OPINION ISSUED FEBRUARY 14, 1989
DEBRA LYNNE MORTON AND KENNETH PAUL MORTON
DEPARTMENT OF HIGHWAYS
Claimant Debra Lynne Morton appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
On October 24, 1987, claimant Debra Lynne Morton was driving a
Renault Alliance on
U.S. Route 220 near Keyser, Mineral County, when the automobile
hole. As the
automobile is titled in both claimant Debra Lynne Morton's name and
of her husband, the
Court upon its own motion amended the style of the claim to include
name of Kenneth Paul
Claimant testified that she had gone to pick up her mother in
West Virginia, and was
returning to her residence in McCoole, Maryland, when the incident
occurred. It was clear
weather and the road is a two-lane, hard surfaced highway. It had
week since she
travelled this route. She was aware of the presence of the hole,
was not certain of its
exact location. She was travelling at approximately 30 miles per
She stated that the hole
was located on a bridge. She determined that the hole is
eight inches deep and as
big "... as a manhole ..." The right front wheels of her vehicle
through the hole. She indicated
that she had been reimbursed by her insurance company in the amount
paid the first $100.00 of the damages as their deductible.
The law of West Virginia is well established that the State
insures nor guarantees the
safety of motorists on its highways. Adkins vs. Sims, 130 W.Va.
S.E.2d 81 (1947).
For the respondent to be found liable for damages caused by road
of this type, the
claimants must prove that the respondent had actual or constructive
notice of the defect and a
reasonable amount of time to take corrective action. Davis vs.
Highways, 12 Ct.Cl.
31 (1977); Hoskins vs. Dept. of Highways, 12 Ct.Cl. 60 (1977);
Highways, 13 Ct.Cl. 310 (1980). As there was no such evidence
this claim must be