OPINION ISSUED NOVEMBER 24, 1986
JERRY ALLEN TACKETT
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
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
mile south of Bias
Branch. Bias Branch is about eight miles from Madison, Boone
Claimant's vehicle, in an
attempt to avoid an oncoming vehicle, struck a pothole. A tire and
aluminum wheel were
damaged in the amount of $375.12.
The claimant testified that this incident occurred at dusk. It had
raining earlier, but was
not raining at this time. He was travelling at a speed of
40 miles per hour. He
stated that there were quite a few holes in this area. He travelled
section of road every day
and admitted that the hole had probably been there the day before
incident. The claimant
suggested that his father had contacted respondent before this
regarding the potholes.
Although the respondent may have had actual notice of the poor
of this road, the
claimant was familiar with the route and should have taken
necessary to avoid
striking the hole in the road [Matthew v. Dept. of Highways,
It is the opinion of the Court that although the respondent may
been negligent, the
negligence of the claimant was equal to or greater than that of the
respondent. The Court
therefore denies the claim.