
    Opinion issued September 20, 1979
    KYLE KING vs. DEPARTMENT OF HIGHWAYS
    (CC-79-39)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

On Saturday, January 6, 1979, at about 9:00 p.m., the claimant’s 1977 Monte Carlo automobile was damaged in the amount of $132.09 when the right rear wheel struck a catch basin and a defective and broken curb at the southwest corner of the intersection of Washington Street and Michigan Avenue in the City of Charleston, West Virginia. The claimant testified that he had been proceeding east on Washington Street (U.S. 60) and was attempting to make a right turn onto Michigan Avenue and then proceed in a southerly direction on that street. The roads at the time were snowy and slick. Mr. King candidly admitted in his testimony that he was aware of the existence of what he described as a hazard, but he indicated that another vehicle was proceeding north on Michigan Avenue, and it was necessary for him to make a sharp turn onto Michigan Avenue in order to avoid hitting this vehicle.

The testimony further revealed that, at or about this same time, certain construction work was being performed by E. L. Harris & Sons on the lot at the southwest corner of this intersection, which work may or may not have included the repair of the broken curb above the subject catch basin. In any event, it was not established who, as a matter of law, was responsible for the repair and maintenance of the broken curb.

Without discussing what would appear to the Court to be contributory negligence on the part of the claimant, it is fundamental that any claimant must establish negligence by a preponderance of the evidence. Primarily, the claimant has failed to establish a duty on the part of respondent to maintain this curb, and secondly, has failed to establish a negligent breach of any such duty. For these reasons this claim must be disallowed.

Claim disallowed.  