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West Virginia Court of Claims

Volume Number: 30
Opinion Issued December 26, 2013
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimants, Randy and Kimberly Geer, brought this action to recover damages which occurred when their 2012 Fiat Sport struck a foreign object along Exit 110 of I-79 near Lost Creek, Harrison County. I-79 is a public road maintained by Respondent. The Court is of the opinion to grant an award in this claim for reasons more fully stated below.
      The facts giving rise to this claim occurred at approximately 5:30 p.m. on June 25, 2012. Claimants stated that as they were exiting the roadway a road cone was in the lane of traffic at the 110 exit. Claimants noted that several other individuals had struck the cones as well. Claimants testified that the weather conditions were fair on the date of the incident, and also stated that there were no warning signs to indicate the presence of cones in the middle of the roadway. As a result of this incident, Claimants’ vehicle sustained damage its tires in the amount of $935.56. Claimants carried a $1,000.00 collision insurance deductible on the date of the incident.
      Respondent argues that it did not have actual or constructive notice of the road cone; therefore, it had no duty to correct a defect without being made aware. Claimants argue that Respondent did have constructive notice of the condition.
      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). Therefore, in order to hold Respondent liable for road hazards of this type, Claimant must prove that Respondent had actual or constructive notice of the hazard 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 had, at the least, constructive notice of risk posed by the presence of road cones. The fact that so many vehicles had struck the same object, and because the incident occurred just feet from the nearest field office of the Respondent, further reinforces this Court’s finding that Respondent should have known about the condition. Thus, Claimants may make a recovery for the damage to their vehicle.
      It is the opinion of the Court of Claims that the Claimants should be awarded the sum of $935.56.
      Award of $935.56.

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