OPINION ISSUED JULY 8, 1987
WILLIAM C. HUNTER
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
The claimant's wife, Martha Elizabeth Hunter, was operating her
husband's vehicle in a
westerly direction on Kanawha Turnpike, Kanawha County when the
struck a pothole.
The incident occurred on February 23, 1986, at approximately 12:15
It was dark and it
had been raining earlier in the evening. The vehicle is a 1978
Omni. As a result of the
incident, two rims and a tire on the automobile were damaged in the
amount of $98.51.
Claimant's wife testified that she had picked up her daughter and
friend of her daughter at the
skating rink in Kanawha City. The girls accompanied her in the
She stated that she was
familiar with that section of the Kanawha Turnpike, and she had
the pothole previous
to the incident. She drove this route daily both at night and
day. She noted that there
were numerous potholes that had been patched. She had not notified
respondent of the
condition of the road.
Mr. Joseph L. Lilly, employed by the respondent as a foreman for
last six years stated that
his duties include maintenance on the Kanawha Turnpike, which has
designation of Route 12.
He had receive no complaints regarding this particular pothole.
The law of West Virginia is well established that the State is
an insurer nor a guarantor
of the safety of persons travelling on the highways. Adkins vs.
130 W.Va. 645, 45
S.E.2d 81 (1947); Parsons vs. State Road Commission, 8 Ct.Cl. 35
respondent to be found liable for damages caused by road defects of
type, the claimant must
prove that the respondent had actual or constructive notice of the
defect. Davis Auto Parts vs.
Department of Highways, 12 Ct.Cl. 31 (1977). Since the claimant
forth no evidence
to that effect and did not meet the burden of proof, this claim is