OPINION ISSUED FEBRUARY 22, 1991
REGINALD CUNNINGHAM AND IRENE BARKLEY
DIVISION OF HIGHWAYS
Claimant appeared in his own behalf and for Irene Barkley, co-owner of the damaged vehicle.
James D. Terry, Attorney at Law, for respondent.
On a clear and dry October 27, 1989, evening, claimant Reginald Cunningham was driving his 1988
Nissan Sentra on State Route 9 near the turn-off for the Berwind Country Store in McDowell
County. As he approached the turn-off for the store, his vehicle struck a hole in the road. claimant
could not estimate the size or depth of the hole. The impact punctured a left front tire and produced
a slow leak in the left rear tire. Both hubcaps and rims for the left side of the car were bent. An
estimate obtained from a Nissan dealership two weeks after the accident indicates that replacement
of the described items will cost $344.57. The claim submitted is for the amount of $350.51. Claimant
testified that he did not notify respondent of this accident, nor did he contact law enforcement
Respondent avers no knowledge of the defect complained of. Respondent further argues that this
claim submitted December 1, 1990, was the first and only notice it has received concerning a hole
in Route 9 in the area of Berwind Country Store. Accordingly, respondent asserts a lack of notice
of this alleged hazard.
The law governing such a claim is well settled. For the respondent to be held liable for damage
caused by a hole in the road surface, it must have had either actual or constructive notice of the
defect and a reasonable amount of time to take corrective action. Davis vs. Department of Highways,
11 Ct. Cl. 150 (1977). As the claimant has failed to prove that respondent knew or should have
known that a dangerous hole was present in the road, the claim must be denied.