
    
      Opinion issued December 7, 1982
    
    ROBERT C. SCHUMACHER vs. DEPARTMENT OF HIGHWAYS
    (CC-82-55)
    Claimant appeared in person.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

This claim is for damage to claimant’s automobile in the amount pf $221.02. Claimant’s son was driving the car on January 5, 1982. He was making a right-hand turn from Hickory Road onto State Route 214 in Charleston, when the vehicle struck a pothole. The right front and rear tires were ruined, both rims bent, one beyond repair, and the front end went out of alignment.

Claimant’s son testified that he travelled this route about once a week, but had not noticed the hole before. There was no oncoming traffic as he made the turn. The hole was located on the berm next to the road. It was not visible looking over the hood of the car, and, according to claimant’s son, he thought he was on the road.

The berm or shoulder of a highway must be maintained in a reasonably safe condition for use when the occasion requires, and liability may ensue when a motorist is forced onto the berm in an emergency or otherwise necessarily uses the berm of the highway. 39 Am. Jur. 2d Highways, Streets, and Bridges §488. A pothole approximately eight inches deep existed along the berm. The Court cannot conclude however, that claimant’s son was forced onto the berm or necessarily used it. It appears that claimant’s son was guilty of negligence which equalled or exceeded any negligence of which respondent may be guilty. The claim must be denied. Sweda v. Dept. of Highways, 13 Ct.Cl. 249 (1980).

Claim disallowed.  