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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 12, 2012
JONATHAN BURSON AND DONNA VAUGHAN
VS.
DIVISION OF HIGHWAYS
(CC-11-0311)
     Claimants 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 2011 Kia Rio between the dates of March 10, 2011 and March 14, 2011, along W. Va. Route 218 near Carolina and Idamay, Marion County. State Route 218 is a public road maintained by Respondent. The Court believes that Claimant should receive an award for the reasons more fully stated below.
      The incident giving rise to this claim occurred between the dates of March 10, 2011 and March 14, 2011. State Route 218 is a two-lane road with white edge lines and a center line (though the paint has all but faded completely). The Claimant testified that he was the driver between the dates in question. The Claimant was working at Wal-Mart between these dates and State Route 218 was the quickest route between work and his residence. There is not one specific hole that the Claimant alleges caused the damage; however, evidence was presented that the section of this road in question, taken as a whole, was the cause due to its numerous and unavoidable holes. As a result of these conditions, the Claimant’s vehicle was damaged and required four new wheels and tires totaling $972.83. Claimant and his mother are co-owners of the vehicle and do have insurance; however, their policy does not cover the damages alleged.
      The position of Respondent is that Claimant did not allege with particularity what actually caused the damage; that to allow this type of “general claim” would create bad precedent that would work to automatically award almost any future claim against Respondent. Respondent presented Michael Roncone, a highway administrator for the Division of Highways with the Marion County District Office as its witness.
      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, Respondent’s witness admited to having actual notice of the defects along W. Va. Route 218 and that the Division of Highways had done all that it could do to fix the road in question; however, Roncone further testified that the Division of Highways does not have the right materials or necessary funding to actually repair the roadway. (Transcript, page 41.) Also, the witness has provided numerous dates and figures concerning when Division of Highways employees actually placed “cold patch” on the holes in question. The evidence suggests, however, that cold patch is an unreliable manner for permanent repairs. Clearly Respondent had notice in this instance. Thus, Claimant’s evidence is sufficient to allow a recovery for the damages to his vehicle.
      It is the opinion of the Court of Claims that Claimants should be awarded the sum of $972.83.
      Award of $972.83.
Summary:
     


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