OPINION ISSUED JANUARY 19, 2001
PHILLIP JAMES HAMILTON, JR.
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage sustained when
his vehicle encountered a sharp turn after crossing a bridge on
Route 16, locally known as Princeton Garner Road, near Princeton.
At this location, Route 16 is maintained by respondent in Mercer
County. The Court is of the opinion to deny this claim for the
reasons more fully set forth below.
The incident giving rise to this claim occurred on January 9,
2000, at approximately 10:30 p.m. Claimant was traveling
southbound on Route 16 in his 1991 Pontiac Firebird GTA at a speed
of about twenty-five miles per hour. This occasion was claimant's
first time driving on this road at night. The weather was foggy
and the roadway was wet. At this location, Route 16 is a two-lane
asphalt road with double yellow lines indicating the center of the
road and white lines on each edge of the pavement. Claimant
testified that when he drove across a bridge, he was unable to
observe the turn to his right on the westerly side of the road.
However, he did indicate that he observed an orange "thirty miles
per hour" road sign at the turn. He tried to maneuver his vehicle
through the turn, but he lost control of his vehicle. The vehicle
then slid off the road surface, breaking through a fence and
striking a telephone pole. Claimant sustained minor personal
injures. Afterwards, a member of the West Virginia State Police
investigated this incident. The certified police report tendered
by claimant indicated that the contributing circumstances to the
incident were that claimant's vehicle exceeded a safe speed and
that there were other roadway defects.The certified copy of the
police report tendered by claimant appears to have been amended in
the section labeled as "Contributing Circumstances." It appears to
the Court that two different typewriters were used on this report
section and that white-out had been placed over the oval indicating
"Left of Center" which had been previously marked. The report does
not mention any roadway defects specifically. Claimant contends
that the road configuration was the proximate cause of his
incident. Since the sustained damage was estimated to exceed the
value of the vehicle, the vehicle was deemed to be "totaled."
Claimant paid $5,000.00 for the vehicle, but the vehicle had a blue
book value of $6,600.00.
The position of respondent is that it did not have notice of
any problem with the curve or the road condition on Route 16 in Mercer County. According to West Virginia State Police Sergeant
John C. Gillispie, the investigating officer, the proximate cause
of this incident was claimant's vehicle was exceeding a safe speed.
Sgt. Gillispie tendered his original police report. The report made
no indication of any roadway defects or hazards, as did the copy of
the report tendered by claimant. Sgt. Gillispie further testified
that this was the only incident that he had encountered at this
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 vs. Sims, 130 W.Va. 645; 46
S.E.2d 81 (1947). 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 time
to take corrective action. Chapman vs. Dept. of Highways, 16 Ct.
Cl. 103 (1986).
In this claim, the evidence failed to establish that
respondent was negligent in its maintenance of Route 16 in Mercer
County. Claimant should have exercised greater care under the then
and there existing road conditions. Moreover, claimant proffered
a document purporting to be a certified copy of the original police
report. This document appears to the Court to have been altered as
established by the testimony of the investigating officer. The
Court takes a dim view of this conduct and views such conduct with
extreme disfavor. Consequently, this claim will be dismissed.
In accordance with the findings of fact and conclusions of law
stated herein above, the Court is of the opinion to and does deny