OPINION ISSUED MAY 19, 1992
ERNEST A. JOHNSON, JR.
DIVISION OF HIGHWAYS
Claimant represents self.
James D. Terry, Attorney at Law, for respondent.
During the month of February 1991, claimant was traveling on Route 73, also known as Saltwell
Road, in Marion County, West Virginia, when his vehicle struck a large crack in the road where the
blacktop had split. Claimant's vehicle, a 1977 Datsun, sustained damaged to a tire, a wheel, a shock,
the steering wheel, and the bottom of the vehicle was pushed up against the door. The cost of repair
to the vehicle was $703.10 and claimant sustained a back injury. The claim was submitted to the
Court upon the issue of liability only.
Respondent denies negligence as it alleges that it did not have notice of the defect in the road on the
date of claimant's accident.
Claimant testified that he lives in Shinnston, West Virginia, and he was to take as a trip to North
Carolina. It was approximately 8:30 p.m. and it was dark. Claimant was driving 35 miles per hour
when he came over a knoll in the road and his automobile passed over a groove or split in the
blacktop. Claimant was aware that the surface of the roadway was in a wavy condition, but he was
not aware that a slip had occurred.
William H. Wyckoff, respondent's assistant county maintenance supervisor for Harrison County,
testified that a slip had occurred at the site of claimant's accident. He stated that there was water
underneath the paved portion of the road which caused waviness and then the pavement broke. The
area was stabilized with stone and penetrated with tar to smooth out the road. He stated that this
worked temporarily, but that the road kept falling in. Permanent repairs required that Pile be driven
and this was done in the spring 1991. He further stated that the road
was rough in this area and that there were no warning signs placed in the area prior to the actual
crack appearing in the road. Signs were placed after claimant's accident.
The issue before the Court is whether the respondent had prior notice of the potential for a slip to
occur at the site of this accident and a reasonable amount of time to warn the traveling public. The
facts indicate that the respondent did have prior notice of a defect in the road and that respondent
failed to take the appropriate measures to warn the traveling public of the hazard. As the record
establishes that the respondent had actual notice of the road defect, the Court finds that respondent
was negligent is its maintenance of the road. It is the opinion of the Court that respondent had
sufficient notice of the potential for a major slip to occur in the surface of the road and failed to take measures to protect the traveling public.
Accordingly, the Court is of the opinion to make an award to the claimant and directs the Clerk of
the Court to set this claim for hearing upon the issue damages if the damages cannot be agreed to by
the parties and submitted to the Court in a stipulation.