Payne v. Division of Highways

Claimant brought this action for personal injuries and property damage sustained when her vehicle was struck by a mudslide when she traveling eastbound on Route 83 in Yukon. Route 83 is a road maintained by respondent in McDowell County. The Court is of the opinion to deny this claim for the reasons more fully set forth below.

*190The incident giving rise to this claim occurred on May 13, 1998. On the day in question, claimant was making a return trip from the grocery store in her 1987 vehicle while traveling eastbound on Route 83 in Yukon. Route 83 is two-lane road, with a road surface width of sixteen to eighteen feet and with guardrail protecting travelers from the forty-five to fifty foot cliffs on one side of the road. Earlier in the day, claimant had traveled along the road, and she noticed people working on the road. As claimant made her return trip from the store, she was driving uphill and around a curve in the road when suddenly her vehicle was caught in a mudslide. The impact of the mudslide pushed her vehicle against the opposite side of the road. Claimant was trapped inside the vehicle. Another vehicle pulled claimant’s vehicle out of the slide, and claimant’s cousin contacted the McDowell Ambulance Authority. Claimant sustained personal injuries, but refused medical assistance and remained on the scene for about one-half hour. Eventually claimant’s husband drove her to Bluefield Regional Hospital for treatment.1 According to claimant, after the incident, the mudslide “just went away.” During claimant’s frequent trips on this road in the past, she could not recall observing any mudslide incidents in this particular area. Photographic evidence of the vehicle and of claimant’s personal injuries were taken the following day. Once the vehicle was brought back to claimant’s residence, it was considered “totaled” and sold for salvage.

The position of respondent was that it did not have notice of the mudslide on Route 83 in Yukon. Respondent acknowledged that road work had been done approximately one to one-and-a- half miles from the scene of claimant’s incident. According to respondent, there are no records of a mudslide having occurred occurring in this particular area on the day in question.

The evidence adduced at the October 28, 1999, hearing failed to establish that respondent had notice that a mudslide was imminent on Route 83 in Yukon. While the Court is of the opinion that claimant was involved in an incident caused by a mudslide, that fact alone is insufficient to establish negligence on behalf of respondent. Consequently, there is insufficient evidence of negligence upon which to base an award.

In view of the foregoing, the Court is of the opinion to and does deny this claim.

Claim disallowed.