A Floyd County resident is suing the Kentucky Transportation Cabinet, seeking payment for damages caused by rockfall on Ky. 321 in 2015.

Cow Creek resident Romeo Delrosario, represented by attorney Jerry Patton, filed a lawsuit recently against the Kentucky Transportation Cabinet’s Department of Highways and the Kentucky Claims Commission, appealing a decision made by the commission this year.

The commission entered a decision on April 26 in a claim Patton filed on behalf of Derosario, and Patton argues in the lawsuit that the decision does not comply with state law and is not supported appropriately by facts established in the case.

In accepting a recommendation of a hearing office, the claims commission denied Delrosario’s request for payment of damages, Patton asserts, and in doing so, the commission “rubber stamped” the recommended order in the case and “acted without, or in excess of its power.” 

Patton alleges that Delrosario was traveling on Ky. 321 in November 2015 when his vehicle hit a large rock that had fallen off the adjoining hillside onto the roadway.

Patton alleges in the lawsuit that, “Numerous rock falls have occurred in the same location in the past, placing the Cabinet on notice of the very dangerous potential for rock falls in that area.”

He quoted transcripts of testimony provided by a Kentucky Transportation Cabinet employee who noted there have been “multiple rock falls” there, as well as testimony from law enforcement officers who made similar assertions and reported that the Cabinet was notified. 

“The Cabinet was placed on previous notice of the dangers, hazardous condition of the roadway, and failed to take any remedial action to prevent the same from occurring, and therefore, was negligent in the performance of its duties,” Patton wrote. “The Hearing Officer appeared, with all due respect, to ignore all of the testimony referred to above … (He) appeared to base his decision upon the fact that there were falling rock signs posted in the area.”

Patton also cited testimony of District 12 Civil Engineer Matt Moore, who reported remedial measures to prevent rockfalls on Ky. 321 had been placed on the state’s six-year road plan “and an unscheduled needs list,” but had not been implemented or approved by the state legislature. 

Derosario asks Floyd Circuit Court to set aside the claims commission order and he seeks compensatory damages, which exceed the maximum amount allowed by law, $250,000.

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