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West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 12, 2015
MARTHA HARLESS
VS.
DIVISION OF HIGHWAYS
(CC-14-0291)
     Claimant appeared pro se.
     Francis M. Curnutte III, Attorney at Law, for Respondent.
     PER CURIAM: Claimant, Martha Harless, brought this action to recover damages which occurred when her 2000 Dodge Durango struck a large hole while traveling along Route 80 near Gilbert, Mingo County. Route 80 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 January 21, 2014, at approximately 4:30 p.m. Claimant stated that while traveling along Route 80 her vehicle struck a large hole. Claimant testified that the conditions on the date in question were snowy, making visibility extremely poor. Claimant was aware of the hole, as she had traveled the road quite frequently. However, Claimant alleges that she could not see the hole on this date as it was covered with snow. As a result of the incident, Claimant’s vehicle sustained a total loss in the amount of $8,000.00. Claimant carried liability insurance only on the date of the incident. Claimant argues that Respondent was negligent for failing to correct the road defect.
      Respondent argues that it had neither actual nor constructive notice of the condition present on along Route 80 on the date in question. Therefore, Respondent maintains that it cannot be held liable in this claim. Respondent’s witness, Paul Messer, Highway Administrator for Mingo County, stated that his crew had placed cold patch in the hole, but cold patch is only temporary.
      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 had actual notice of the hole in question and that action could have been taken to assure that the hole did not pose a risk to the traveling public. The Court is sympathetic to the fact that during the winter months cold patch is the only available substance with which to fix holes; however, the availability of resources cannot be a defense in tort. Nevertheless, the Court finds that Claimant is ten percent (10%) at fault in this claim. Therefore, the Court does recommend an award less ten percent (10%).
      Based on the foregoing, the Court is of the opinion to, and does hereby, grant an award in Claimant’s claim.
      Award $7,200.00.
     
Summary:
     


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