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West Virginia Court of Claims

Volume Number: 30
Category(s): STREETS AND HIGHWAYS
Opinion Issued February 5, 2014
SAMUEL ROBERT COVER AND TERRI LYNN COVER
VS.
DIVISION OF HIGHWAYS
(13-0511)
     Claimants appeared pro se.
     C. Brian Matko, Attorney at Law, for Respondent.
     PER CURIAM:
     
      Claimants, Samuel and Terri Cover, brought this action to recover damages which occurred when their 2007 Saturn Vue struck holes along Broomsage Road near Fairmont, Marion County. Broomsage Road 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 during the morning hours of January 10, 2012. Claimants testified that Broomsage Road is in a constant state of disrepair. Claimants stated that despite numerous calls to the Respondent complaining of the condition, no efforts have been undertaken to correct the problem. Claimants argue that on this particular date, while traveling along Broomsage Road, their vehicle struck one of numerous holes, which caused damage to their vehicle. As a result of this incident, Claimants’ vehicle sustained damage to its sway bar, axle boot, and CV Joint Boot in the amount of $551.05. Claimants carried a $500.00 collision insurance deductible amount on the date of the incident.
      Respondent argues that it had neither actual nor constructive notice of the condition along Broomsage Road; therefore, it cannot be held liable for Claimants’ damage.
      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 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 had, at the least, constructive notice of risk posed by general condition of Broomsage Road. The volume of testimony and photographic evidence leads the Court to conclude that Respondent was negligent. 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 $500.00.
      Award of $500.00.
Summary:
     


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