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West Virginia Court of Claims

Volume Number: 29
Category(s): BERMS
Opinion Issued October 26, 2011
FREDDIE A. MARKS
VS.
DIVISION OF HIGHWAYS
(CC-09-0364)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant brought this action for vehicle damage which occurred to his 2002 Mitsubishi Galant after daily driving over a road alleged to be poorly maintained. County Route 7/5, locally designated Woodland Road, in West Columbia, Mason County, which 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 between approximately June 2008 and June 2009. County Route 7/5 is an unmarked two-lane tar and chip road with holes scattered all over, and without a posted speed limit. The Claimant testified that he lives on County Route 7/5 and drives it on a daily basis. Claimant testified that there are so many holes on the road they are impossible to avoid, and estimates that his vehicle strikes anywhere from ten (10) to twenty (20) per day. Claimant stated that he and his neighbors notified Respondent of the condition of the road prior to his experiencing problems with his vehicle. Claimant alleges that as a result of the condition of the road, his vehicle sustained damage to the front and rear struts and inner tie rods requiring their replacement and an alignment in the amount of $870.00. Claimant’s vehicle had liability insurance only.
      It is Claimant’s position that Respondent knew or should have known about the deteriorating condition of County Route 7/5 which created a hazardous condition to the traveling public and that Respondent was negligent in failing to properly maintain County Route 7/5 prior to the incident.
      The position of the Respondent is that it did not have actual or constructive notice of the condition on County Route 7/5 at the time of the incident. James Halfhill, Mechanic for Respondent in Mason County, testified that he does general diagnostic and maintenance to all state equipment, including state motor vehicles. Halfhill testified that, in his opinion, the condition of the roadway could not have damaged Claimant’s vehicle’s struts and tie rods in one year.
      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, Claimant 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 deteriorating condition of County Route 7/5. Since Respondent’s failure to maintain a deteriorating roadway 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 Claimant should be awarded the sum of $870.00.
      Award of $870.00.
Summary:
     


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