OPINION ISSUED JUNE 8, 2000
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage which occurred
as a result of her vehicle striking a hole while her son and a
friend were traveling in the center westbound lane of I-64, near
the Montrose exit, in South Charleston. This portion of I-64 is a
road maintained by respondent in Kanawha County. The Court is of
the opinion to deny this claim for the reasons more fully stated
The incident giving rise to this claim occurred on May 5,
1996, at approximately 9:00 p.m. On the cloudy night in question,
claimant's son, Alberto B. Fernandez and a friend, Christina
Newman, were proceeding toward West Virginia State College from a
trip to Norfolk, Virginia, in claimant's four door 1994 Toyota
Corolla. As Mr. Fernandez drove the vehicle at a speed of about
sixty miles per hour along I-64 with the aid of the vehicle's
headlights, it suddenly struck a hole that covered a third of the
center travel lane, near the Montrose exit. As the vehicle
approached the Dunbar exit, Mr. Fernandez began to have difficulty
driving the vehicle and he stopped to inspect the vehicle. The
encounter with the hole burst the vehicle's left front tire and
broke the wheel rim. The following day, Mr. Fernandez had the tire
and wheel rim replaced. In addition, the vehicle required
realignment. Claimant sustained a total loss in the amount of
$320.41, however, claimant's motor vehicle insurance policy has a
deductible feature of $200.00 and any recovery would be limited to
that amount. Sommerville, et al. vs. Div. of Highways, 18 Ct. Cl.
The position of respondent was that it was not on notice of
the hole in the center westbound travel lane of I-64 in South
Charleston, Kanawha County. According to the daily log entries of
transportation crew supervisor II Stephen Wayne Knight, once
respondent received notice of the hole later in the night, it went
immediately to the scene to patch the hole with cold mix asphalt
until the following day when the lane could be closed down and the
hole repaired with hot mix asphalt. Respondent had no prior notice
of the hole.
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 present claim, the evidence adduced at the March 23,
2000, hearing does not establish that respondent had notice of the
condition in the center westbound travel lane of I-64, Kanawha
County. The evidence presented by claimant failed to establish
that respondent did not take reasonable steps to ensure the safety
of motorists on I-64. Consequently, there is insufficient evidence
of negligence 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