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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 10, 2012
JOSHUA POLAN
VS.
DIVISION OF HIGHWAYS
(CC-10-0672)
     Claimant appeared pro se.
     Travis E. Ellison III, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant brought this action for vehicle damage which occurred while he was driving his 2006 Acura TSX. Claimant’s vehicle struck a large hole while traveling along County Route 47 near West Liberty, Ohio County. County Route 47 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 3:55 p.m. on October 10, 2010. County Route 47 is a one and a half lane road without painted white edge lines or a center line. Claimant testified that when a vehicle meets an oncoming vehicle along this road, the only alternative is to slow down and drive to the right side of the road as far as possible. The hole was not located in the main travel portion of the road. The hole was located on the shoulder of the road directly in the path of Claimant when he drove to the right to pass an oncoming vehicle. Claimant stated that this particular road is in general disrepair which is in worse condition as the road gets closer to the Pennsylvania border. As a result of striking the hole, Claimant’s vehicle sustained damage to its tire and wheel in the amount of $776.10. Claimant’s vehicle had insurance, which requires a $500.00 deduction; therefore, any award to Claimant is limited to the amount of the deductible
      The position of the Respondent is that it did not have actual or constructive notice that the there was a hole and that it posed a risk to the traveling public.
      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 hole along the side of County Route 47. The size of the hole on this narrow road 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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