
    
      OPINION ISSUED OCTOBER 30, 1985
    
    TERESA R. ALTOMARE AND SAMUEL ALTOMARE VS. DEPARTMENT OF HIGHWAYS
    (CC-77-111)
    William B. Carey, Attorney at Law, for claimant.
    Henry C. Bias, Deputy Attorney General, for respondent.
   WALLACE, JUDGE:

On July 7, 1975, claimant, Teresa R. Altomare, accompanied by her daughter-in-law and sister-in-law, was driving a 1969 Oldsmobile station wagon belonging to both claimants in a northerly direction on W.Va. Route 7, also known as South Fork Road, entering the town of Moorefield, West Virginia. At a point near the intersection of South Fork Road and Paskell Drive, claimant Teresa R. Altomare suddenly lost control of the vehicle, veered to the right across the berm into a drainage ditch and the vehicle flipped over and landed on its wheels. In explaining what happened, Mrs. Altomare testified:

I started driving and drove down on this beautiful highway and all of a sudden I felt a quiver in the steering wheel like, you know, and I had power brakes and I just tried to tap them a little bit so I could come to a safe stop but what happened was that I pulled over and the car veered to the right and the ditch was there and I just went over and I thought I went over, I don't know how cars, how things happen. I'm not familiar with that but I went over and landed on.the wheels straight up.

Claimant sustained permanent injuries from the accident and seeks an award of $750,000.00. Claimant alleged that the respondent was negligent for failing to maintain the drainage ditch in proper condition and for failing to install a guard rail between the road and drainage ditch.

Eugene Brand, County Supervisor for the respondent at the time of the accident, testified that the basic character of the ditch had not changed over the years and had been maintained in the same manner as other like drainage ditches. Mr. Brand also testified that respondent used the guard rail standards recommended in guidelines established by the Federal Highway Administration and under such guidelines, guard rails would never have been erected at the scene of this accident.

From the record, there was no evidence of negligence on the part of the respondent presented which was the proximate cause of the accident. Neither the maintenance of the drainage ditch nor the lack of a guard rail caused the accident. The drainage ditch was maintained as any other in this State, and the guard rail standards were followed. Accordingly, the Court is of the opinion to and does disallow the claim.

Claim disallowed.  