Bender v. Division of Highways

The claimant brought this action for damage to his 1982 Chevrolet pick-up truck, which the claimant alleges occurred because of a slip on a road maintained by the respondent in Braxton County.

The incident giving rise to this claim occurred on March 21, 1997, at approximately 11:30 p.m. The claimant was driving northbound on Copen Road (County Route 2) near Burnsville. The weather was clear and dry. County Route 2 in this area is a narrow second priority road. It is approximately 15 feet wide with shoulders between approximately two to four feet in width. The claimant testified that two vehicles can pass only by dropping onto the shoulder. The claimant was driving approximately 25 miles per hour behind another car, which dropped onto the shoulder apparently with the purpose of allowing another vehicle to pass. When he, too, steered onto the shoulder, it then gave way. When he tried to regain control of his truck, it flipped over and plowed through a fence, rolling approximately 100 feet into a field.

Claimant sustained no permanent physical injuries. The truck was a total loss. He had liability insurance only. Claimant seeks an award in the amount of $3,500.00, representing the loss of the vehicle as well as the cost of repairing the fence.

The claimant introduced several photographs into evidence taken approximately eight days after the accident. These photographs depicted the road as quite narrow and the drop-off into the field quite steep. However, the Court is of the opinion that there is insufficient evidence in the photographs, or in any of the testimony, substantiating that the road slipped from the weight of claimant’s truck or that the slip occurred as a result of the integrity of the road or shoulders. Nor does the record reveal any other evidence of negligence on the part of the respondent upon which to justify an award.

While sympathetic to the claimant’s position, the Court will not speculate as to what caused the claimant to lose control of his vehicle. In view of the foregoing, the Court is constrained by the evidence to deny the claim.

Claim disallowed.