
    
      OPINION ISSUED AUGUST 26, 1993
    
    KENNETH H. SMITH VS. DIVISION OF HIGHWAYS
    (CC-93-58)
    Claimant present in person.
    Glen A. Murphy, Attorney at Law, for respondent.
   PER CURIAM:

Claimant, Kenneth H. Smith, seeks an award of $600.00 from the Division of Highways for property damage sustained when his vehicle struck rocks from a rock slide which occurred on February 11, 1993, at approximately 7:30 p.m. on West Virginia Route 60 in Cedar Grove, Kanawha County.

From the evidence adduced at the hearing on May 5,1993, it appears that the claimant was traveling west on Route 60 driving his 1983 Cutlass Supreme at 40 miles per hour, when he came upon a rockslide that was covering the westbound lane of traffic. It was a very dark, rainy night. The claimant was unable to drive into the left-hand lane of traffic due to oncoming vehicles and he did not have time to stop his vehicle. Consequently, he drove over the rocks, causing damage to his vehicle. Three of the tires blew out, three rims were bent, three wire wheel hubcaps were destroyed, and tie rods had to be replaced. He had driven on this road frequently and he was aware that rock slides occurred. He stated this particular rock slide looked as if it had occurred within the past five minutes prior to the time that he came upon the rocks. He saw a warning sign posted on the road after the accident, but stated that he did not know if the warning sign had been there before the accident.

James Dingess, county supervisor for the respondent, testified that there were signs in the area prior to the day of the accident warning of the rockslide area. He stated that after the accident was reported to him that they went out and cleaned up the area.

This Court finds, after reviewing the record, that the respondent did not have actual or constructive notice of the fallen rocks and that upon receiving such notice, respondent acted in a timely manner to correct the hazardous condition. The respondent has attempted to provide warning to the traveling public of the potential hazard of fallen rocks by placing warning signs in both directions on the highway. As the claimant has failed to establish negligence on the part of the respondent by a preponderance of the evidence, this claim must be denied.

Claim disallowed.  