
    
      Opinion issued May 11, 1981
    
    LARRY ALLEN BAYER vs. DEPARTMENT OF HIGHWAYS
    (CC-80-327)
    
      Douglas Hamilton, Attorney at Law, for respondent.
   WALLACE, JUDGE:

On August 19, 1980, at about 2:00 p.m., the claimant was operating his Oldsmobile automobile in a southerly direction on Kites Run Road in Wood County, West Virginia. Kites Run Road in this area is a one-lane gravel road, about 10 feet wide, maintained by the respondent. Near the road, to the west, is a creek that frequently overflows its banks. To the east of the road is an embankment that has slid partially into the road due to the washing action of the overflowing water from the creek. Additionally, the overflowing waters have created a ditch across Kites Run Road measuring 14 to 16 inches in depth.

The claimant testified that he had frequently called respondent’s headquarters in Parkersburg to complain about the condition of the road, and was told, in effect, that the respondent was not going to do any more to the road. The Department of Highways had actual notice of the condition of the road, but the claimant, too, was fully aware of the condition, and in fact had proceeded through this area earlier in the day. Nevertheless, that afternoon, while traveling at a speed of 10 to 15 miles per hour, the claimant struck the ditch in the road and ruined two tires, incurring an expense of $131.01 for comparable replacements.

There is little doubt that the respondent was negligent in its maintenance of Kites Run Road, but the Court believes that the claimant, with his prior knowledge of the road’s condition, was likewise negligent. Under the doctrine of comparative negligence, the Court allocates negligence as follows: claimant, 20%, respondent, 80%. Reducing the claimed damages by 20%, the Court makes an award in favor of the claimant in the amount of $104.81.

Award of $104.81.  