
    
      Opinion issued May 19, 1983
    
    LOIS V. HAYNES AND E. ROBERT HAYNES vs. DEPARTMENT OF HIGHWAYS
    (CC-80-415)
    
      J. P. McMullen, Jr., and Charles D. Bell, Attorneys at Law, for claimants.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   RULEY, JUDGE:

On December 21, 1978, at about 10:30 p.m., Lois V. Haynes was a passenger in an automobile being driven by Yonhyong Maidens. They were traveling west on W.Va. Route 27 towards Wellsburg, Brooke County, West Virginia. As they approached an intersection called Brady’s Ridge intersection, at a speed of approximately 25-30 mph, they encountered ice on the road. Mrs. Maidens lost control of the car, which struck a guardrail and then went about 200 feet down a steep hillside. Mrs. Haynes suffered serious permanent injuries as a result of the accident. Claimants allege that the respondent knew that ice would accumulate at that place on Route 27 and that the respondent’s failure to provide proper drainage or warn motorists of this condition constituted negligence. Lois Haynes claims damages in the amount of $200,000.00 for her injuries. Her husband, Robert Haynes, claims $50,000.00 for medical expenses and loss of the society, pleasure, services and consortium of his wife.

Mrs. Haynes sustained injuries to her spine, legs, arms and nervous system. She was initially hospitalized from December 22, 1978 until March 3, 1979, and twice briefly in October and November, 1979. She continues to have difficulty walking and has significantly impaired use of her arms. Dr. Reza P. Asli, one of her treating physicians, reported, “I, therefore, believe that Mrs. Haynes is going to remain with significant degree of permanent neurological deficit which would incapacitate her for all kind of gainful employment or any significant physical activities.” Her medical expenses were stipulated to be $17,859.29.

Earl Miller, a member of the Franklin Volunteer Fire Department, testified that he was following Mrs. Maidens’ vehicle on the night of the accident. He observed the automobile go out of control and over the embankment, so he returned to the Fire Department for help. He estimated that there was several hundred feet of ice on the road at and near the accident site; Route 27 had been clear to the east. Daniel Gilchrist, a Brooke County commissioner in December 1978, testified that he had personal knowledge of complaints made to respondent concerning ice at the place of the accident before it occurred. Respondent’s witness, John Isinghood, a road patrolman during the winter, testified that respondent was aware that the accident site was hazardous, and gave it special attention. In view of the evidence, the Court is constrained to conclude that the respondent was negligent in failing to take reasonable measures to prevent the ice or to warn approaching motorists of that hazard.

In view of the nature and extent of the injuries incurred, we feel that an award of $65,000.00 to Mrs. Haynes is just. We also make an award of $5,000.00 to Mr. Haynes. The record discloses, however, that the claimants have received $20,000.00 from Mrs. Maidens’ insurance carrier. The respondent is entitled to a set-off in that amount, so we accordingly reduce the award by $20,000.00.

Award of $50,000.00.  