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West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 12, 2015
GORDON C. HARVEY AND ANNA E. HARVEY
VS.
DIVISION OF HIGHWAYS
(CC-13-0655)
     Claimants appeared pro se.
     Francis M. Curnutte III, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimants, Gordon and Anna Harvey, brought this action to recover damages which occurred when their 2012 Dodge Ram struck a light reflector while traveling along Route 99 near Bolt, Raleigh County. Route 99 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 December 22, 2013, at approximately 6:45 p.m. Claimant Gordon Harvey stated that while traveling along Route 99 on Bolt Mountain his vehicle jumped violently. Upon stopping, Claimants inspected the vehicle and discovered that he had a flat tire and wheel damage. Claimants walked behind the vehicle in order to discover what caused the damage and found a dislodged road reflector protruding from the median of the roadway. Driving conditions were dark and wet on the date in question. As a result of this incident, Claimants’ vehicle sustained damage to its wheel and tire in the amount of $1,000.00. Claimants carried a $1,000.00 collision insurance deductible on the date of this incident.
      Respondent argues that it had neither actual nor constructive notice of the condition present on along Route 99 on the date in question. Therefore, Respondent maintains that it cannot be held liable in this claim.
      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 constructive notice of the condition of the road reflectors along Route 99. As this Court has seen in other cases involving road reflectors, after years of deterioration, road reflectors often do become dislodged, especially in the winter months. This occurs because of the increased use of large snow plows. The Court is of the opinion that Respondent should have taken action to correct this condition. Therefore, an award is recommended in this claim in the amount of Claimants’ deductible.
      Based on the foregoing, the Court is of the opinion to, and does hereby, grant an award in Claimants’ claim.
      Award $1,000.00.
     
Summary:
     


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