| Volume Number: 30
Category(s): STREETS AND HIGHWAYS |
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| Opinion Issued December 18, 2014 | |
| CAROL F. GULLET | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-14-0692) | |
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Claimant appeared pro se. C. Brian Matko, Attorney at Law, for Respondent. |
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| PER CURIAM:
Claimant, Carol F. Gullett, brought this action to recover damages which occurred when her 2000 Nissan Sentra struck a large hole while traveling along U.S. Route 52, also known as Virginia Avenue, near Welch, McDowell County. Virginia Avenue 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 April 9, 2014, at approximately 2:55 p.m. Claimant was traveling southbound along Virginia Avenue on her way home from work when she encountered a narrow section of roadway in front of Mission Ministries in Welch. This section of roadway is known locally to contain a storm drain that protrudes into the travel portion of the road. This hole is covered with grating; however, on the date of this incident, Claimant’s witness testified that the grating was sticking out of the hole at such an angle as to pose a serious risk to motorists. Claimant testified that while attempting to negotiate this section of roadway her vehicle struck a piece of grating, which snagged her vehicle, causing her vehicle to spin and strike a wall before coming to rest. The Court heard testimony from Claimant’s witness as to the reputation in the community for this section of roadway. As a result of this incident, Claimant’s vehicle sustained damage to its rear quarter panel in the amount of $4,029.72. Claimant carried liability insurance only on the date of her incident. Respondent did not offer a witness to refute Claimant’s testimony. However, Respondent argues that it had neither actual nor constructive notice of the condition along Virginia Avenue on the date in question. 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)). A party’s precise knowledge or state of mind concerning a situation often cannot be determined by direct evidence, but must instead be shown indirectly by circumstantial evidence. In the instant case, the Court is of the opinion that Respondent did have notice of the deplorable condition of the grating that was intended to cover the storm drain along Virginia Avenue. Based on testimony in this case, and indeed other cases concerning the same grating, the Court is of the opinion that Respondent is well aware of the problems that this grating poses to the traveling public. Therefore, the Court is inclined to recommend an award to the Legislature in this claim. Based on the foregoing, the Court is of the opinion to make an award in Claimant’s claim. Award $4,029.72. |
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| Summary: |
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