Phillips v. Division of Highways

The claimant brought this action for damage to her 1989 Oldsmobile Cutlass, which occurred after the vehicle struck a drain inlet on MacCorkle Avenue in Charleston, Kanawha County. The Court is of the opinion to deny the claim as stated more fully below.

The incident giving rise to this claim occurred on August 27, 1997. The claimant was traveling westbound on Route 61 (MacCorkle Avenue) in Kanawha City. The evidence adduced at hearing was that the claimant turned right off Route 61 at the 35th Street Bridge to access a farmer’s market. Whereupon, the claimant’s vehicle struck a piece of metal embedded in a drain inlet, resulting in two flat tires on the passenger side. The claimant submitted into evidence repair and towing $315.91. The claimant’s insurance deductible was $500.00.

The claimant testified at hearing that she had just turned off the 35lh Street Bridge westbound on MacCorkle Avenue and made an immediate turn into the market’s parking lot. The metal was described as square, without any asphalt or concrete apron or buffer, and was embedded in the drain inlet.

The evidence established that the respondent was not responsible for maintenance of the curb in question, and that the City of Charleston was responsible for curbs and sidewalks. The evidence further indicated that the defect complained of would have been part of the sidewalk area and would not have been within the regularly traveled portion of the highway. Therefore, in view of the foregoing, the Court finds that there is insufficient evidence of negligence on the part of the respondent upon which to justify an award.

Claim disallowed.