OPINION ISSUED APRIL 2, 1990
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
James D. Terry, Attorney at Law, for respondent.
On June 11, 1989, claimant's vehicle, a 1982 Monte Carlo, struck a hole on County Route 13, in
Mingo County, 1/4 mile south of the Braisden Post Office. Damage to the vehicle resulted in the
replacement of the inner fender, a wheel, and a tire. The automobile also required alignment. Total
estimated cost for repair was $299.72.
Claimant testified that she was traveling in a southerly direction at approximately 10:30 a.m. The
weather was good and the pavement was dry. Her speed was estimated to be 30 miles per hour along
the two-land highway. Since a large truck was traveling in the opposite direction, the claimant was
unable to avoid the hole. Claimant drove this route frequently, and admitted that she was aware of
the existence and location of the hole.
The Court believes that the respondent had constructive notice of this hole due to its existence for
some length of time. Therefore, the respondent was negligent. However, the Court further believes
that the claimant, with her prior knowledge of the road's condition, was equally negligent, and her
negligence was equal to or greater than that of the respondent. Under the doctrine of comparative
negligence, the Court is of the opinion to, and does, deny the claim.
Claim is disallowed.