OPINION ISSUED SEPTEMBER 8, 1999
JASON L. SHAFFER
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 while traveling northbound
on Route 2 from Point Pleasant, which is a road maintained by
respondent in Mason County. The Court is of the opinion to make an
award for the reasons more fully stated below.
The incident giving rise to this claim occurred on February
27, 1998, at approximately 1:00 p.m. Claimant is a member of the
United States Air Force and is stationed in Dayton, Ohio, at
Wright-Patterson Air Force Base. Following work, claimant was
traveling northbound on Route 2 in Mason County in order to go home
for the weekend. The location in question is twelve miles off Route
33 on Route 2 between Ripley and Point Pleasant. Route 2 is
two-lane road that is sixteen feet wide. Apparently, the hole on
the right berm of the road had eroded part of the road beyond the
white line, into the paved portion of the highway. The hole was
approximately four inches wide and six to eight inches deep.
The day in question was clear and there was no oncoming
traffic on Route 2 in Mason County. Claimant was traveling fifty
miles per hour in a fifty-five miles per hour speed zone.
Unfortunately, claimant's vehicle hit a hole in the right edge of
Route 2 in Mason County. Claimant did not know of the hole's
existence. The resulting damage to claimant's 1998 Cavalier Z24
was two bursted tires, two bent wheel rims, inner fender damage and
front-end alignment. The claimant's loss totaled $1,426.21.
Claimant had a deductible of $500.00 in his collision insurance
coverage. However, if claimant turned in the accident to his
insurance, his twenty percent discount for safe driving would be
lost, which would further cost claimant $540.00.
Respondent denied prior knowledge of the hole in question.
According to respondent's daily records no work was ever done nor
were there any further complaints made about this portion of Route
2 in Mason County. Further, respondent acknowledged that the road
was regularly inspected. However, respondent did not know how long
the eroded hole had been at this location.
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, the evidence established that respondent
was at least on constructive notice about the hole. The Court is
of the opinion that respondent did not take reasonable steps to
ensure the safety of Route 2 in Mason County. Respondent should
have been more vigilant. Consequently, there is sufficient
evidence of negligence upon to base an award. Therefore, in view
of the foregoing, the Court makes the following award to claimant
which is limited to the deductible feature of his collision
Award of $500.00.