OPINION ISSUED JANUARY 28, 2000
CHRISTINA SELMAN
VS.
DIVISION OF HIGHWAYS
(CC-98-191)
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for damages sustained to her
vehicle as her friend was driving her vehicle and it went into two
holes while they were traveling together on Route 20. The incident
occurred in the vicinity of the Little Glade Baptist Church at
milepost 2-½ between Camden-on-Gauley and Cowen. Route 20 is a
road maintained by respondent in Webster 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 May 22,
1998, at approximately 8:00 to 9:00 p.m. On the clear night in
question, claimant's friend, Kenneth Green, was driving her vehicle
on Route 20 near the location of the Little Glade Baptist Church
which was situate on the right side of the road. The headlights of
claimant's 1990 Dodge Daytona were operating at the time. Route 20
is a priority one, two-lane, blacktop highway with a double yellow
line as the centerline and white lines indicating the edges of the
pavement. Each lane of Route 20 is about eight to ten feet in
width. Claimant and her friend frequently travel this portion of
Route 20 but were not aware of any holes in the paved surface of
the road. Furthermore, neither claimant nor her friend were aware
of any warning devices at the scene.
As Mr. Green drove on the straight stretch of Route 20 at a
speed of forty miles per hour in the fifty-five mile per hour speed
zone with no traffic in front of or behind him, the vehicle
suddenly and almost simultaneously struck two separate holes, two
to two and one-half feet wide and eighteen inches deep, on the
right side of the road surface of Route 20. The holes were
described as extending six to eight inches into the berm at the
side of the pavement and into the paved portion of the road some
twelve to fifteen inches. The impact burst both of the tires on
the right side of the vehicle with other structural damage as well.
Mr. Green drove the vehicle to the residence of another friend for
repairs. The following day, claimant stated that she contacted
respondent and reported the incident. The damaged sustained to the
vehicle was in the amount of $1,288.96. Claimant's liability motor
vehicle insurance policy did not provide coverage for this
incident.
The position of respondent was that it did not have notice of
the hole on Route 20 in Webster County. A review of respondent's daily records indicates that there were no complaints regarding any
holes near milepost 2-½ on Route 20 around the date of the
incident, but respondent did not deny the possibility that claimant
contacted its local office. Later that summer, respondent re-paved
this portion of Route 20.
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 November 4, 1999, hearing
establish that respondent had notice of the existence of the holes
on Route 20 in Webster County at the location of claimant's
accident. It is the opinion of the Court that the size and location
of the holes on Route 20 establish that they had been there for
some time; therefore, respondent had constructive notice of the
condition of the road. Additionally, respondent did not have
record of claimant's complaint, but did not deny that claimant
could have complained. If so, there could have been prior
complaints without record. Consequently, there is sufficient
evidence of negligence upon which to base an award.
Notwithstanding respondent's negligence, the Court is also of
the opinion that the driver was negligent in the operation of
claimant's vehicle. Mr. Green failed to operate claimant's vehicle
in such a manner as to avoid the holes which were in their travel
lane. Consequently, the Court imputes the negligence of the driver
to claimant, herein. In a comparative negligence jurisdiction,
such as West Virginia, a finding of negligence can reduce or bar
recovery of a claim. Based on the above, the Court finds that the
driver was 30% negligent for the incident that occurred. Since the
driver's negligence is not greater than or equal to the negligence
of respondent, claimant may recover 70% of the loss sustained.
In view of the foregoing, the Court is of the opinion to and
does make an award to claimant in the amount of 70% of the damages
for a total award of $902.27.
Award of $902.27.
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