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West Virginia Court of Claims

Volume Number: 29
Opinion Issued January 10, 2012
     Claimant appeared pro se.
     C. Brian Matko, Attorney at Law, for Respondent.
      Claimant brought this action for vehicle damage which occurred while her daughter was driving her 2000 Saab 9-3 Convertible. Claimant’s vehicle struck a large hole while Lauren Hanses was traveling along U.S. 119 near Morgantown, Monongalia County. U.S. 119 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 1:03 a.m. on February 26, 2011. Claimant’s daughter testified that on the night in question it was clear. Claimant’s daughter was not familiar with the road before the time of the incident. Claimant’s vehicle struck a large pothole measuring approximately three feet wide. As a result, the Claimant’s vehicle sustained damage to its two right tires and wheels in the amount of $996.58. Claimant’s vehicle was covered by 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 was aware of the condition on U.S. 119; however, Respondent’s witness maintains that hole was filled with cold patch before the incident. Therefore, Respondent maintains that it did not have actual or constructive notice of the condition that led to Claimant’s vehicle damage.
      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 that caused damage to Claimant’s vehicle. The size of the depression and the fact that cold patch is a less than temporary fix leads the Court to conclude that Respondent was negligent. Thus, Claimant may make a recovery for the damage to her vehicle.
      It is the opinion of the Court of Claims that Claimant should be awarded the sum of $500.00.
      Award of $500.00.

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