
    
      OPINION ISSUED AUGUST 26, 1993
    
    MATTHEW A. TULLIUS VS. DIVISION OF HIGHWAYS
    (CC-93-6)
    Claimant present in person.
    Glen A. Murphy, Attorney at Law, for respondent.
   PER CURIAM:

Claimant, Matthew A. Tullius, seeks an award of $736.90 from the Division of Highways for property damage sustained while driving his vehicle on October 30,1992 at 11:30 p.m. on West Virginia Route 2 in Waverly, Wood County.

From the evidence adduced at the hearing on May 5,1993, it appears that the claimant was driving his 1992 Eagle Talon north on Route 2 at approximately 55 miles per hour with his brother-in-law as a passenger when he noticed an oncoming vehicle approaching left of the center line. The claimant attempted to avoid a head-on collision by driving his vehicle onto the berm on the right-hand side of the road. This area is a part of the entrance to a gravel parking lot for the High Chapparal (a local bar). The entrance to the parking lot abuts Route 2 on the State’s right-of-way. When his vehicle went onto this area, it went into an eight to twelve inch deep hole where the gravel had been washed away. Claimant’s vehicle sustained damage and the cost to repair the vehicle is in the amount of $736.90. The claimant did not turn this damage into his insurance company. The amount of the claimant’s deductible is $500.00.

Paul Reese, county supervisor for the respondent, testified that he is familiar with the scene of the accident and that the respondent had received complaints of the defective condition of the area on prior occasions. However, he also stated that he is of the opinion that it is the property owner’s responsibility to keep the driveway properly maintained, he had previously notified the owner of the High Chapparal that the driveway was in need of repair, he is of the opinion that this defective area is not the responsibility of the respondent. However, respondent failed to carry out the enforcement of W. Va. Code §17-16-9, which requires owners of land fronting any State road to keep the area properly maintained.

The Court finds, after reviewing the record, that the respondent had actual notice of the defective condition on the berm and that the respondent failed to maintain the berm area or to enforce the appropriate statutes as to the maintenance of driveways which abut State roads. In an emergency situation, the driver of a vehicle relies upon the berm area of a road to be in good repair. In this claim, the claimant has established negligence on the part of the respondent by a preponderance of the evidence.

Therefore, the Court is of the opinion to make an award to the claimant for the damage to his vehicle limited to the amount of his deductible on his insurance policy of $500.00.

Award of $500.00.  