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West Virginia Court of Claims

Volume Number: 29
Category(s): BERMS
Opinion Issued October 26, 2011
SAMUEL S. STEWART AND GERTRUDE STEWART
VS.
DIVISION OF HIGHWAYS
(CC-09-0329)
     Claimants appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimants brought this action for vehicle damage which occurred when their 2007 Hyundai Sonata struck a hole in the road on US Route 60 East in Huntington, Cabell County. US Route 60 is a public road maintained by Respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred on February 17, 2009. At the location of the incident, US Route 60 is a four lane road with two lanes of traffic in either direction, and a speed limit of 40 miles per hour. At the time of the incident, Mrs. Stewart was driving east on US Route 60 at 40 miles per hour in the inside lane. Mrs. Stewart testified that she was aware of the hole in her lane, but that she was prevented from avoiding it by a car located in the outside lane. As a result of this incident, Claimants’ vehicle sustained damage to a tire and rim in the amount of $570.13. Since Claimants’ insurance declaration sheet indicates that their collision deductible is $500.00, Claimants’ recovery is limited to that amount.
      It is the Claimants’ position that Respondent knew or should have known about hole in the road on US Route 60 which created a hazardous condition to the traveling public and that Respondent was negligent in failing to properly maintain US Route 60 or provide proper warning to the traveling public of a known hazardous condition prior to the incident.
      The position of the Respondent is that it did not have actual or constructive notice of the hole on US Route 60 at the time of the incident. Randolph Smith, Administrator for the Respondent in Wayne County, testified that he is familiar with the location of Claimant’s incident on US Route 60, which he described as a heavily traveled, priority one stretch of road. Smith testified that during the month of February, Respondent’s main concerns are keeping the road free of ice and water. Additionally, Smith testified that the only material available to patch the road during the winter is a temporary material which may last only two days or two weeks.
      The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645; 46 S.E.2d 81 (1947). In order to hold Respondent liable for road defects of this type, Claimants must prove that Respondent had actual or constructive notice of the defect and a reasonable amount of time to take corrective action. Pritt v. Dep’t of Highways, 16 Ct. Cl. 8 (1985); Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986).
      In the instant case, the Court is of the opinion that Respondent had, at the least, constructive notice of the hole on US Route 60. Since a hole in the travel portion of a heavily travel road created a hazard to the traveling public, the Court finds Respondent negligent.
      In view of the foregoing, it is the opinion of the Court of Claims that the Claimants should be awarded the sum of $500.00.
      Award of $500.00.
Summary:
     


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