OPINION ISSUED MAY 4, 2000
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr & Xueyan Zhang, Attorneys at Law, for
Claimant brought this action for vehicle damage which occurred
when her vehicle struck a hole in the pavement of U.S. 60 while she
was traveling outside of Montgomery, near Cedar Grove in Kanawha
County. The highway in question is maintained by respondent in
Kanawha County. The Court is of the opinion to deny this claim for
the reasons more fully set forth below.
The incident giving rise to this claim occurred on April 17,
1994, at approximately 9:45 p.m. On the night in question,
claimant was traveling from Montgomery, near West Virginia
University Institute of Technology, to Charleston in her 1993 Dodge
Daytona. As claimant proceeded at a speed of about forty miles per
hour, her vehicle suddenly struck a hole located near the
double-yellow line delineating the center of the road. The impact
with the defect in the road caused the vehicle's left front tire to
burst and damaged the tire on the other side. After the incident,
a policeman arrived at the scene and informed claimant of an Exxon
station in the vicinity. Claimant then drove her vehicle to the
Exxon station where an attendant replaced the damaged tire with the
spare tire. The resulting damage to claimant's vehicle was in the
amount of $318.74. Claimant has a deductible feature of $250.00 in
her motor vehicle insurance policy coverage which would limit any
recovery to that amount. See Sommerville, et al. vs. Div. of
Highways, 18 Ct. Cl. 110 (1991).
Respondent did not produce any witness or other evidence in
this claim, but agreed to submit the claim upon testimony taken on
the 10th day of October, 1997. This claim had been scheduled on
several occasions prior to the 23rd day of March, 2000, when
claimant was able to appear. She agreed to submit the claim to the
Court for determination on that date.
The well established principle of law in West Virginia is that
the State is neither an insurer nor a guarantor of the safety of
travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46
S.E.2d 81 (1947). In order to hold respondent liable for road
defects of this type, claimant must prove that respondent had
actual or constructive notice of the defect and a reasonable time
to take corrective action. Chapman vs. Dept. of Highways, 16 Ct.
Cl. 103 (1986).
In the instant claim, claimant failed to establish that respondent had knowledge of the hole on the road between Montgomery
and Charleston. Consequently, there is insufficient evidence of
negligence on the part of respondent upon which to base an award.
In accordance with the findings of fact and conclusions of law
stated herein above, the Court is of the opinion to and does deny