
    
      Opinion issued October 10, 1980
    
    LEE ROY HAMILTON vs. DEPARTMENT OF HIGHWAYS
    (CC-80-85)
    
      Douglas Hamilton, Attorney at Law, for respondent.
   RULEY, JUDGE:

On December 13, 1979, at approximately 7:40 a.m., the claimant was driving his 1978 Pontiac automobile east on Route 60 toward Huntington in Mason County when he came upon a flooded portion of the road. He applied his brakes, but his car hydroplaned into the car in front of him, which was stopped in the water. The claimant was traveling between 40 and 45 miles per hour before he hit the water, and his car was damaged to the point of being a total loss. The claimant seeks to recover $3,739.00, which is the book value of his automobile, plus towing charges, minus $500.00 the claimant received for salvage.

According to the claimant’s undisputed testimony, the weather conditions on the morning of December 13, 1979, were wet and foggy, and it was raining at the time of the accident. He described the flooded portion of the road as 200 to 350 yards long and six to ten inches deep. He further testified that this condition of periodic flooding had existed for at least three years and had caused many accidents. At other times, when the road had flooded, various warning devices were erected by the Department of Highways and the State Police, but the claimant saw no such devices on this particular morning. The claimant also testified that he traveled this road every day and was very familiar with this flood hazard.

There can be little doubt of negligence on the part of the respondent in permitting such a dangerous hazard to exist for a period of years with no corrective action. However, the claimant was well aware of the hazard, had observed it often, and, in the exercise of due care, should have anticipated the hazard in view of the weather. Applying the doctrine of comparative negligence, it appears to the Court that negligence causing the accident should be allocated 25% to the claimant and 75% to the respondent. Bradley v. Appalachian Power Co., ....W.Va., 256 S.E.2d 879; Atkinson v. Dept. of Highways, 13 Ct.Cl. 18 (1979). As the claimant is seeking to recover $3,739.00,75% of that sum, or $2,804.25, should be, and is hereby, awarded.

Award of $2,804.25.  