
    
      OPINION ISSUED DECEMBER 3, 1987
    
    BONITA M. KOUNS, ADMINISTRATRIX OF THE ESTATE OF MICHAEL WAYNE KOUNS, DECEASED VS. DEPARTMENT OF HIGHWAYS
    (CC-86-215)
    Larry D. Taylor, Attorney at Law, for claimants.
    Nancy J. Aliff, Attorney at Law, for respondent.
   HANLON, JUDGE:

Claimant, Bonita M. Kouns, Administratrix of the Estate of Michael Wayne Kouns, filed this claim in the amount of $325,000.00 against the respondent for the wrongful death of her husband, Michael Wayne Kouns, which occurred when the decedent and his uncle were in a single-car accident on January 31, 1985.

At the time of the accident, Michael Wayne Kouns was driving his mother's vehicle from Marmet to Whitesville, on State Route 94. He was accompanied in the automobile by Edgar Stacy, his uncle. The weather was in a freeze-thaw cycle. As he approached Hernshaw, in the vicinity of Delcie's Tavern, he lost control of the automobile, crossed both lanes of Route 94, and struck trees located across the highway and on the opposite side of Route 94. Mr. Kouns dies as a result of the accident. It is alleged that the automobile struck ice which was on the berm adjacent to Route 94 and that this was the proximate cause of the accident.

The vehicle was proceeding in a southerly direction at a speed in excess of 55 miles per hour. The speed limit at that location is 45 miles per hour. There is a hillside behind Delcie's tavern, the site of the accident. This hillside is not on property which is owned or maintained by respondent. The record revealed that water runs down from the hill and collects in front of the tavern. There is a culvert located about 150-175 feet up Route 94 from Delcie's Tavern. Ice had accumulated at that location in previous winters. The ice was estimated to be approximately 12-18 inches thick on the day of the accident.

There was conflicting evidence concerning whether or not the automobile which the deceased was operating actually struck the ice. One witness to the incident testified that it did. The trooper who investigated the accident testified that he observed no physical evidence showing that the vehicle had struck the ice. More importantly, an individual who was following Mr. Kouns, with the intention of repossessing the Kouns vehicle, testified that he did not observe the Kouns vehicle strike the ice. He stated that Michael Kouns lost control of the automobile before reaching the ice.

Several individuals testified that they had made complaints to respondent concerning the water in the vicinity of Hernshaw. However, when queried, it was learned that the complaints were not specifically related to the accident site, nor were these complaints voiced in 1985 or the previous winter.

The Court finds no reliable evidence that the accumulation of ice on the highway was the proximate cause of the accident. The deceased was travelling at a rate of speed that was excessive for the driving conditions at the time in addition to being about the legally mandated speed limit. There was no credible evidence to support the allegation that claimant's accident was caused by his vehicle striking the ice. To make an award in this case, the Court would be obliged to conclude that respondent's negligence was the sole proximate cause of Michael Kouns' death. There is no credible evidence to support such a conclusion.

Claim disallowed.  