OPINION ISSUED MARCH 3, 1989
JAMES H. STURGEON
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
Claimant, accompanied by his wife in his automobile, had turned
from MacCorkle Avenue
southwest onto Riheldaffer Avenue on June 14, 1988, at
7:00 p.m. There was a
drain with a grate located to the right side of the lane, and
vehicle went into the hole
created by the drain. The beauty rings on his 1984 Ford Tempo
replacement for which
he seeks $31.04.
Claimant testified that it was a clear day, and that visibility
approximately one hundred
yards. He stated that the grate was recessed about six inches and
it was a the right edge of
Riheldaffer Avenue. It is a narrow street. His speed was
ten mile per hour. He
had not seen the drain hole before his automobile struck it. At the
the automobile struck the
hole, there were no vehicles approaching claimant's vehicle on
After the accident, claimant found the beauty ring from his
"... off to the side." He
did not know how the beauty ring became damaged. It is possible
or another driver ran
over the ring, and it was damaged in that manner.
The Court has consistently held that the State is neither an
nor a guarantor of the safety
of motorists travelling on its highways. Adkins vs. Sims, 130 W.Va.
has been charged with the qualified duty of reasonable care and
diligence in the maintenance of
the highway under all circumstances. Parsons vs. State Road Comm'n,
Ct.Cl. 35 (1969).
The Court has concluded that the claimant has not established by a
preponderance of the
evidence that respondent has failed in this duty of reasonable care
diligence. It would be
speculation on the part of the Court to hold that the recessed
the proximate cause of
the damage to claimant's automobile. The Court is therefore of the
opinion to deny the claim.