OPINION ISSUED NOVEMBER 24, 1986
JERRY ALLEN TACKETT
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-86)
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
PER CURIAM:
On February 18, 1986, at approximately 8:45 P.m., the claimant was
operating his 1983
Shelby Charger in a southerly direction on State Route 18 a quarter
of a
mile south of Bias
Branch. Bias Branch is about eight miles from Madison, Boone
County.
Claimant's vehicle, in an
attempt to avoid an oncoming vehicle, struck a pothole. A tire and
an
aluminum wheel were
damaged in the amount of $375.12.
The claimant testified that this incident occurred at dusk. It had
been
raining earlier, but was
not raining at this time. He was travelling at a speed of
approximately
40 miles per hour. He
stated that there were quite a few holes in this area. He travelled
this
section of road every day
and admitted that the hole had probably been there the day before
this
incident. The claimant
suggested that his father had contacted respondent before this
incident
regarding the potholes.
Although the respondent may have had actual notice of the poor
condition
of this road, the
claimant was familiar with the route and should have taken
precautions
necessary to avoid
striking the hole in the road [Matthew v. Dept. of Highways,
CC-85-172
(1986)].
It is the opinion of the Court that although the respondent may
have
been negligent, the
negligence of the claimant was equal to or greater than that of the
respondent. The Court
therefore denies the claim.
Claim disallowed.
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