OPINION ISSUED OCTOBER 1, 1986
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
The claimant was travelling south on West Virginia Route 52
Prichard and Hubbards
Town when her 1983 Pontiac Trans Am struck a pothole. The incident
occurred on September
28, 1985, at approximately 8:00 p.m. Claimant, accompanied by her
sister, Penny Combs, and
her brother-in-law, Roy Combs, was proceeding at approximately 55
per hour in a
southerly direction on the two-lane concrete highway to Fort Gay,
County. She seeks
$250.00 for the replacement of two tires.
Claimant testified that she had her vehicle's headlights on low
The weather was clear
and dry. Claimant was coming out of a 120 degree curve when the
struck the pothole.
She did not observe the pothole until her vehicle was right upon
estimated that the vehicle
travelled 100 yards before it stopped. She and her sister exited
vehicle to examine the
pothole. She stated that the hole was about two feet long and
approximately four inches deep.
She had travelled the same route about two weeks prior to this
but had not run through
the pothole at that time.
The State is neither an insurer nor a guarantor of the safety of
motorists on the highways.
Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for the
respondent to be found
liable for the damages incurred, proof of notice, either actual or
constructive, of the defect in
question must be shown. As there was no such evidence presented,
claim must be denied.