Wallen v. Department of Highways, 16 Ct. Cl. 119

Wallen v. Department of Highways

16 Ct. Cl. 119 | W. Va. Ct. Cl. | 1986

PER CURIAM:

This claim was originally filed in the names of Larry J. Wallen and Iva J. Wallen, his wife. At the hearing, the Court amended the style of the claim to reflect the sole owner of the vehicle., Larry J. Wallen, as claimant.

The claimant, on January 22, 1986, was operating his vehicle, a 1976 Mercury Cougar, in a southerly direction on U.S. Route 119, also known as Logan Boulevard, at or near an intersection of State Route 10 when rocks fell from a cliff. One of these rocks struck the claimant's vehicle as it passed. The damage totalled $522.80, of which the claimant's insurance paid $138.00. The claimant testified that U.S. Route 119 is a four-lane highway with a median. On the day of this *120incident, the roadway was damp. It was approximately 12:00 noon. The claimant was transporting his wife from her place of employment, the Save Rite Pharmacy, to the post office in Logan. He was proceeding at approximately 35-40 miles per hour. He was in the right lane of the two southbound lanes. The claimant observed that two rocks fell from the cliff, whereupon he switched his vehicle to the left lane to avoid these rocks. A third unobserved rock struck and damaged the vehicle in the right, rear quarter panel. The claimant testified that he passed the cliff in travelling this route, and rocks falling from the cliff were a common occurrence at this location. Three to four weeks prior to his accident, the claimant observed the respondent's crew cleaning up some rocks which had apparently come off the hill and were blocking all four lanes of the highway.

The claimant described the concrete barriers which the respondent had erected between the base of the cliff and the berm of the highway. On this particular occasion, the rock which struck the claimant's vehicle missed the barrier. The respondent was aware of the propensity of the rocks to fall from the cliff at this location as evidenced by the existence of the concrete barrier. The barriers indicate that the respondent has taken measures to remedy the dangerous condition of the falling rocks. The Court, then, is unable to find negligence on the part of the respondent, and the claim must be denied.

Claim disallowed.