OPINION ISSUED APRIL 2, 1992
THOMAS V. FORTUNE, II
DIVISION OF HIGHWAYS
Claimant represents self.
Glen A. Murphy, Attorney at Law, for respondent.
On February 12, 1980, at approximately 7:00 p.m., the claimant's automobile struck a hole in the
westbound lane of State Route 10 near the Ellis Addition triangle in Logan County. The impact with
the hole broke the front left rim, and permanently damaged the front left tire of the claimant's 1987
Ford Merkur. The hole was described only as a large hole, approximately 50 feet after the stoplight
at the intersection of Route 10 and Route 119. The claimant's automobile struck the hole after
claimant first stopped at the intersection and then proceeded at a speed between five to seven
miles-per-hour. A certificate of insurance requested by the Court indicates that the claimant
maintained full liability, collision, and comprehensive automobile insurance with Allstate. His
collision and comprehensive deductibles as they appear on the certificate are in the amount of
$250.00. The claimant requests reimbursement in the amount of $515.39, for the replacement of one
tire, one rim, and an alignment. He testified that no claim for damages was turned in to Allstate.
Th respondent denied any negligence and, more specifically, denied that it had notice of the
existence of the defect in the road. A witness for the respondent, Hobart Adkins of the Logan County
Highway Maintenance Office, testified that he recalled a problem with a particular hole in the area
of the claimant's accident, but neither this witness nor the claimant could identify with specificity
the problem area.
The issue before the Court is whether the respondent had prior notice and a reasonable amount of
time to correct the road defect before the claimant's accident. The record in this claim establishes that
the respondent did not have prior notice of the defect in the road, and the claimant has failed to prove
otherwise. The burden of proof is upon the claimant to demonstrate with a preponderance of the
evidence that the respondent had actual or constructive notice of the road defect. That burden has
not been met. The State is neither an insurer nor a guarantor of the safety of persons traveling on its
highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). For the respondent to be held liable
for damage caused by the road defect, it must have had actual or constructive notice of the condition
and a reasonable amount of time to take corrective action. Davis v. Dept. of Highways, 11 Ct. Cl.
150 (1977). The Court is of the opinion that the requisite notice was not provided to respondent.
Accordingly, this claim must be disallowed.