South Charleston couple says DOH has destroyed home, created health woes

CHARLESTON -- A South Charleston family says negligent work by the state Division of Highways has destroyed their home and caused them health problems.

In a lawsuit filed Jan. 25 in Kanawha Circuit Court, Mark and Deborah Jones claim the DOH "reworked" drainage on Long Branch Road (Kanawha 15/3) in the 1990s. That work included replacement of culverts.

They contend the acts done by the defendant, its agents, servants and employees are continuing.

"Water runoff was substantially and irrevocably increased through the plaintiffs' home site and property, all of which continues today in spite of the plaintiffs efforts to have the defendant address the same," the suit claims. "The damages sustained by these plaintiffs occur each day and the effects of the defendant's acts and omissions will be as severe, if not worse, in the future."

The couple, being represented by attorney James M. Cagle, say they have brought the matter to the attention of the DOH on numerous occasions without remediation.

In the suit, they say damages include erosion, sinkholes and outright collapse of the plaintiffs' yard; water damage and destruction of the structure of the plaintiffs' home; mold and mildew inside of the plaintiffs' home rendering it unsafe, unhealthy and ultimately uninhabitable by these plaintiffs or by anyone else; past, present and future health consequences resulting from the mold exposure, which includes, but is not limited to, respiratory ailments and vision impairment.

"Essentially, the plaintiffs have lost their home and surrounding property and have suffered ill health effects proximately caused by the negligence of the defendant," the suit alleges.

The Jones' say the DOH was negligent:

* In making their calculations concerning the flow of water from above the plaintiffs' property and across the plaintiffs' property;

* In their design of the culverts and the capacity of the culverts as constructed above the plaintiffs' property;

* In their construction of culverts which were insufficient to address the water runoff from above the plaintiffs' property and across the plaintiffs' property;

* In their failure to adequately address or to remediate the problems of those plaintiffs which were caused by defendant's own negligence after the same was brought to the defendant's attention.

"The defendant owed a duty to the plaintiffs either not to alter the flow of surface water or, if altered, to properly evaluate the extent and consequences of the alteration so as not to harm others, including these plaintiffs," the suit claims. "The defendant has breached this duty in connection with the above-described acts and omissions.

"The foregoing acts and omissions of the defendant constitute a continuing trespass which is tantamount to the continuous physical taking of the plaintiff's property."

The couple also says the problems have created a nuisance. They also say they've been a victim of annoyance, inconvenience, discomfort and depreciation in the value of their property or its use.

They seek compensatory damages to be determined by a judge and jury.

The couple also filed the suit on behalf of their three minor children Kylie Gobel, Dylan Jones and Karey Jones.

The case has been assigned to Circuit Judge Tod Kaufman.

Kanawha Circuit Court case number: 06-C-128