OPINION ISSUED NOVEMBER 1, 2000
DIVISION OF IGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage sustained when
her vehicle struck a low manhole when she was traveling north on
Routes 15 and 20, locally known as Main Street, in Webster Springs.
Routes 15 and 20 are maintained by respondent in Webster County.
The Court is of the opinion to make an award in this claim for the
reasons more fully set forth below.
The incident giving rise to this claim occurred on June 9,
2000, at approximately 10:00 to 10:30 p.m. On the night in
question, Ms. Linkous, her daughter, grand-daughter, and two
friends were returning from playing bingo at the local firehouse.
She was driving north on Routes 15 and 20 in her 1992 Dodge Dynasty
at a speed of less than twenty-five miles per hour as she had just
passed through a traffic light at an intersection. Ms. Linkous
testified that she frequently travels this portion of road and was
aware of a low manhole in the road. At this location, Routes 15
and 20 are a straight, narrow, two lane asphalt road with double
yellow lines indicating the center of the road surface. The width
of the road is twenty-four feet, which includes parallel parking
spaces on the west side of the road. A four inch curb is located
on the east side of the road. A traffic light is located directly
south of the location in question, where Routes 15 and 20 combine
into one road. In the travel portion of the north lane, a round
manhole is located about five feet five inches from the second
yellow line and two feet from the curb on the north side of the
road. Ms. Linkous testified that the depth of the manhole from the
road surface was about eight inches. As Ms. Linkous drove her
vehicle through the traffic light, an oncoming flatbed truck came
into her lane of travel forcing her to veer her vehicle to the
right whereupon it went into the manhole. Both passenger side
tires struck the hole. The impact burst the passenger side tires,
bent the rims and damaged the transmission. The damage exceeded
the $100.00 deductible feature in her motor vehicle insurance
policy. In accordance with the Court's decision in Summerville et
al. vs. Division of Highways, any recovery would be limited to the
amount of her deductible feature. See Id., 18 Ct. Cl. 110 (1991).
The position of respondent is that it did not have notice of
the low manhole on Route 15 and 20 in Webster County. According to
Highway Administrator Jimmy Collins, respondent had conducted a paving project on this portion of road and that manholes in the
area had not been raised to pavement level. Mr. Collins further
testified that he was unaware of the manhole that claimant's
vehicle struck.Respondent adduced eight photographs on
September 26, 2000, as post hearing exhibits, which establish the
existence and location of the manhole in question. Prior to this
time, respondent asserts that it did not have notice of any
problems with the level of manholes on the road surface.
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 the present claim, the evidence established
that respondent had constructive notice, if not actual notice, of
the low manhole on Routes 15 and 20 in Webster County. After
completing its paving project, respondent was aware that structures
in the road surface needed to be raised to pavement level. The
Court is of the opinion that respondent should have been more
diligent in its duties especially since the road is narrow and
vehicles can be forced into the structures. Consequently, there is
sufficient evidence of negligence on the part of respondent upon
which claimant may recover her sustained loss.
In accordance with the findings of fact and conclusions of law
stated herein above, the Court is of the opinion to and does make
an award in this claim.
Award of $100.00.