OPINION ISSUED JUNE 27, 1988
BRADFORD R. CUNNINGHAM
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
This claim was originally styled incorrectly, and the Court, on
motion, amended the
style of the claim to reflect the Department of Highways as the
On July 27, 1987, at approximately 1:00 p.m., claimant was
north on I-79 at Exit 79
when his 1984 Chrysler Fifth Avenue struck a piece of angle iron in
road. The claimant was
travelling 55-60 miles per hour. As a result of the mishap, a tire
the vehicle was replaced in
the amount of $65.57.
Claimant testified that he was travelling in the left land passing
another vehicle at the time of this
accident. He attempted to straddle the piece of angle iron, but it
punctured the vehicle's left, rear
tire. He stated that it had been six months since he had driven
route prior to the accident.
Claimant's son, David Cunningham, was in the vehicle following
claimant's vehicle. He testified
that he observed his father's vehicle strike an object in the road.
stated that the object
appeared to be a piece of iron measuring approximately eight feet
length. He could not say
how long the object had been in the road.
Elmer Wine, Interstate Supervisor of I-79 for respondent, testified
that on July 27, 1987, his
crews would have travelled this portion of I-79 about 8:00 a.m. He
stated that he would have
travelled the area between 9:00 and 10:00 a.m. He received no phone
calls concerning the
presence of the angle iron on the highway prior to this accident.
The State is neither an insurer nor a guarantor of the safety of
motorists on the highways.
Adkins vs. Sims, 130 W.Va. 645, S.E.2d 81 (1947). In order for the
respondent to be found
liable for the damages incurred, proof of notice, either actual or
constructive, of the hazard in
question must be shown. As the claimant presented no such evidence,
claim must be denied.