OPINION ISSUED DECEMBER 3, 1987

LESTER B. ALLEN AND
THELMA M. ALLEN
VS.
DEPARTMENT OF HIGHWAYS

(CC-87-83)

Claimants appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.

PER CURIAM:

On February 26, 1987, the claimants were travelling in their 1985 Delta
88 Oldsmobile on
Route 103 when the vehicle struck holes in the road. They seek $106.18
for damages to the
vehicle.
Claimant Lester B. Allen testified that he and his wife live in Gary,
Mcdowell County, West
Virginia. At the time of this incident, they were returning to their
home by means of Elkhorn
Mountain. It is a two-land, blacktop road, and Mr. Allen was operating
his vehicle at
approximately 25-30 miles her hour. It had rained heavily and water was
standing in the road.
As a result, he was unable to see the holes. The impact of the holes
with the automobile cause
damage to the automobile's tire and rim. He driver this route twice a
week, and he was aware of
the existence of the holes before the accident. He does not recall
whether he complained to
respondent about these specific holes.

Proof of actual or constructive notice is a prerequisite to
establishing negligence on the part of
the respondent. David Auto Parts vs. Dept. of Highways, 12 Ct.Cl. 31
(1977). Respondent
did not have notice of these particular holes in the road in time to
take action to prevent this
accident. Since negligence, therefore, is not shown, and since the State
is neither an insurer nor a
guarantor of the safety of motorists on its highways Adkins vs. Sims,
130 W.Va. 645, 46
S.E.2d 81 (1947), this claim must be denied.

Claim disallowed.