OPINION ISSUED JANUARY 15, 1986
BONNIE FAYE JARRELL
DEPARTMENT OF HIGHWAYS
Claimant's husband, James E. Jarrell, appeared for claimant.
Andrew Lopez, Attorney at Law, for respondent.
On July 27, 1985, the claimant's husband was driving the
1982 Chevrolet Monte
Carlo on Cabin Creek Road, Kanawha County, when the vehicle struck
pothole. The vehicle
sustained damage to the tire and wheel in the amount of $237.25.
husband of the claimant,
James E. Jarrell, originally filed this claim in his own name and
of his wife, Bonnie Faye
Jarrell. However, the record reflects that his wife was the sole
owner of the vehicle. The
Court then, upon Mr. Jarrell's agreement, amended the style of the
to delete James E.
Jarrell as a party claimant. Claimant's husband testified that he
estimated the pothole to be seven
inches deep, twelve inches wide, and sixteen inches long.
husband had observed the
pothole and believed it had been in existence for two months prior
Claimant's husband also testified that he had notified respondent
office in Charleston, by
telephone, about two or three weeks prior to this incident,
this pothole and other
potholes beyond it on the same road. He could not identify the
who took his complaint.
Although the respondent may have had actual notice of the existence
the pothole in the road,
the claimant's husband was operating the vehicle at an estimated
of 40 miles per hour, an
excessive rate of speed for the conditions then and there existing.
It is the opinion of the Court that although the respondent may
been negligent, the
negligence of claimant's husband was equal to or greater than that
the respondent. The Court
therefore denies the claim.