|Volume Number: 30
Category(s): FALLING ROCKS AND ROCKS
|Opinion Issued September 13, 2013|
|DIVISION OF HIGHWAYS|
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for Respondent.
| PER CURIAM:
Claimant, Mark Mareske, brought this action to recover damages which occurred when his 2008 Nissan Altima struck a rock while traveling along U.S. 119 near Logan, Logan County. U.S. 119 is a public road maintained by Respondent. The Court is of the opinion to deny this claim for reasons more fully stated below.
The facts giving rise to this claim occurred on January 15, 2011, at approximately 7:30 p.m. Claimant testified that while traveling in the lefthand passing lane between Chapmanville and Logan on the date of the incident, his vehicle struck a rock lying in the travel portion of the roadway. Claimant stated that he could not avoid contact with the rock. By all accounts the weather and road conditions on the date in question were good. As a result of the impact with the rock, Claimant vehicle sustained damage to its tire, wheels, and sensor in the amount of $760.48. Claimant carried a $500.00 collision insurance deductible amount on the date of the incident.
Respondent argues that it did not have actual or constructive notice of the rock on or before the date of the incident. Claimant asserts that Respondent is negligent because it should have known that a rock was lying in the roadway and posed a threat to the traveling public.
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). “Actual notice” is based on direct evidence known by a person or entity while “constructive notice” is defined as "[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of . . .; notice presumed by law to have been acquired by a person and thus imputed to that person." Mace v. Ford Motor Co., 221 W. Va. 198, 653 S.E.2d 660 (2007) (citing Black’s Law Dictionary at 1090 (8th Ed. 2004)).
In the instant case, the Court is of the opinion that Respondent did not have actual or constructive notice of a rock in the roadway. When the Respondent does not have adequate notice of a condition to allow for corrective action, there is no duty upon the Respondent to correct unknown defects.
Based on the foregoing, the Court finds that Claimant’s claim should be, and is hereby, DENIED.