Mutnich v. Department of Highways

*127On October 8, 1982, claimant was driving his 1977 Cadillac El Dorado on Route 16 in Sprague, Raleigh County, West Virginia. He struck a sewer drain which claimant testified was about eight inches below the level of the pavement. His vehicle incurred damages in the amount of $530.94. The drain was located on the right edge of Route 16 next to a curb. Claimant testified that he drove Route 16 “practically every day,” but was not aware of the location of the drain. He stated that the drain was not visible from the surface of the road.

Evidence was presented to indicate that the drain was below the level of the pavement due to the resurfacing of the road. Photographs of the scene show that the drain is located off the travelled portion of the road. Charles W. Bragg, Assistant Maintenance Supervisor for Raleigh County, testified that the road is approximately 40 feet wide at the accident scene and that traffic travels about four feet from the drain.

This Court has previously held that the berm or shoulder of a highway must be maintained in a reasonably safe condition for use when an emergency occurs or when a motorist otherwise necessarily uses the berm. The location of the drain eight inches below the pavement did create an unsafe condition. However, the Court cannot find that claimant necessarily used the berm. W. Va. Code § 17C-7-1 provides in part: “Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway.” A roadway is defined in W. Va. Code § 17C-1-37 as “that portion of a highway improved, designed, or ordinarily used for vehicular traffic, exclusive of the berm or shoulder.” (Emphasis supplied.) The Court concludes, therefore, that claimant was also negligent, and that his negligence equalled or exceeded that of respondent. Thus, this claim must be denied. See Sweda vs. Dept. of Highways, 13 Ct.Cl. 249 (1980).

Claim disallowed.