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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 10, 2012
DAVID R. MICHAELS
VS.
DIVISION OF HIGHWAYS
(CC-10-0297)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant brought this action for motorcycle damage which occurred while he was driving his 2002 Harley Davidson Low Rider. Claimant’s motorcycle struck a series of deep gouges while traveling along W. Va. Route 2 near Chester, Hancock County. W. Va. Route 2 is a public road maintained by Respondent. The Court believes that Claimant should receive an award in this claim for reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 10:00 p.m. on April 12, 2010. W. Va. Route 2 is a two-lane road with painted white edge lines and a center line. Claimant was operating his motorcycle in the turning lane along W. Va. Route 2 in order to make a right hand turn onto Old Route 30 at the time of the incident. Claimant testified that there was a sign that read “rough road”; however, he did not expect to encounter road conditions as severe as the kind that damaged his motorcycle. Claimant described the road conditions as “gouges” with sharp edges. Claimant testified that the holes were so severe that sparks were emitted from the motorcycle. As a result, the Claimant’s motorcycle sustained damage to its front tire and wheel mount in the amount of $200.00. Claimant’s motorcycle had insurance, which requires a $500.00. Claimant is limited to an award up to the amount of that deductible; however, Claimant’s damages are well below the deductible amount.
      The position of the Respondent is that it did not have actual or constructive notice that the sign was not adequate to alert motorists of the road condition.
      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 improperly placed sign, and that the deep depressions in the road presented a hazard to the traveling public. The size of the depressions and their location on the travel portion of the road leads the Court to conclude that Respondent was negligent. Thus, Claimant may make a recovery for the damage to his motorcycle.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $200.00.
      Award of $200.00.
Summary:
     


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