OPINION ISSUED APRIL 2, 1992
THOMAS C. FERREBEE, JR.
DIVISION OF HIGHWAYS
Claimant represents self.
James D. Terry, Attorney at Law, for respondent.
Claimant brought this action to recover damages to his vehicle which occurred when it struck the
stub portion of a missing stop sign at the intersection of the Elkview Exit on Interstate 79. The
incident occurred on September 23, 1991, at approximately 5:00 a.m. It was raining and foggy.
Claimant's vehicle sustained damage to the exhaust system and oil pan. The cost of repairs is
Respondent denies negligence for this incident as it did not have notice of the missing stop sign.
Claimant testified that he was on his way to work when he and a traveling companion decided to get
off Interstate 79 at the Elkview Exit. He was following a van which ran over the post when it
preceded through the intersection to turn left. The claimant's vehicle went over the post when he
followed the van. The stub portion of the stop sign was six-to-eight inches high. The claimant was
not familiar with this area. He was not aware that the stub of the stop sign was sticking up in the
roadway until his vehicle struck it.
Richard L. Bailey, an employee in respondent's sign shop, testified that he was notified that the stop
sign was missing on September 24, 1991. he investigated the situation wand replaced the stop sign
immediately. He indicated that this are was newly constructed because a mall had just been built at
the intersection. He stated that there was an area of white reflective tape about 12 inches wide at the
location for the stop sign. The tape had been placed in June 1991 and was present on the date of
The issue before the Court is whether the respondent had prior notice and a reasonable amount of
time to correct the situation prior to the claimant's accident. The facts indicate that the respondent
did not have prior notice, 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. This burden has not been sustained. As the State is neither an
insurer nor a guarantor of the safety of persons traveling on its highways, the Court must deny this
claim. 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 missing stop sign, it must have had actual or constructive notice of the
condition and a reasonable amount of time to take correction action. Davis v. Dept. of Highways,
11 Ct. Cl. 150 (1977). It is the opinion of the Court that respondent did not have the required notice
of the missing stop sign at this intersection.
In accordance with the findings of the Court, this claim must be denied.