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West Virginia Court of Claims

Volume Number: 30
Category(s): FALLING ROCKS AND ROCKS
Opinion Issued February 19, 2014
SAMANTHA WATSON
VS.
DIVISION OF HIGHWAYS
(12-0600)
     Claimant appeared pro se.
     C. Brian Matko, Attorney at Law, for Respondent.
     PER CURIAM:
     
      Claimant, Samantha Watson, brought this action to recover damages which occurred when her 2007 Ford Taurus struck concrete debris along I-79 near Jane Lew, Lewis 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 on October 4, 2012, at approximately 12:47 a.m. Claimant testified that she was traveling along I-79 the vehicle when she noticed that the car in front of her had its four-ways lights activated. Claimant stated that she then began to proceed to pass the vehicle and that as soon as she began to pass she noticed what appeared to be a rock in the travel portion of her lane. Claimant admitted that the debris later turned out to be a piece of concrete that originated from the bridge. Soon after her vehicle struck the piece of concrete Claimant parked her vehicle. Claimant stated that she then looked underneath her vehicle and noticed that her break line was leaking. As a result of this incident, Claimant’s vehicle sustained damage to its tire, rims, break line, and exhaust in the amount of $4,449.57. Claimant carried a $500.00 collision insurance deductible amount on the date of the incident; therefore, Claimant is limited to an award in that amount. Claimant alleges that she is also entitled to recovery in the amount of $380.72 for the cost to rent a vehicle while her vehicle was being repaired.
      Respondent argues that it had neither actual nor constructive notice of the rock along I-79 on the date of the incident; therefore, it cannot be held liable for Claimant’s 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 the rocks along I-79 on the date of the incident. The volume of the testimony together with Respondent’s work records leads the Court to conclude that Respondent was negligent. Thus, Claimant may make a recovery for the damage to her vehicle. Claimant may also make a recovery for the cost to rent a vehicle while her vehicle was being repaired because Claimant did not have car rental insurance at the time of this incident.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $880.72.
      Award of $880.72.
Summary:
     


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