
    
      OPINION ISSUED FEBRUARY 3, 1989
    
    VIRGIE MAE VARNEY AND WILLIAM ERNEST VARNEY VS. DEPARTMENT OF HIGHWAYS
    (CC-82-195)
    Francis M. Curnutte, III, Attorney at Law, for claimants.
    Nancy J. Aliff, Attorney at Law, for respondent.
   GRACEY, JUDGE:

Claimant Virgie Maw Varney asked for an award in the amount of $150,000.00. Her husband, claimant William Ernest Varney, asked for an award in the amount of $25,000.00. Their claims arise from an automobile accident which occurred at about 8:00 p.m., on September 14, 1981, on Route 52, near Nolan, in Mingo County. The claimants' vehicle, a 1980 Chevrolet Malibu, then being driven by Mrs. Varney, ran into standing water and debris in the southbound lane of the highway, hydroplaned into the northbound lane as she lost control, and collided head-on with a northbound truck.

She had left their home, at Pinson Fork, Kentucky, at about 6:30 a.m. that day, to keep a 9:30 a.m. doctor's appointment in Huntington. She was accompanied by her two little daughters and at Crum, she picked up her mother. Her physician removed several moles from her nose and back, using only local anesthesia. After lunch and shopping, they returned to Crum where several hours were spent visiting and having supper. She left there, to drive home, at about 7:00 p.m., again accompanied by her two little daughters and sister.

In her testimony, she recounted that it was dark and raining; that the road was wet, and that she was going about 35 to 40 miles per hour when she drove into the standing water; that she had not seen it, even though her vehicle's headlights were on and the windshield wipers were working, before running into it. She said she had driven over this section of highway on numerous previous occasions, but never when it was raining. As a result of the collision, she suffered some facial injuries and injuries to both knees, the most serious injury being a fractured patella of her right knee, ultimately requiring arthroscopic surgery on June 29, 1983. She described the wearing of a brace for some weeks after the accident, the long course of medical treatment, the attendant pain and suffering, and her continued inability to do many things she had been able to do before the accident. Her medical expenses were in the total amount of $2,909.00, all paid by insurance. Additional surgery is anticipated for the removal of bone splinters. She made no claim for lost earnings, for she was unemployed.

Mr. Varney also testified with reference to his wife's inability to do things she had previously done, her medical treatment and convalescence. He estimated that he had lost earnings of $100.00 per shift for about ten shifts as a coal miner, losing work at times he had to take his wife for medical care.

Witnesses for the claimant included two Mingo County Deputy Sheriffs and a lifelong resident of the area where the accident occurred. Generally, they described the low-lying area of the highway, a long history of the blockage of a drain and accumulation of water and debris there during long or heavy periods of rainfall, other previous accidents caused by water standing on the highway, and of numerous telephone complaints to the respondent Department of Highways. Although the respondent would send a crew to open the drain upon such complaints, nothing appears to have been done to permanently alleviate the problem nor to warn the motorists.

The State is neither an insurer nor a guarantor of the safety of travellers on its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to charge respondent with negligence, actual or constructive notice of the highway defect is required. The Court is of the opinion that the claimants have established, by a preponderance of the evidence, that respondent was aware of the recurring hazardous condition; that respondent's failure to take appropriate action to eliminate the problem or to warn motorists constituted a failure to maintain the highway in a reasonably safe condition; that this negligence was the proximate cause of the subject accident. The Court finds no negligence on the part of Mrs. Varney in her operation of the vehicle.

Accordingly, the Court grants an award in the amount of $15,000.00 to Virgie Mae Varney and grants an award in the amount of $5,000.00 to William Ernest Varney.

Award of $15,000.00 to Virgie Mae Varney.

Award of $5,000.00 to William Ernest Varney.  