OPINION ISSUED SEPTEMBER 8, 1999
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for damage sustained to her
vehicle as a result of an encounter with a large hole at the
junction of W. Va. Route 61 and County Route 79/3, a junction
maintained by respondent in Kanawha County. The Court is of the
opinion to make an award for the reasons more fully stated below.
At the junction of W. Va. Route 61 and County Route 79/3 there
is an underpass, which is approximately thirty to fifty feet in
length. Surprisingly, the underpass throughway is flat. County
Route 79/3 is about twenty-two feet wide, whereas W. Va. Route 61
is about twenty-four feet wide. The underpass is controlled by a
stoplight which restricts traffic flow to one direction at a time.
A motorist coming out of the underpass onto W. Va. Route 61 would
encounter a large hole located approximately fifty to seventy feet
after passing the underpass. The hole was four to six inches deep
and was wide enough to encompass the centers of both lanes on W.
Va. Route 61. Further, the hole did not become visible to the
motorist until after she passed through the underpass. Respondent
was aware of this defective condition and placed two steel plates,
measuring ten feet by fourteen feet by three inches thick, over the
hole. Moreover, respondent was aware that large trucks would often
push these steel plates under one another, exposing the hole.
One day in January of 1998 at about 12:00 p.m., claimant was
driving her 1991 Pontiac Grand Am from County Route 79/3, Cabin
Creek, to W. Va. Route 61. Traveling at a rate of speed about
twenty miles per hour in a thirty-five miles per hour zone,
claimant's vehicle hit a large hole, which was not covered by steel
plates. Previously, claimant had driven the same road. However,
on those previous occasions, metal plates covered the hole. The
damage that resulted from hitting the hole was that the 1991
Pontiac Grand Am was knocked out of alignment and there was damage
to the tires, which were new. Total damage to the vehicle as a
result of hitting the hole was in the sum of $145.15. Claimant's
insurance had a deductible feature of five hundred dollars.
There was a ten month lapse between the accident and notice of the
damage to her tires. Afterwards, claimant contacted the respondent
regarding the accident.
Respondent acknowledged that the hole on W. Va. Route 61 was
a very bad and ongoing problem. Specifically, there was a "base failure" which was exacerbated by the traffic flow of large trucks.
This defective condition on W. Va. Route 61 existed approximately
three hundred feet from respondent's garage. Cold mix asphalt was
used on a regular basis to fix the hole, since hot asphalt mix is
unavailable during the winter. The large trucks would knock off
steel plates and dig out the cold mix asphalt. Consequently, the
road was difficult to maintain during the winter. Further
evidenced was the fact that daily reports showed work on the road
on a regular basis. Eventually, the black top was removed to
secure the metal plates in the road during March of 1998. Future
work has been scheduled to give the road more stability.
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's employees inspected the junction of W. Va. Route 61
and County Route 79/3 on a regular basis. This inspection usually
resulted in repair work to the junction in question. Thus,
respondent had actual notice of the condition then and there
existing. The Court is of the opinion that respondent did not take
reasonable steps to ensure the safety of motorists traveling at the
junction of W. Va. 61 and County Route 79/3. 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 $145.15 to claimant for the damages to her vehicle.
Award of $145.15.
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA