OPINION ISSUED DECEMBER 12, 1986
KAREN SUE BISSETT
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
On April 9, 1986, at about 10:00 a.m., the claimant was operating
1979 AMC Spirit on
the one-lane Everson Bridge, near Route 19, Marion County. Claimant
passed over the
pothole, the existence of which was known to her. Upon seeing an
oncoming vehicle on the
one-lane bridge, she stopped and backed up and backed into the
thus damaging her
automobile. Damage to the vehicle amounted to $192.57. The claimant
testified that she had
travelled this bridge several times before the incident and was
the existence of the
pothole. She was not able to state definitely that the hole had
present for the winter, but
she could state that it had been in existence in March, the month
The State is neither an insurer nor a guarantor of the safety of
motorists on its highways.
Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for
respondent to be found
liable for damages caused by the pothole, proof of actual or
constructive notice must be shown.
Davis Auto Parts v. Dept. of Highways, 12 Ct.Cl. 31 (1977).
notice of the pothole
was present in this case, but claimant's prior knowledge of the
makes her likewise
negligent. Under the doctrine of comparative negligence, the Court is of
the opinion that the
claimant's negligence was equal to the respondent's and disallows
claim. Merrill v. Dept. of
Highways, 15 Ct. Cl. 196 (1984).