
    
      OPINION ISSUED DECEMBER 20, 1989
    
    KARL E. KOENIG AND JONI CAROL KOENIG VS. DEPARTMENT OF HIGHWAYS
    (CC-87-220)
    
      W. Henry Sanders, III, Attorney at Law, for claimants.
    Jeff Miller, Attorney at Law, for respondent.
   GRACEY, JUDGE:

These claims were consolidated for hearing. The two accidents which are the subject of these claims occurred on February 28, 1987, between 7:00 and 7:30 p.m. Both accidents involved a rock fall which occurred on W.Va. Route 20 approximately 30 yards north of the Bluestone Bridge. Claimants allege respondent failed to maintain the area to prevent rock falls. As a result of this failure, claimant Joni Carl Koenig's vehicle was struck by falling rocks causing claimant Karl Koenig, who was driving, to lose control of the vehicle. As a result of the contact with the rocks, the vehicle was damaged beyond repair and Joni Carol Koenig suffered injuries to her back. Claimant Virginia L. Ellison Foss struck the rocks some minutes after the rock fall, lost control of her vehicle whereupon the vehicle knocked over two wooden posts and then went over a cliff. It landed at the edge of the Bluestone Lake. She suffered injuries to her head and back. Her vehicle was also damaged beyond repair.

Respondent contends that the claimants were both aware of the potential of rocks to fall in this particular stretch of Route 20, and that the area was, in fact, posted as a falling rock area.

The claimants Koenig were traveling from their home in Hinton proceeding to Concord College in Athens on February 28,1987, at approximately 7:00 p.m. to 7:15 p.m. It was a dark, rainy night with patchy fog. Claimants were traveling in claimant Joni Carol Koenig’s 1977 Chevrolet Malibu Station wagon. It had been raining off and on all day. As claimants proceeded through the three-mile stretch from the Bluestone Dam to the Bluestone Bridge, claimant Karl Koenig observed rocks the size of golf balls and baseballs striking the pavement. He then noticed a large, dark object which the vehicle struck. The object was a large rock described as being the approximate size of a small compact automobile. Claimants' vehicle rolled over other rocks in the left lane and came to a stop in a pull-off area on the left side of the road. Claimants got out of their vehicle and attempted to wave at on-coming vehicles approaching from the south. An individual in a pick-up truck stopped and then left for the driver to send a tow truck. Claimants were standing in the pull-off area with their backs to the road and were observing the extent of the rock fall. Claimant Karl Koenig decided to get some fuzees from his vehicle to place at the scene to warn drivers approaching from the south. When he turned around, he saw a vehicle approaching at 35 to 40 miles per hour. He was unable to warn the driver of the rock fall. He watched the vehicle strike the boulder and veer to the driver's right side of the road where the vehicle went over two wooden posts, teetered on the edge of the cliff, and then went end over end over the cliff. The vehicle landed against a tree several feet from the edge of the Bluestone Lake.

The vehicle which went over the cliff was driven by claimant Virginia L. Ellison Foss. She was proceeding from her home in Athens to Salt Sulphur Springs. She was alone in her vehicle, a 1980 Subaru, she described the weather as very dark, rainy and foggy. She had her vehicle lights on low beam as she approached the rock fall area. She noticed lights from a vehicle on the right side of the road, but assumed someone had just pulled off into one of the pull-off areas. She was driving at approximately 35 to 40 miles per hour. She slowed down when she saw the lights. Her vehicle then struck debris and rocks in the road and began to slide. She applied the brakes in an attempt to stop her vehicle. The vehicle hit the large rock which was covering the road. It then went to the right, struck and broke two wooden posts, and went over the cliff landing at the edge of the Bluestone Lake.

