
    
      OPINION ISSUED JULY 13, 1999
    
    LINDA K. DUNCAN AND RICHARD L. DUNCAN VS. DIVISION OF HIGHWAYS
    (CC-97-374)
    Claimants appeared pro se.
    
    Andrew F. Tarr, Attorney at Law, for the respondent.
   PER CURIAM:

The claimants brought this action for damage to their vehicle after claimant Richard L. Duncan was driving their 1976 GMC pickup truck and he encountered a hole at the edge of Manilla Creek Road in Poca, Putnam County. Claimants’ vehicle sustained damage during this incident for which they claim $2,100.00. Claimants’ insurance coverage is for liability only, but they did receive $400.00 for glass breakage.

Claimant Richard L. Duncan and a friend were proceeding in claimants’

pickup truck on Manilla Creek Road on September 16,1997, when the vehicle went into a hole described as being a broken off section of the edge of the road which was two feet long and one and a half feet deep at the edge of the road.

Manilla Creek Road was described as being a narrow, one lane road approximately 12 feet in width.

Claimants lived about one mile from the area of the incident. Mr. Duncan was very familiar with the road and drove it on a daily basis. He explained that on this particular occasion his truck went into the hole at the edge of the road and proceeded over the hill striking some trees which actually stopped the truck from going further down the hillside.

The report compiled by the investigating law enforcement agency, the Putnam County Sheriff’s Department, was introduced into evidence by Mr. Duncan. The officer marked two boxes “Failure to Maintain Control” and “Other Roadway Defects” on the front of the report and he wrote in the description that “...a portion of roadway was missing and truck rolled over embankment on right side of roadway”. The investigation was completed while claimants’ truck was still at the scene, but some hours after the accident. Mr. Duncan had proceeded immediately after the accident with his friend to the hospital for medical treatment.

Claimants’ pickup truck was totaled as a result of this accident. Mr. Duncan received about $500.00 and $400.00 from his insurance carrier for all of the glass breakage which occurred. He estimated the value of the truck at $3,000.00 for a loss of about $2,100.00.

Respondent did not offer any witnesses or other evidence at the hearing.

The Court assumes that Manilla Creek Road in Putnam is a State maintained road. It is a narrow road apparently serving residents in the area. It is blacktopped, but according to the claimant, Mr. Duncan, there is little, if any, berm on the side of the road at least in the direction in which he was traveling on the date of the incident. The deteriorated condition of the edge of the roadway in September 1997 leads this Court to opine that the respondent did not maintain the roadway in proper condition; however, claimant Richard Duncan was very familiar with the road. The Court has determined that Mr. Duncan did not use the proper precaution of the reasonable, prudent driver while traversing Manilla Creek Road on the date of his accident. Therefore, the Court concludes that the parties were equally negligent and under the doctrine of comparative negligence the claimants may not recover.

In accordance with the findings of the Court as stated herein above, the Court denies this claim.

Claim disallowed.  