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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 10, 2012
KYLE HESS AND EARL K. HESS
VS.
DIVISION OF HIGHWAYS
(CC-11-0174)
     Claimants appeared pro se.
     Travis E. Ellison III, Attorney at Law, for respondent.
     PER CURIAM:
      Claimants brought this action for vehicle damage which occurred when their 2009 Mercedes C300 struck a hole along Canyon Road, designated as W. Va. Route 67 near Morgantown, Monongalia County. W. Va. Route 67 is a 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 vehicle is registered in the names of Kyle Hess and his father, Earl K. Hess.
      The incident giving rise to this claim occurred at approximately 9:45 p.m. on March 12, 2011. W. Va. Route 67 is a two-lane, paved road with a speed limit of thirty-five miles per hour. At the time of the incident, claimant Kyle Hess was driving to his home from a friends house. As he was traveling at approximately thirty-three miles per hour, his vehicle struck a hole. The hole was situated on the right portion of the roadway and measured approximately eight to ten inches in depth. Claimant Kyle Hess drives on this road approximately ten times a year so he was not aware of the condition of the roadway. Claimant states that he did not contact Respondent about the hole because of the timing of the incident which occurred on a Saturday evening. Claimant’s vehicle sustained damage to a tire and a rim in the amount of $555.44. Claimant’s collision insurance carries a $500.00 deduction.
      The position of the respondent is that it did not have actual or constructive notice of the condition of W. Va. Route 67.
      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, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. 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 which Claimant’s vehicle struck, and that it presented a hazard to the traveling public. The size of the hole and its location on the travel portion of the road lead the Court to conclude that respondent had notice of this hazardous condition. Thus, there is sufficient evidence of negligence to base an award. Notwithstanding the negligence of Respondent, the Court is also of the opinion Claimant was negligent. In a comparative negligence jurisdiction such as West Virginia, Claimant’s negligence may reduce or bar recovery in a claim. Based on the above, the Court finds that Claimant’s negligence equals ten-percent (10%) of his loss. Since the negligence of Claimant is not greater than or equal to the negligence of Respondent, Claimant may recover ninety-percent (90%) of the loss sustained.
      In accordance with the findings of fact and conclusions of law stated herein above, the Court is of the opinion to and does make an award to Claimant in the amount of $500.00 which is reduced to $450.00 based upon Claimant’s comparative negligence. Award of $450.00.
Summary:
     


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