Francis M. Curnutte, III, Attorney at Law, for claimants.
Nancy J. Aliff, Attorney at Law, for respondent.


Claimant Virgie Maw Varney asked for an award in the amount of
$150,000.00. Her
husband, claimant William Ernest Varney, asked for an award in the
amount of $25,000.00.
Their claims arise from an automobile accident which occurred at about
8:00 p.m., on
September 14, 1981, on Route 52, near Nolan, in Mingo County. The
claimants' vehicle, a
1980 Chevrolet Malibu, then being driven by Mrs. Varney, ran into
standing water and debris in
the southbound lane of the highway, hydroplaned into the northbound lane
as she lost control,
and collided head-on with a northbound truck.

She had left their home, at Pinson Fork, Kentucky, at about 6:30 a.m.
that day, to keep a 9:30
a.m. doctor's appointment in Huntington. She was accompanied by her two
little daughters and
at Crum, she picked up her mother. Her physician removed several moles
from her nose and
back, using only local anesthesia. After lunch and shopping, they
returned to Crum where
several hours were spent visiting and having supper. She left there, to
drive home, at about 7:00
p.m., again accompanied by her two little daughters and sister.

In her testimony, she recounted that it was dark and raining; that the
road was wet, and that
she was going about 35 to 40 miles per hour when she drove into the
standing water; that she
had not seen it, even though her vehicle's headlights were on and the
windshield wipers were
working, before running into it. She said she had driven over this
section of highway on
numerous previous occasions, but never when it was raining. As a result
of the collision, she
suffered some facial injuries and injuries to both knees, the most
serious injury being a fractured
patella of her right knee, ultimately requiring arthroscopic surgery on
June 29, 1983. She
described the wearing of a brace for some weeks after the accident, the
long course of medical
treatment, the attendant pain and suffering, and her continued inability
to do many things she had
been able to do before the accident. Her medical expenses were in the
total amount of
$2,909.00, all paid by insurance. Additional surgery is anticipated for
the removal of bone
splinters. She made no claim for lost earnings, for she was unemployed.

Mr. Varney also testified with reference to his wife's inability to do
things she had previously
done, her medical treatment and convalescence. He estimated that he had
lost earnings of
$100.00 per shift for about ten shifts as a coal miner, losing work at
times he had to take his wife
for medical care.

Witnesses for the claimant included two Mingo County Deputy Sheriffs
and a lifelong resident
of the area where the accident occurred. Generally, they described the
low-lying area of the
highway, a long history of the blockage of a drain and accumulation of
water and debris there
during long or heavy periods of rainfall, other previous accidents
caused by water standing on
the highway, and of numerous telephone complaints to the respondent
Department of Highways.
Although the respondent would send a crew to open the drain upon such
complaints, nothing
appears to have been done to permanently alleviate the problem nor to
warn the motorists.

The State is neither an insurer nor a guarantor of the safety of
travellers on its highways.
Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to charge
respondent with
negligence, actual or constructive notice of the highway defect is
required. The Court is of the
opinion that the claimants have established, by a preponderance of the
evidence, that respondent
was aware of the recurring hazardous condition; that respondent's
failure to take appropriate
action to eliminate the problem or to warn motorists constituted a
failure to maintain the highway
in a reasonably safe condition; that this negligence was the proximate
cause of the subject
accident. The Court finds no negligence on the part of Mrs. Varney in
her operation of the

Accordingly, the Court grants an award in the amount of $15,000.00 to
Virgie Mae Varney
and grants an award in the amount of $5,000.00 to William Ernest Varney.

Award of $15,000.00 to Virgie Mae Varney.
Award of $5,000.00 to William Ernest Varney.