OPINION ISSUED SEPTEMBER 8, 1999
LINDA L. FOSTER
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for the respondent.
Claimant brought this action for vehicle damage which occurred
as a result of an encounter with a hole in the right-hand lane of
Route 79/3, Cabin Creek Road, coming out of Kayford, which is a
road maintained by the respondent in Kanawha County. The Court is
of the opinion to deny the claim for the reasons more fully stated
The incident giving rise to this claim occurred on March 28,
1998 at approximately 5:00 to 6:00 p.m. The weather was sunny and
clear. Claimant was proceeding along Route 79/3 at about twenty to
thirty miles per hour. Furthermore, claimant was traveling in the
right-hand lane of Route, Cabin Creek Road, coming out of Kayford,
West Virginia, when her vehicle struck a hole in the road. Having
moved back to this particular area, claimant had not traveled on
Route 79/3 in several years prior to the March 28, 1998 accident.
Claimant maintained that she did not see the hole until after the
collision. However, on cross-examination, the claimant maintained
that she could not avoid the collision with the hole because she
had been confronted by oncoming traffic. As a result of the
accident, claimant suffered two bursted tires and a bent rim on her
1986 Chevy Caprice Classic. Unfortunately, claimant only had
liability insurance coverage on her vehicle, which precluded any
reimbursement from her insurance carrier. Claimant suffered a loss
of $325.15. No documentary evidence was introduced by the claimant
to prove these expenses at the June 11, 1999 hearing.
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).
In the present case, claimant never established that
respondent was put on notice about the hole on Route 79/3, Cabin
Creek Road, in Kanawha County. There was no evidence presented by
claimant that the respondent did not take reasonable steps to
ensure the safety of Route 79/3. Respondent did not have ample
opportunity to make repairs to the road in question. Nor was there
evidence presented by claimant that respondent should have been
more vigilant. Consequently, there is insufficient evidence of negligence to base an award. Claimant is not entitled to an award
for her loss. Therefore, in view of the foregoing, the Court
hereby denies this claim.