OPINION ISSUED FEBRUARY 19, 1988
JOHN F. BARILE
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
On September 19, 1986, the claimant was driving his 1985 Buick on
Route 50 in an
easterly direction. Concrete had fallen from the 13th Street Bridge
above U.S. Route 50 and
claimant's vehicle struck this concrete. The claimant seeks $64.99
damage done to the tire to
Claimant testified that at the time of the accident, the weather
nice. It was just beginning to
get dark. He was travelling at approximately 10-15 miles per hour.
accident occurred at
about 7:25 p.m. He travels this route every day, and had travelled
earlier the date of the
incident. On his previous trip, the claimant had not observed the
concrete debris on the
highway. He had no knowledge of when respondent was notified
condition of U.S. Route 50.
Stephen Randall Harris, a district bridge engineer with respondent
District 4, testified that he
was familiar with the bridge in question. He checked respondent's
records to ascertain that there
was damage to the bridge on the date of this accident and that
respondent was notified of this
fact at 7:19 p.m. The area was cleared of debris at 7:52 p.m. He
no evidence in the
records of any notification to respondent prior to 7:19 p.m. on
September 19, 1986.
Francis E. Knight, former supervisor of APD 50, Tunnel Hill for
respondent, testified that he
arrived at the accident scene at approximately 7:30 p.m. He had
notified by the district of
the problem on U.S. Route 50 at 7:19 p.m. He had no knowledge of
damage to the bridge
itself or concrete on the roadway below prior to the notification
The State is neither an insurer nor a guarantor of the safety of
motorists on its highways.
Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for
respondent to be
found liable for the damages incurred, proof of notice, either
constructive, of the defect
in question must be shown. The evidence in this record indicates
the dangerous condition
appeared suddenly, and that the respondent acted promptly to take
precautions as soon
as it became award of the problem. Barnhart vs. Department of
12 Ct.Cl. 236
(1979), Moore vs. Department of Highways, and Taylor vs. Department
CC-85-167 (OPINION ISSUED February 19, 1986). The Court is of the
opinion that negligence on
the part of the respondent has not been established and, therefore,
Court denies this claim.