Bole v. Division of Highways

The claimant brought this action for damage to her 1992 Oldsmobile Cutlass, which occurred after the vehicle encountered broken pavement along the edge of a road maintained by the respondent in Ohio County.

The incident giving rise to this claim occurred on January 30, 1998, at approximately 9 p.m. The claimant was driving on Dixon’s Run Road (County Route 29) near US Route 40 in the vicinity of Valley Grove. Route 29 in this area is a narrow two-lane paved road that is low priority in terms of maintenance. The evidence adduced at hearing established that the claimant allowed her vehicle to drop off the pavement onto the shoulder, resulting in a flat tire and bent wheel rim. The claimant submitted into evidence repair bills in the.amount of $127.42. The claimant had a $250.00 insurance deductible.

The claimant submitted into evidence a number of photographs establishing that the shoulder and berm area in the vicinity of her accident were in obvious need of repair. The photographs depicted jagged and broken pavement and a significant drop off along the berm area. The claimant testified that there was no oncoming traffic and there was apparently no other reason for the claimant to proceed onto the berm.

*142The general rule established by this Court is that when a motorist voluntarily proceeds onto the berm, he takes the berm as he finds it. However, when a motorist is forced to use the berm in the event of an emergency, he is entitled to rely upon it and the respondent may be held liable for failure to maintain the berm and shoulder area in reasonably safe condition. Meisenhelder vs. Dept. of Highways, (CC-88-149), unpublished opinion issued August 10, 1990. The evidence clearly establishes that the berm in question was in disrepair. However the Court is of the opinion that claimant’s negligence in failing to properly maintain control of her vehicle was equal or greater to any negligence on the part of the respondent. Therefore, in accordance with the principles of comparative negligence, the Court does hereby deny the claim.

Claim disallowed.