OPINION ISSUED SEPTEMBER 8, 1999
CORNELIUS R. LEWIS
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for the respondent.
Claimant brought this action for vehicle damage which occurred
as a result of an encounter with a hole on Route 19 (Robert C. Byrd
Drive), southbound between Beckley and Mt. Hope, which road is
maintained by respondent in Raleigh County.Testimony from the
hearing on May 7, 1999, indicated that the hole was on the
southbound side of Route 19. However, testimony and an observation
of a map of West Virginia's state highways shows that the claimant
was actually traveling northbound. Accordingly, the Court takes
official notice of this fact. The Court is of the opinion to make
an award in the claim for reasons more fully stated below.
The incident giving rise to this claim occurred on February
17, 1998, at about 11:00 p.m. After work, claimant was taking a
friend home, who lived in Beckley. At the time in question, there
was minimal traffic flow on the road. The weather that night was
clear and the road was dry. Claimant was traveling at about fifty
miles per hour, which was the speed limit. After dropping his
friend off, he proceeded through a stop light when his vehicle's
passenger-side tire struck a hole. The hole was located on the
southbound, far right lane of the four lane highway. The hole was
a few inches deep, eight to ten inches wide, and about one foot in
length. Claimant had traveled on this portion of Route 19 before,
but he had not seen the hole prior to February 17, 1998.
After traveling two to three hundred feet from the hole,
claimant stopped and checked his vehicle. The passenger wheel of
the claimant's 1995 Pontiac Tran Sport had burst and the alignment
was knocked out of place. The resulting damage to claimant's
vehicle was $171.72. This amount was less than his insurance
deductible of five hundred dollars.
Following the accident, claimant reported the road defect to
the respondent's Skelton office.
Respondent acknowledged that it had prior knowledge of the
hole in question. On February 9, 1998, respondent's employees had
patched the hole. Cold mix asphalt was used to fill the hole,
since hot mix asphalt is unavailable during the winter.
Unfortunately, due to inclement weather, the cold mix had come out
of the hole. According to respondent's daily reports, no further
was work done nor were there any further complaints made about this
portion of Route 19 until claimant's accident.
The well established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of
motorists 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. Pritt vs. Dept. of Highways, 16 Ct.
Cl. 8 (1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
Respondent is well aware of the propensity of cold mix to come
out of patched holes, and respondent has a duty to maintain those
areas on priority roads in a more diligent manner.
In the present case, the evidence established that respondent
knew about the hole in the far right lane of the south bound side
of Route 19, which is a priority road. Likewise, respondent's
knowledge of the hole resulted in repair work to the hole in
question. The Court is of the opinion that respondent did not take
reasonable steps to ensure the safety of those on Route 19, a
priority road, and respondent should have been more vigilant.
Consequently, there is sufficient evidence of negligence to base an
award. In view of the foregoing, the Court is the opinion to and
does make an award to claimant in the amount of $171.72 for the
damages to his vehicle.
Award of $171.72.