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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued February 14, 2013
BENJAMIN MAYNARD
VS.
DIVISION OF HIGHWAYS
(CC-11-0247)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant, Benjamin Maynard, brought this action for vehicle damage which occurred when his 2000 Ford F-150 struck a hole while performing a legal U-turn along U.S. Route 60 in Milton, Cabell County. U.S. Route 60 is a public road maintained by Respondent. The Court is of the opinion to make a partial award in this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 11:00 a.m. on April 12, 2011. Claimant testified that on a clear and dry day while traveling eastbound on U.S. Route 60 near Milton Elementary School he made a U-turn and struck a sunken drainage hole. Claimant admittedly did not negotiate the turn without entering the parking area along the side of the roadway; however, he did state that it is impossible to negotiate a U-turn without entering the area designated for parked vehicles. Claimant testified that there were no visible warnings in the area and no cones along the sunken drain. As a result of its contact with the hole, Claimant’s vehicle sustained damage to its rim and tire in the amount of $569.78. Claimant had liability insurance only.
      The position of Respondent is that it did not have actual or constructive notice of the hole. In the alternative, Respondent argues that it is not liable for damage incurred as a result of a U-turn, that when negotiated, led a claimant to exit the travel portion of the roadway and onto a designated parking area.
      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 the Respondent liable for road defects of this type, the Claimant must prove that the 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 which the Claimants’ vehicle struck and that the hole presented a hazard to the traveling public. Given the size of the depression in the parking area along the roadway, Respondent should have been aware of the possibility of a member of the traveling public making contact with the hole. Nevertheless, the Court agrees that Claimant is at least partially responsible for failing to adequately negotiate the U-turn. In a comparative negligence jurisdiction such as West Virginia, a claimant’s negligence may reduce or bar recovery in a claim. Based on the above, the Court finds that the Claimant’s negligence equals twenty-five percent (25%) of his loss. Since the negligence of the Claimant is not greater than or equal to the negligence of the Respondent, Claimant may recover seventy-five percent (75%) of the loss sustained.
      It is the opinion of the Court of Claims that Claimant should be awarded the sum of $427.34.
      Award of $427.34.
Summary:
     


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