
    
      OPINION ISSUED AUGUST 10, 1998
    
    PAMELA S. BURKE VS. DIVISION OF HIGHWAYS
    (CC-97-257)
    Claimant represents self.
    Julie M. Meeks, Attorney at Law, for the respondent.
   PER CURIAM:

The claimant brought this action for damage to her vehicle after it encountered a rock in a road maintained by the respondent in Fayette County.

The incident giving rise to this claim occurred on June 12, 1997. The claimant was driving her 1991 Beretta southbound on WV Route 61 near Montgomery. Route 61 in this area is a paved two-lane road with little or no berm. The evidence adduced at hearing was that the claimant’s vehicle struck a rock approximately the size of a bowling ball that was lying in her lane of traffic. The rock damaged the catalytic converter and transmission pan. The claimant submitted repair bills in the amount of $177.54. The claimant’s insurance deductible was $250.00.

The claimant testified that there was traffic in the oncoming lane as well as immediately behind her and that therefore she was unable to swerve or stop to avoid the rock. The respondent’s evidence established that there had been rock falls in other areas on Route 61, but that this particular area was not a known rock fall area. The respondent had no notice of a rock fall in the area on the date of the claimant’s accident.

It is well established that the respondent is neither an insurer nor a guarantor of the safety of motorists upon its highways. Adkins vs. Sims, 46 S.E.2d 81 (W.Va. 1947). The general rule is that the unexplained falling of a rock onto a highway without a positive showing that the respondent knew or should have known of a dangerous condition posing risk of injury or property damage, is insufficient to justify an award. Coburn vs. Dept. of Highways, 16 Ct. Cl. 68 (1986). Therefore, in view of the foregoing, the Court is of the opinion to and hereby denies this claim.

Claim disallowed.  