OPINION ISSUED NOVEMBER 24, 1986
JAMES W. BASHAM, JR.
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
Claimant James W. Basham, Jr. originally filed this claim against
respondent in the amount
of $7,000.00 for damages to his 1977 Mazda GLC hatchback. During
hearing, the claimant
amended the amount of his claim to $1,683.19. On February 15, 1984,
a.m., claimant was operating his vehicle at 35-40 miles per hour en
route to Concord College, on
Route 20 south of Hinton, near Pipestem, Summers County. The road
highway. The claimant encountered ice. His car had swerved to the
left-hand side of the road,
whereupon it hit the berm, flipped and skidded approximately
The claimant testified that, at the time of this incident, the
temperature was between 45 and 50
degrees. He was en route to Concord College where he was a student.
described the ice as
being "black ice." He travelled this route frequently and had
encountered "black ice" prior to this
occasion. On this particular day, the claimant had observed a
small patches of ice, but
was unaware of the ice at the location of the accident.
The claimant alleged that the respondent had been notified of the
dangerous condition of this
road. However, no evidence was introduced to establish knowledge,
constructive, that respondent was aware of the ice on the highway.
The law is well established in West Virginia that the State is
an insurer nor a guarantor
of the safety of persons travelling on its highways. Adkins v.
W.Va. 645, 46 S.E.2d
81 (1947); Lipscomb v. Dept. of Highways, 12 Ct.Cl. 322 (1979).
the respondent may
be held liable, there must be evidence that the respondent knew or
should have known of the
existence of ice on the highway. Accordingly, the Court disallows