OPINION ISSUED FEBRUARY 19, 1986
FRANK SPENCE AND MARGARET E. SPENCE
DEPARTMENT OF HIGHWAYS
Claimants appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
On May 26, 1985, claimant Frank Spence was operating his 1981
Horizon on U.S.
52 in a southerly direction toward Crum, when he hit a pothole.
Claimant, Frank Spence,
originally filed the claim in his own name; however the record
that his wife, Margaret
Spence, is also a titled owner of the vehicle. The Court, on its
Motion, amended the style of
the claim to include Margaret Spence as a party claimant. The
was damaged in the
amount of $552.40. After claimant Frank Spence introduced evidence
damages in the
aforementioned amount, the Court amended the amount of the original
claim to reflect that
amount. Claimant Frank Spence testified that he did not see the
until he hit it. Although
he travelled that route frequently, he had not observed the pothole
prior to this accident.
Claimant Frank Spence knew of no complaints to respondent about the
pothole prior to this
The State is neither an insurer nor a guarantor of the safety of
persons travelling on its
highways. Adkins vs. Sims, 130 W.Va. 645 (1947). For the State to
found liable, it must
first have had either actual or constructive notice of the defect
roadway. Since there was
no proof in this case that the State had such notice of the defect, the
claim must be denied.