OPINION ISSUED OCTOBER 4, 1985
CHARLES EDWARD ALLEN
DEPARTMENT OF HIGHWAYS
(CC-85-32) Claimant's wife appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
This claim was originally filed in the name of Trish Allen, but
when testimony established that the vehicle, a 1982 Oldsmobile, was
titled in the name of Charles Edward Allen, the Court amended the
style of the claim to reflect that fact.
On January 8, 1985, claimant's wife, Patricia Ann Allen, was
driving on State Route 152 near Proctorville, West Virginia, at
about 8:00 in the evening when she struck a pothole. The pothole
damaged the right front wheel and tire of the vehicle, and the
amount of $157.45 was claimed. Mrs. Allen testified that she did
not see the pothole before or after striking it. Mrs. Allen had no
knowledge of how long the pothole had been in existence.
The State is neither an insurer nor a guarantor of the safety of
motorists on its highways. Adkins vs. Sims, 130 W.Va 645, 46 S.E.
2d 81 (1947). For respondent to be held liable for defects of this
type, the claimant must prove that respondent had actual or
constructive notice of the defect. As there was no evidence of such
notice, the claim must be denied.