OPINION ISSUED SEPTEMBER 8, 1999
DELORIS B. YOUNG
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 after claimant exited
Harper Road (Route 3) onto Harper Park Drive, a road maintained by
respondent in Raleigh County. The Court is of the opinion to make
an award in this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on February
11, 1998, at about 6:30 - 7:00 p.m. After having been at work,
claimant was traveling home on Harper Park Drive, a two lane
highway that is twenty feet wide with ten feet per lane. At the
time in question, visibility was near zero due to fog and some snow
on the road. There was no lighting in the area. Claimant was
proceeding along Harper Park Drive at about ten to twenty miles per
hour. Due to the inclement weather conditions, claimant carefully
navigated her vehicle close to the right berm of the road.
Suddenly, claimant was blinded by the lights of an oncoming truck.
Her vehicle then struck a hole on the right side of the road.
Having recently moved to the area, claimant asserted that she had
not observed this hole prior to February 11, 1998. After her
vehicle hit the hole and traveled about five feet, she got out and
inspected her 1993 Nissan Sentra. The vehicle's tires were damaged
and the vehicle pulled to one side. The condition of claimant's
vehicle required her to obtain a rental vehicle. The resulting
damage to claimant's vehicle was $882.01, not including rental cost
of $286.20 and $40.00 in emergency repairs on the night of the
incident, required for claimant to drive her vehicle from the
scene. However, claimant had insurance coverage which covered all
but $576.20 of her total damages.
Shortly after the accident, acquaintances of claimant took
photographic evidence of Harper Park Drive and the hole in question
for use in her claim.
Respondent denied prior knowledge of the hole in question.
However, respondent had an office on George Street, which is an
adjacent street to Harper Park Drive. According to respondent's
daily reports, no work was done since December, 1997, nor were
there any further complaints made about this portion of Harper Park
Drive. Respondent acknowledged that Harper Park Drive was not
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 put on notice about the hole on Harper Park Drive. The
photographic evidence offered by claimant at the May 7, 1999,
hearing established that respondent knew or should have been put on
notice that the hole in question was a hazard. The Court is of the
opinion that respondent did not take reasonable steps to ensure the
safety of those using Harper Park Drive. Respondent should have
been more vigilant. Consequently, there is sufficient evidence of
negligence to base an award.
In view of the foregoing, the Court makes an award in the
amount of $576.20 to claimant for the damages to her vehicle.
Award of $576.20
ORDER ENTERED OCTOBER 1, 1999
WILLIE LEE DOTSON, AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF TRESA MYRETTA DOTSON, FOR
AND ON BEHALF OF THE SAID ESTATE
AND THE SURVIVORS THEREOF, AND
WILLIE LEE DOTSON, AS GUARDIAN,
NATURAL PARENT AND NEXT FRIEND OF
AUSTIN RYAN DOTSON, AN INFANT,
VS.VS.CLAIM NO. CC-97-388
DIVISION OF HIGHWAYS,
O R D E R
On a former day this claim came before the Court upon a Second
Stipulation filed by Jack H. Vital, III, counsel for the claimants,
and Andrew F. Tarr, counsel for the respondent, wherein the issues
of liability and damages have been agreed to by the parties,
And the Court, having duly considered the Second Stipulation
(signed by counsel for the claimants on the 24th day of August,
1999, and signed by counsel for the respondent on the 1st day of
September, 1999) and being of the opinion that it is in order, doth
Order that such Second Stipulation be and the same is hereby filed,
And the Court, having further determined that it has
jurisdiction in the premises, finds that the settlement of the
claims of the said Willie Lee Dotson, both as personal representative and as guardian, for the gross sum of $125,000, is
fair and reasonable, and the same is hereby approved, ratified and
It is, Accordingly, Ordered that an award of $125,000 be made
in this claim, allocated as follows:
(a) To Willie Lee Dotson, as Administrator of the Estate of
Tresa Myretta Dotson, deceased, the sum of $99,000, and
(b) To Willie Lee Dotson, as Guardian for Austin Ryan Dotson,
an infant, the sum of $26,000.
It is further Ordered that, as a condition upon the payment of
the award to him in the amount of $99,000, the said Willie Lee
Dotson, as Administrator of the Estate of Tresa Myretta Dotson,
deceased, execute a good and sufficient bond before the Clerk of
the County Commission of Mingo County, West Virginia, in the
penalty of $99,000, with corporate surety, conditioned as provided
by law, and that, as a condition of the payment of the award to him
in the amount of $26,000, the said Willie Lee Dotson, as Guardian
for Austin Ryan Dotson, an infant, execute a good and sufficient
bond before the said Clerk of the County Commission of Mingo
County, West Virginia, in the penalty of $26,000, with corporate
surety, conditioned as provided by law, and that certified copies
of the Letters of Administration and Guardian's Certificate showing
compliance with such conditions be filed with the Clerk of this