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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS, FALLING ROCKS AND ROCKS
Opinion Issued January 10, 2012
DONALD E. BURKEY
VS.
DIVISION OF HIGHWAYS
(CC-10-0535)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant brought this action for vehicle damage, which occurred while he was driving his 2003 Mazda Miata. Claimant’s vehicle struck a series of holes while traveling along W. Va. Route 88 near Bethlehem, Marshall County. W. Va. Route 88 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 9:30 p.m. on August 3, 2010. Claimant testified that he had been out joy riding when he met an oncoming vehicle which he felt crowded him to the side of the road where his vehicle struck two holes measuring approximately three inches in diameter. As a result, the Claimant’s vehicle sustained damage to its front and rear passenger tires and wheels in the amount of $1,441.92. Claimant’s vehicle had insurance, which requires a $500.00 deduction; therefore, any award to Claimant is limited to the amount of the deduction. The position of the Respondent is that it did not have actual or constructive notice of the road condition that led to Claimant’s damages.
      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 road condition, and that the general road condition poses a hazard to the traveling public’s property. The frequency of the holes coupled with the knowledge that these roads are being used more heavily and the roads were not constructed for such traffic leads the Court to conclude that Respondent was negligent. Thus, Claimant may make a recovery for the damage to his vehicle.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $500.00.
      Award of $500.00.
Summary:
     


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