
    
      OPINION ISSUED AUGUST 10. 1998
    
    JUDY SHEPPARD AND JASON SHEPPARD VS. DIVISION OF HIGHWAYS
    CC-97-228)
    Claimant represents self.
    Julie M. Meeks, Attorney at Law, for the respondent.
   PER CURIAM:

The claimant brought this action for damage to her 1996 Pontiac Grand Prix which occurred after she encountered a hole on a road maintained by the respondent in Logan County. The Court on its own motion amended the style to reflect the proper parties.

The incident giving rise to this claim occurred on May 16, 1997, in the afternoon. Ms. Sheppard was driving on Trace Fork Road near the Logan-Boone county line. The weather was clear and dry. Trace Fork Road is a paved road, approximately 16 feet wide, that is low priority in terms of maintenance. The evidence adduced at hearing was that as Ms. Sheppard proceeded around a turn, she steered to the right to avoid an oncoming vehicle. Her vehicle then struck a deep hole on the edge of the pavement, resulting in two flat tires, two bent rims, and a damaged strut. The claimants submitted into evidence a repair estimate in the amount of $343.23. Information from the claimant’s insurance carrier indicates that the claimant had full coverage with a $500.00 deductible.

Ms. Sheppard testified that she was traveling approximately 25 miles per hour. She was familiar with the road and traveled it frequently. Photographs introduced by the claimant indicated that the hole in question was at least six inches deep and several feet in breadth along the edge of the pavement. It was the respondent’s position that the hole was caused by unusually heavy rainfall.

It is the general rule of this Court that where a claimant uses the berm of the road in an emergency situation, he/she may be entitled to recover damages if the berm is not maintained in a reasonably safe condition by the respondent. Meisenhelder vs. Dept. of Highways (CC-88-149, unpublished opinion issued August 10, 1990). The Court is of the opinion that the defective condition on the berm in question developed over a significant period of time and that the respondent therefore had constructive notice of this road defect. Further, in keeping with its general rule regarding berm accidents, the Court finds that the claimant is entitled to an award. Therefore, in view of the foregoing, the Court makes an award in the amount of $343.23.

Award of $343.23.  