
    
      OPINION ISSUED OCTOBER 25, 2006
    
    JOYCE PENNINGTON and LARRY PENNINGTON VS. DIVISION OF HIGHWAYS
    (CC-05-255)
    Claimants appeared pro se.
    
    Andrew F. Tarr, Attorney at Law, for respondent
   PER CURIAM:

Claimants brought this action for vehicle damage which occurred as a result of their 2002 Ford Escort striking a rock while traveling westbound on Route 50 in Harrison County. Route 50 is a road maintained by respondent in Harrison County. The Court is of the opinion to deny this claim for the reasons more fully set forth below.

The incident giving rise to this claim occurred at approximately 8:30 p.m. on March 27, 2005, a rainy evening. Route 50 is a four-lane road at the location of claimants’ accident. Ms. Pennington testified that she was driving in her right lane at approximately fifty-five to sixty miles per hour due to the wet conditions when she saw a large rock in her lane of travel. She stated that she attempted to miss the rock but she could not avoid it. Claimants’ vehicle struck the rock and sustained damage to the passenger side rear rim totaling $101.38.

The position of the respondent was that it did not have notice of the rock on Route 50 prior to claimants’ incident. Paul Lister, an Investigator for respondent, testified that he was unable to find any reports of rock falls in the area of the incident herein prior to or on the date of this incident. He further testified that there are no areas along this section of Route 50 that are marked as rock fall areas.

It is a well-established principle that the State is neither an insurer nor a guarantor of the safety of motorists upon its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In rock fall claims, this Court has held that the unexplained falling of a rock onto a highway without a positive showing that respondent knew or should have known of a dangerous condition posing injury to person or property is insufficient to justify an award. Coburn vs. Dept. of Highways, 16 Ct. Cl. 68 (1985).

In the present claim, claimants have not established that respondent failed to take adequate measures to protect the safety of the traveling public on Route 50 in Harrison County. While the Court is sympathetic to claimants’ plight, the fact remains that there is no evidence of negligence on the part of respondent upon which to base an award.

In accordance with the findings of fact and conclusions of law stated herein above, the Court is of the opinion to and does deny this claim.

Claim disallowed.  