
    
      OPINION ISSUED MARCH 10, 2010
    
    STEVEN ALLEN SPONAUGLE AND KANDICE LEE SPONAUGLE V. DIVISION OF HIGHWAYS
    (CC-06-0022)
    Claimants appeared pro se.
    
    Jason C. Workman, Attorney at Law, for Respondent.
   PER CURIAM:

Claimants brought this action for vehicle damage which occurred when Steven A. Sponaugle’s pickup truck struck a tree that fell on State Route 72 as a result of a landslide. Mr. Sponaugle’s 16-year-old daughter, Kandice Lee Sponaugle, was the driver of the vehicle. The incident occurred near Parsons, Tucker County. State Route 72 is a public road maintained by respondent. The Court is of the opinion to deny the claim for the reasons more fully stated below.

The incident giving rise to this claim occurred at approximately 10:00 p.m. on January 6, 2006. At the time of the incident, Ms. Sponaugle was driving from Parson’s Shop N Save, where she worked, to her home. The speed limit on State Route 72 is fifty-five miles per hour. Due to the rain and snow, Ms. Sponaugle was traveling at approximately forty miles per hour. Ms. Sponaugle testified that she was driving up a hill when she noticed motorists from several vehicles stopped along a wide spot in the road. As she glanced over at the motorists to see what had happened, her vehicle struck a tree that had fallen, presumably as the result of a landslide. She stated that there is a steep incline located along the side of the road. Apparently, repetitive forces of freezing and thawing dislodged the rocks on the hillside, which caused the tree to fall. Ms. Sponaugle testified that she did not notice the tree before the vehicle struck it. The tree had fallen onto both lanes of travel, and she later discovered that one or more of the motorists who had pulled off to the side of the road had also struck the tree with their vehicles. Ms. Sponaugle stated that she is familiar with the roadway and had noticed rocks that had fallen on the road prior to this incident. Ms. Sponaugle stated that the landslide occurred approximately five or ten minutes before her vehicle struck the tree.

Also testifying at the hearing was Steven A. Sponaugle, who was driving behind his daughter at the time of the incident. Mr. Sponaugle stated that he had seen rocks along the roadway and on the side of the road, but he had never seen a tree that had fallen on State Route 72 prior to this incident. He testified that shortly after his daughter’s accident, respondent arrived to the scene to clean up the tree and debris. Mr. Sponaugle stated that there was extensive damage to the vehicle, and he paid $1,786.57 for the repairs. Ms. Sponaugle reimbursed him for the damages.

The position of the respondent is that it did not have actual or constructive notice of the condition on State Route 72. Terry Simmons, Equipment Operator 2 for respondent in Tucker County, testified that State Route 72 is a first priority road in terms of its maintenance. Mr. Simmons stated that he was familiar with this incident and that he ran the end loader to clean up the debris from the landslide. He testified that he was not aware of any other instances where a tree became uprooted and came down the hill, covering the road with debris. He explained that this instance was an isolated situation. However, he stated that rocks fall onto the roadway approximately twice a month at this location. Mr. Simmons also stated that, on the night of the incident, he responded to the incident approximately one half hour after he became aware of the problem.

The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645; 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986).

In the instant case, the Court is of the opinion that respondent did not have notice of the condition on State Route 72. Although there have been rock falls at this location, this landslide was an isolated incident. In addition, respondent responded to the incident as soon as it became aware of the problem. Thus, there is insufficient evidence of negligence on the part of respondent upon which to base an award.

In view of the foregoing, the Court is of the opinion to and does deny this claim.

Claim disallowed.  