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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued April 5, 2013
SALLY J. SAVAGE
VS.
DIVISION OF HIGHWAYS
(CC-11-0645)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant, Sally Savage, brought this action for vehicle damage which occurred when her 2011 Cadillac CTS struck an uneven portion of asphalt while traveling along W. Va. Route 16 near Beckley, Raleigh County. W. Va. Route 16 is a public road maintained by Respondent. The Court is of the opinion to deny this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 4:00 p.m. on October 12, 2011. Claimant testified that while she was driving in the northbound lane of W. Va. Route 16 near the intersection of Dunn Street when she encountered a slight incline in the roadway. As a result of the slight incline, Claimant’s vehicle made contact with the roadway. Claimant stated that the condition of the roadway on the date of the incident was clear and dry. Claimant also informed the Court that her vehicle sits low to the ground and is fitted with low profile tires. As a result of its contact with the roadway, Claimant’s vehicle sustained damage to its tires and trim in the amount of $806.52. Claimant carried a $500.00 collision insurance deductible at the time of the incident.
      The position of Respondent is that it did not have actual or constructive notice of the road defect along W. Va. Route 16 on the date of the incident.
      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 did not have actual or constructive notice of the road condition which led to Claimant’s damage. Claimant did not submit photographic evidence of the condition. Claimant was only able to show photographs of an area that was patched, which does not prove the existence of a road defect. Therefore, the Court finds that Respondent was not negligent.
      Based on the foregoing, the Court is of the opinion to, and does hereby, deny Claimant’s claim.
      Claim disallowed.
Summary:
     


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