OPINION ISSUED DECEMBER 6, 1999
CLIFFORD S. SUMMERFIELD
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage which occurred
as a result of his vehicle striking a hole while he was traveling
eastbound on Route 60/14 (Kanawha Terrace), about one-half mile
west from McKinley Junior High School in Kanawha County. Route
60/14 (Kanawha Terrace) is a road maintained by respondent in
Kanawha 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 August 25,
1998, at approximately 6:30 to 7:00 p.m. At dusk that evening, the
weather was clear. Normally, claimant does not travel Route 60/14.
Route 60/14 is a two lane road that is about twenty-two feet wide,
with eleven feet per lane. As claimant proceeded along Route 60/14
at a speed of thirty to thirty-five miles per hour in a thirty
miles per hour speed zone, there was traffic on the road.
Unbeknownst to claimant, there was a hole on Route 60/14. The hole
was approximately eight to ten inches wide and eight inches deep.
When claimant observed the hole, he was unable to avoid a collision
because of oncoming traffic. Claimant's 1996 Chevrolet Prism
struck the hole. The resulting injury to claimant's vehicle was
that the passenger side front and rear wheels as well as struts had
to be replaced and the vehicle aligned. Claimant had a deductible
feature in the amount of $200.00 in his collision insurance
The position of respondent was it did not have notice that
there was a hole at this location. After an inspection of the area
in question, respondent was unable to find the hole in question.
While, the exact location of the hole was unknown, there has been
repair work on Route 60/14. There have been no further complaints
regarding a hole on Route 60/14.
The well established principle of law in West Virginia is that
the State is neither an insurer nor a guarantor of the safety of
motorist 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 claim, the evidence established that respondent
at least had constructive notice of the defect on Route 60/14. Photographic evidence introduced at the July 9, 1999, hearing
demonstrated that the hole on Route 60/14 was not a recent
condition. The Court is of the opinion that respondent did not
take reasonable steps to ensure the safety of travelers on Route
60/14. 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 to claimant limited to the sum of $200.00, the
deductible feature in claimant's collision insurance policy.
Award of $200.00