Miller v. Division of Highways

The claimant brought this action for damage to his 1985 Pontiac which occurred after the vehicle struck a rock on WV Route 2 in Marshall County.

The incident giving rise to this claim occurred on July 30, 1998, at approximately 4:30 p. m. The claimant was driving northbound on Route 2 just north of Consolidated Coal Company. The weather was rainy. Route 2 in this area is a heavily traveled two lane road with a steep embankment bordering the northbound lane. It is a known rock fall area and there are “Falling Rock” warning signs in the area for northbound and southbound traffic. The evidence adduced at hearing established that a number of rocks fell from the hillside, one of which struck the claimant’s vehicle on the driver’s front side. The claimant introduced a repair estimate in the amount of $2,428.24. The claimant had liability insurance only. He seeks an award of $1,500.00, representing the approximate fair market value of the vehicle.

Photographs introduced by the claimant established that the rock in question was quite large, approximately the size of a tire. The respondent’s evidence established that there were three rock fall warning signs in the area, including one for northbound traffic in the vicinity of the coal company’s office. It is well established that the State is neither an insurer nor a guarantor *151of the safety of motorists upon its roads. Adkins vs. Sims, 46 S.E.2d 81 (1947). It has been the rule of this Court that in order to hold the respondent liable for road defects of this sort, the claimant must prove that the respondent had actual or constructive notice, and that generally, the unexplained falling of a rock, without more, is insufficient evidence upon which to justify an award. Coburn vs. Dept. of Highways, 16 Ct. Cl. 68 (1986). Therefore, in view of the foregoing, the Court is constrained by the evidence to deny the claim.

Claim disallowed.