OPINION ISSUED JULY 10, 1987
HARVEY H. BAUER AND SHIRLEY BAUER
DEPARTMENT OF HIGHWAYS
Claimant, Shirley Bauer, appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
This claim was originally styled in the name of Shirley Bauer, but
testimony indicated that
the vehicle, a 1986 Pontiac Grand AM, was titled in the name of
H. Bauer and Shirley
Bauer. The Court, on Ms. Bauer's motion, amended the style to
Harvey H. Bauer as an
Claimant Shirley Bauer testified that she was operating the
a northerly direction on
Route 61 between Crown Hill and East Bank, Kanawha Count, when the
vehicle struck a hole
in the pavement. She was alone in the vehicle at the time. The
occurred on August 24,
1986, at approximately 6:00 p.m. The weather was clear. The highway
road. It was not yet dark at the time of this incident. As a result
striking the hole, it was
necessary to replace a wheel and cover and to have the automobile
aligned in the amount of
Claimant Shirley Bauer testified that the hole was in the travel
portion of the highway. It was
located in the northbound lane, the lane in which she was
She described the hole as
being a three foot by three foot section in the pavement. She
that she had been
travelling in a straight path for approximately one hundred feet
her vehicle struck the hole.
Ms. Bauer alleges that someone was placing a new culvert at this
other locations and had
failed to place a warning sign. She admitted that she was not aware
whether respondent, a utility,
a contractor or some other individual was performing the work. She
not travelled the route
recently, at the time of the incident, and had not complained of
defect to the respondent.
James P. Dingess, County Supervisor for the eastern half of
respondent, testified that he reviewed respondent records.
had not been doing any
work just immediately prior to the date of this incident. He
stated that on occasion,
contractors and utility companies alter the surface of highway in
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 Commission, 8 Ct.Cl. 35 (1969).
the respondent to
be found liable for damages caused by road defects of this type,
claimant must prove that
the respondent had actual or constructive notice of the defect.
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