James E. Williams, Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.


On April 15, 1987, at approximately 9:00 p.m., claimant's 1982 Mercury
Colony Park station
wagon operated by claimant's daughter, Carmel Pauley, struck a piece of
damaged road on
State Route 7/4. Claimant seeks $1,543.22 for the damage to her vehicle.

The claimant's daughter, Carmel Pauley, testified that at the time of
the accident she was
travelling between Craddocks Fork and Lick Creek, Boone County. Her
vehicle was coming
off Craddocks Fork hill when it struck and broken up area in the road.
The vehicle then went
down over the hill. She stated that the road is approximately 20 feet
wide at the point of the
accident. She alleged that this damaged portion of the road had been in
existence for two
months prior to this accident. She drove this area every day and was
aware of the defective
condition of the roadway. She had never personally reported the
condition of the road to the

Claimant testified that she had reported the condition of the road to
the respondent. Notice
was given by her previous to this accident. She stated that to her
knowledge no representative
of respondent had checked the area before this accident. She did not
have the vehicle repaired
and it was repossessed.

The State is neither an insurer nor guarantor of motorists travelling
on its highways. Adkins vs.
Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). For negligence of the
respondent to be shown,
proof of notice of the defect in the road is required. Davis Auto Parts
vs. Dept. of Highways,
12 Ct.Cl. 31 (1977). In this case the claimant testified that she had
reported the road condition
and no action had been taken. This was not denied by the respondent.
However, the Court
believes that the driver of the vehicle, with her prior knowledge of the
road condition, was
likewise negligent. She travelled the road daily and knew of the
existence and the location of the
damaged section of the roadway. Under the doctrine of comparative
negligence, the Court is of
the opinion that the negligence of the driver of the vehicle was equal
to or greater than that of the
respondent and disallows the claim. Bradley vs. Appalachian Power Co.,
256 S.E.2d 879

Claim disallowed.