
    
      OPINION ISSUED AUGUST 10, 1998
    
    
      CARLO MARCANTONIO VS. DIVISION OF HIGHWAYS
    (CC-97-166)
    Claimant represents self.
    Andrew F. Tarr, Attorney at Law, for the respondent.
   PER CURIAM:

The claimant brought this action for damage to his vehicle which occurred after it encountered a large depression on the respondent’s right of way in Wood County. For the reasons stated more fully below, the Court is of the opinion that the claimant is entitled to an award.

The incident giving rise to this claim occurred on September 4, 1996, at approximately 8 a.m. The claimant’s wife, Candice Marcantonio, was driving the claimant’s 1988 Plymouth Voyager van on Highland Avenue (WV Route 14) in Williamstown to the Farm Fresh market. Highland Avenue in this area is a two-lane paved road. The evidence adduced at hearing was that as Ms. Marcantonio turned left to enter the market, the right front wheel dropped into a large depression on the edge of the pavement by a drain grate. The vehicle sustained damage to the frame, axle and front end. The claimant submitted into evidence repair and towing bills in the amount of $1,262.67. The claimant had liability insurance only.

The drain grate in question was located on a sidewalk area abutting the paved road. Traffic passed over this area in order to access the Farm Fresh market. The evidence indicated that the respondent had recently resurfaced the road with the result that there was a significant drop of approximately six inches between the paved road surface and the grate. Ms. Marcantonio testified that she had driven over the grate on prior occasions before the resurfacing without incident. The respondent’s position was that although the grate was located within its right of way, that the Farm Fresh market was contractually responsible for maintaining the grate.

The Court finds this position untenable. The Court is of the opinion that the respondent knew or had reason to know that this depression created a risk of property damage to passing motorists. Notwithstanding the state’s contention that there is an indemnity, hold harmless, or other contractual provision absolving it of liability, the evidence established that area in question was located squarely within the respondent’s right of way.

Accordingly, the Court finds that respondent was negligent in its maintenance of the right of way on WV Route 14, and, further, the Court is of the opinion to and does make an award to the claimant for the damage to his vehicle.

Award of $1,262.67.  