OPINION ISSUED JANUARY 19, 2001
STANLEY K. SHANHOLTZ AND
MARSHA L. SHANHOLTZ
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimants brought this action for vehicle damage sustained
when their vehicle struck a hole while they were traveling
southbound on County Route 3, locally known as Wyatt Road. At this
location, County Route 3 is maintained by respondent in Harrison
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 June 3,
2000, at approximately 5:30 p.m. Claimant Stanley K. Shanholtz was
driving southbound on County Route 3 in their 1994 Pontiac
Bonneville at a speed of thirty to thirty-five miles per hour.
Claimant Marsha L. Shanholtz was situated in the front passenger
seat.At the hearing, Claimant Marsha L. Shanholtz was the only
witness in the claimants' case-in-chief. At this location, County
Route 3 is a second priority two lane road with no stripes on the
road surface. As Mr. Shanholtz drove their vehicle over a slight
incline on the road, they came upon a hole in the right side of the
road surface. Oncoming traffic prevented him from maneuvering
their vehicle around the hole. The front passenger side tire
struck the hole. The hole was about three to four feet wide, about
one and one-half to two feet long, and was eight to twelve inches
deep. Ms. Shanholtz was last on the road about three days prior to
the incident and she indicated that she was aware of the hole in
question. The impact with the hole burst the front passenger side
tire and broke the rim. Since the sustained damage was less than
the deductible feature of $500.00 in claimants' motor vehicle
insurance policy, they were responsible for the loss.
The position of respondent is that it did not have notice of
the hole on County Route 3 in Harrison County. According to
Highway Administrator Michael A. Scott, he was last on the road
about one month prior to claimants' incident. At that time, Mr.
Scott acknowledged that the road was in need of repair. However,
prior to claimants' incident respondent had not received any
information regarding a problem in the area. After the incident,
a crew was dispatched to the scene and the hole was repaired.
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, a 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 established that respondent had at
least constructive if not actual notice of a hazardous condition on
County Route 3 and that respondent was negligent in its maintenance
of County Route 3 in Harrison County. Notwithstanding this finding
of negligence on the part of respondent, the Court is also of the
opinion that claimant Stanley K. Shanholtz was negligent in the
operation of his vehicle. The Court has determined that Mr.
Shanholtz should have been more observant of the existing road
conditions. Moreover, Ms. Shanholtz was aware of the hole in the
road surface and she had an obligation to inform her husband of the
existing road conditions. In a comparative negligence jurisdiction
such as West Virginia, the negligence of a claimant may reduce or
bar recovery of a claim. The Court finds that the negligence of
claimants was equal to or greater than the negligence on the part
of respondent and is a complete bar to recovery in this claim.
In accordance with the findings of fact and conclusions of law
stated herein above, the Court is of the opinion to and does deny