OPINION ISSUED JANUARY 28, 2000
DAVID W. BURGE
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney t Law, for respondent.
Claimant brought this action for vehicle damage sustained when
his vehicle struck a hole while traveling northbound on the I-79
Buffalo Creek bridge near the Gassaway exit. I-79 is a highway
maintained by respondent in Braxton 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 August 16,
1998, at approximately 7:00 p.m. On this rainy evening, claimant
was traveling northbound towards Flatwoods from the Beckley exit
along I-79 in his customized 1982 Chevrolet S-10 Pick-up truck at
a speed of sixty-five miles per hour in a seventy mile per hour
speed zone. Claimant travels this portion of highway several times
each week for his employment as a security guard. On these prior
occasions, claimant has never noticed any cones, barrels, flagmen
or any signs indicating any potentially hazardous conditions on the
highway surface of I-79. As claimant operated his vehicle in the
passing lane on the reinforced concrete overpass Buffalo Creek
bridge near the Gassaway exit, he suddenly observed a very deep
hole in the pavement on the bridge. Since there were two other
vehicles beside claimant's vehicle at that moment, he could not
maneuver his vehicle around the hole. The vehicle's front driver's
side struck the hole that was two feet inside the white line. The
impact burst the front driver side tire, damaged the rim and
bumper, ruptured the oil pan, and caused other damages. Afterward,
the vehicle was towed from the scene to the residence of the father
of claimant's girlfriend. The loss of the vehicle caused claimant
to miss a week of employment. Claimant sustained a total loss in
the amount of $1,460.30 for the following: the estimated damages
to the vehicle of $1,178.30; towing charges of $35.00; and
estimated wage loss of $247.00. Claimant's liability motor vehicle
insurance policy provided no insurance coverage for this incident.
Eventually, the vehicle was used as a trade-in on another vehicle.
The position of respondent was that the poor condition of the
highway was caused by the poor substructure which it had been
working on to repair. The condition of the surface of the bridge
had caused holes to form in its pavement. Respondent patrolled
this particular area several times per day to repair holes with
cold mix asphalt as needed. Respondent asserted that due to this condition, it gave the bridge a higher priority of care. Cold mix
asphalt was used to repair the holes because the location of the
hot mix plant was about seven miles from respondent. On August 14,
1999, and on August 15, 1999, respondent had been to the location
in question and repaired holes in the pavement. Apparently, by the
time of the incident, two days of rain had caused the cold mix
asphalt to come out of the hole. Since this incident occurred on
a Sunday, respondent's employees were not patrolling the bridge.
According to respondent, after receiving notice of the incident
herein from a member of the West Virginia State Police, employees
of respondent immediately went to the scene and repaired the hole.
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).
In the present claim, the evidence adduced at the November 4,
1999, hearing establish that respondent was negligent in its
maintenance of the Buffalo Creek bridge of I-79 in Braxton County.
The Court is of the opinion that respondent knew of the hazardous
condition on the Buffalo Creek bridge, and it had a duty to warn
motorists of the defective condition of the pavement on the bridge.
Even with the knowledge of the Buffalo Creek bridge's hazardous
condition, respondent failed to warn the traveling public.
Respondent's failure to provide some form of warning mechanism to
warn motorists about this hazard constitutes negligence for which
claimant may recover his loss. 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 $1,460.30.
Award of $1,460.30.