OPINION ISSUED NOVEMBER 24, 1986
PAUL R. THOMAS
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
On February 28, 1986, at approximately 7:30 P.M., the claimant was
driving his 1972
Oldsmobile 98 on Hale Branch Road outside of Barboursville, Cabell
County. There was some
blacktop loose in the road at this location and as claimant's
proceeded over the
blacktop, the blacktop caused the vehicle to come up off the road.
impact caused damage
to the vehicle. The claimant had an estimate for the necessary
It was determined that the
damage would exceed the cost of the vehicle. The claimant had paid
$600.00 for the vehicle.
The claimant testified that he was travelling approximately 20-25
per hour from his job at
the United Parcel Service in Huntington to his residence on Hale
Road. It was not
raining or snowing, and it was almost dark at the time of this
He stated that the front
wheel of the vehicle went over the blacktop. He travelled this
daily, and had not noticed
this condition in the road prior to the date of this incident. He
that, "I caused the condition
right at that moment." The record reveals that this hazardous
appeared suddenly. No
prior actual or constructive notice was given respondent. The Court
of the opinion that
negligence on the part of the respondent has not been established,
therefore, the Court
denies this claim.