OPINION ISSUED AUGUST 10, 1987
APRIL LYNN MARTIN
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
On February 18, 1986, between 7:00 a.m. and 8:00 a.m., the
1985 Dodge Omni on Route 60 near Amandaville in St. Albans, West
Virginia, when her
vehicle struck a pothole. Claimant seeks $134.58, which amount
represents the damage to the
vehicle. The Court, on its own motion, amended the style of the
Department of Highways as the proper party respondent.
The claimant testified that she was travelling to work at
45 miles per hour. She
cannot recall the weather conditions at the time of this incident,
does remember that it was
not raining. The highway is a four-lane road. She was initially
proceeding in the driving lane, but
due to the presence of potholes, she drove her vehicle into the
passing, lane. It was a this
point that her vehicle struck a pothole located in the alternate
She did not see the hole
before her vehicle struck it. She travels this route daily, but had
observed this hold on
The law of West Virginia is well established that the State is
an insurer nor a guarantor
of the safety of persons travelling on its highways. Adkins vs.
130 W.Va. 645, 45 S.E.2d
81 (1947); Parsons vs. State Road Comm'n., 8 Ct.Cl. 35 (1969). For
respondent to be
found liable for damages caused by road defects of this type, the
claimant must prove that the
respondent had actual or constructive notice of the defect. Davis
Parts vs. Dept. of
Highways, 12 Ct.Cl. 31 (1977). Since the claimant brought forth no
evidence to that effect and
did not meet the burden of proof, this claim is denied.