OPINION ISSUED DECEMBER 3, 1987
LESTER B. ALLEN AND
THELMA M. ALLEN
DEPARTMENT OF HIGHWAYS
Claimants appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
On February 26, 1987, the claimants were travelling in their 1985
88 Oldsmobile on
Route 103 when the vehicle struck holes in the road. They seek
for damages to the
Claimant Lester B. Allen testified that he and his wife live in
Mcdowell County, West
Virginia. At the time of this incident, they were returning to
home by means of Elkhorn
Mountain. It is a two-land, blacktop road, and Mr. Allen was
his vehicle at
approximately 25-30 miles her hour. It had rained heavily and water
standing in the road.
As a result, he was unable to see the holes. The impact of the
with the automobile cause
damage to the automobile's tire and rim. He driver this route twice
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.
did not have notice of these particular holes in the road in time
take action to prevent this
accident. Since negligence, therefore, is not shown, and since the
is neither an insurer nor a
guarantor of the safety of motorists on its highways Adkins vs.
130 W.Va. 645, 46
S.E.2d 81 (1947), this claim must be denied.