OPINION ISSUED JANUARY 28, 2000
MARGARET ANN SHIELDS
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage sustained when
her vehicle struck a hole while she was traveling on Indian Creek
Road near its junction with Route 16. Indian Creek Road is a road
maintained by respondent in Wyoming County. The Court is of the
opinion to make an award in this claim for the reasons more fully
set forth below.
The incident giving rise to this claim occurred on November
28, 1997, at approximately 2:00 to 3:00 p.m. On the clear day in
question, claimant was proceeding along a curvy two-lane section of
Indian Creek Road in her 1997 Cadillac at a speed of twenty-two to
twenty-seven miles per hour towards Welch, for a doctor's office
visit. While the vehicle is owned by Automotive Rentals, claimant
leased the vehicle through her employment with Mary Kay Cosmetics
and is responsible for its maintenance. Claimant rarely uses this
route and was last on the road about five to six months prior to
the incident. Suddenly, the vehicle struck a fourteen inch
diameter hole in the road surface, three inches deep, and about one
foot from the edge of the pavement. The impact burst a tire and
bent the wheel rim. The vehicle sustained damage in the amount of
$596.48. Within claimant's motor vehicle insurance policy, there
is a deductible feature of $1,000.00.
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).
The evidence adduced at the October 28, 1999, hearing
established that the hole on Indian Creek Road was not one that was
a recent occurrence. The Court is of the opinion that respondent,
at the least, had constructive notice that a hole in that condition
was a hazard to the traveling public. Consequently, there is
sufficient evidence of negligence upon which to base an award.
In view of the foregoing, the Court is of the opinion to and
does make an award in this claim in the amount of $596.48.
Award of $596.48.