
    
      OPINION ISSUED JANUARY 23, 1998
    
    ANDREW GILMAN AND LAURA GILMAN VS. DIVISION OF HIGHWAYS
    (CC-96-587)
    
      Claimants represents self.
    Julie Meeks, Attorney at Lw, for the respondent.
   PER CURIAM:

The claimants brought this action for damage to their 1991 Nissan Quest van, which occurred after encountering broken pavement along the berm area on a road maintained by the respondent in Ohio County. The Court is of the opinion to make an award for the reasons stated more fully below.

The incident giving rise to this claim occurred on February 19, 1996. Claimant Laura Gilman was driving southbound on Peters Run Road near Elm Grove at approximately 9:10 a.m. There were six children in the vehicle. Peters Run Road in this area is a two-lane paved road. The evidence adduced at hearing was that as Ms. Gilman proceeded around a turn, she was forced to the edge of the road to avoid an oncoming garbage truck that had crossed into her lane of traffic. The edge of the pavement along the berm was broken and deteriorated. The claimants’ vehicle sustained a flat tire and bent wheel rim and was knocked out of alignment. There were no physical injuries. The claimants’ insurance deductible was $250.00.

The claimant submitted into evidence several photographs taken in April 1996 establishing that the edge of the pavement along this area of Peters Run Road was in extremely deteriorated condition, with a significant drop off along approximately 12 feet of the road where the pavement had broken away. The Court has previously held that the berm or shoulder area must be maintained in a reasonably safe condition for use when the occasion requires, and that liability may ensue when a motorist is forced to use the berm in an emergency. Sweda vs. Dept. of Highways, 13 Ct. Cl. 249 (1980). The evidence indicates that the claimant was forced to the edge of her lane in just such an emergency situation. Accordingly, the Court is of the opinion to and does hereby make an award to the claimants in the amount of $250.00.

Award of $250.00.  