Claimant Joni Carol Koenig went to Summers County Hospital that evening for treatment. She was released that same night. She suffered injuries to her lower back. She was treated by a chiropractor for back pain off and on until September 1987. She still experiences pain and discomfort in her back. She also suffers from severe headaches. She is unable to perform many household tasks such as using the vacuum or carrying heavy loads of laundry. She also experiences pain after sitting too long. She has trouble sleeping and uses a heating pad on her back at night. She is of the opinion that she needs further medical treatment for her back problems. Her medical bills for the hospital and doctor visits were in the amount of $691.00. Her vehicle was totaled. She valued her vehicle at $1,075.00. It was taken to an automobile dealer, but she was unaware of receiving any salvage value for the vehicle.

Claimant Virginia L. Ellison Foss was taken to Summers County Hospital after the accident. She was transferred to Princeton Community Hospital where she was treated for her injuries. She remained there for one week. She suffered a concussion, lacerations and bruises, and injury to two vertebrae in her back. She wore a neck brace and back brace for approximately six and one-half months. She continues to experience pain in her back and her neck. She is unable to perform many normal household tasks. She also experiences numbness in her arms. Her medical bills were in the amount of $3,500.00. Her vehicle was totaled. She received $4,200.00 from her insurance carrier for this loss. She also lost $71.00 in wages from a part-time position she had at Concord College.

West Virginia Route 20 at the scene of these accidents was described by the witnesses as being a two-lane road, fairly level and straight in this area. There is a high wall approximately 90 to 100 feet high on one side which is made up of layers of shale, rock, and dirt with trees growing out of the hillside. The lake side of the road has a cliff which varies in height from 200 to 500 feet. The Bluestone Lake is at the bottom of the cliff. There are pull-off areas for tourists along the cliff side of Route 20. There are also wooden posts on this side and areas of concrete posts with wire strung between the posts. The wooden posts were erected by an agency other than respondent. The wooden posts do not serve as guardrails. The concrete posts with wire are guardrail structures. Both respondent and claimants were aware of the propensity of rock falls to occur in this area, especially during freeze and thaw periods of weather. There are falling rock signs posted for the traveling public at intervals along this stretch of road.

However, the presence or lack of these signs on February 28, 1987, is not relevant in these particular claims as the claimants were familiar with the potential hazard of rocks falling from the steep hillside adjacent to Route 20. In fact, a former Sheriff of Summers County, lames H. Blume, described this area of Route 20 as "... the most dangerous stretch of road" when he described the rock fall areas in Summer County.

A geologist employed by respondent, John M. O'Neil, described the terrain of the hillside as having "very weak and incompetent shales and sandstones which are highly susceptible to weather and erosion. The most effective cure for preventing rock falls would be benching the hillside, which would be a very costly project for respondent to undertake.

The Court is of the opinion that the evidence substantiates the fact that this is a hazardous area for rock falls. Respondent is well aware of this fact. This Court previously found respondent liable for a rock fall accident which occurred in this area. See Smith v. Dept. of Highways, 11 Court of Claims 221 (1977). In that claim the Court held that "... for the respondent to do nothing more than to merely patrol the road, known for many years to be hazardous, is not sufficient to remove a known danger." The Court is still of that same opinion. The Court finds that respondent was negligent in the maintenance of Route 20 and this negligence was the proximate cause of these two accidents.

Claimants Koenig were placed in a position of danger when rocks fell down around them as they were driving on the road. They are entitled to recover for their losses as a result of this incident. Therefore, the Court makes an award to Karl Koenig in the amount of $3,000.00 and an award to Joni Carol Koenig in the amount of $7,000.00 for her injuries.

Claimant Virginia L. Ellison Foss came upon the scene after the rocks had fallen. She was aware of the propensity of falling rocks in the area. It is the opinion of the Court that she was operating her vehicle in an unsafe maimer for the conditions then and there existing, i.e., rainy and foggy. The Court finds that she was also negligent, and, in applying the doctrine of comparative negligence, the Court determined her damages for her injuries and work loss in the amount of $17,571.00, but reduces this amount by forty percent for an award of $10,542.60.

Accordingly, the Court is of the opinion to and does make awards to the claimants as indicated hereinabove.

Award to Karl E. Koenig of $3,000.00.

Award to Joni Carol Koenig of $7,000.00.

Award to Virginia L. Ellison Foss of $10,542.60.  