep in repair all approaches or driveways to and from the same, under the direction of the state....

Respondent's witness testified that the grate in question was not of the type approved by and installed by respondent. Testimony also indicates that Economy Tank Company has routinely altered the grating and by such actions has manifested dominion and control over same. Accordingly, the Court can find no negligence upon the part of respondent and must deny the claim. The Court further holds that respondent is not the proper party defendant.

Claim disallowed.  