OPINION ISSUED JANUARY 19, 2001
PHILLIP FAULKNER AND DANIELA FAULKNER
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimants brought this action for vehicle damage sustained
when their vehicle struck a hole as claimant Phillip Faulkner was
traveling southbound on Route 2 towards Marshall University. Route
2 at this location is maintained by respondent in Cabell County.
The Court is of the opinion to deny this claim for the reasons more
fully set forth below.
The incident giving rise to this claim occurred in February
1999. In the early morning hours of a snowy February day, Mr.
Faulkner was traveling southbound on Route 2, for the first time.
He was proceeding towards Marshall University near the floodwall in
Cabell County in his 1992 Acura Vigor. At the location in
question, Route 2 is approximately thirty feet wide with two lanes.
It is a blacktop road with double yellow lines indicating the
center of the road. The speed limit at this location is
thirty-five miles per hour, but past the floodwall, the speed limit
is reduced to twenty-five miles per hour. As Mr. Faulkner was
driving the vehicle at a speed of about thirty-five to forty miles
per hour, he had a visibility of about ten to fifteen feet. There
was not much traffic present on the road. Suddenly, the vehicle's
right passenger side tires struck a hole in the pavement, bursting
the tires and breaking the rims. Afterwards, Mr. Faulkner
contacted respondent and informed it of the hole on Route 2. As a
result of the incident, claimant's vehicle sustained damage in the
amount of $1,689.34. While claimant had a deductible feature of
$500.00 in his motor vehicle insurance policy, his insurance
carrier would not pay for the after market rims which he purchased
for the vehicle.
The position of respondent is that it did not have notice of
the hole on Route 2 in Cabell County. Respondent asserts that
during the winter months, it uses cold mix asphalt to repair holes
in road surfaces. However, in this claim, it did not have any
information regarding a hole on the road surface of Route 2 where
the incident occurred.
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 this claim, the evidence established that respondent had at
least constructive notice of a hazardous condition on Route 2 and
was negligent in its maintenance of Route 2 in Cabell County.
Notwithstanding this finding of negligence on the part of
respondent, the Court is also of the opinion that claimant was
negligent in the operation of his vehicle. Mr. Faulkner was
operating his vehicle at a rate of speed too fast for the road
conditions then and there existing. In a comparative negligence
jurisdiction, such as West Virginia, the negligence of a claimant
can reduce or bar recovery of a claim. Based on the above, the
Court finds that the negligence of claimant was equal to or greater
than the negligence on the part of respondent. Consequently, the
negligence of claimant is a complete bar to recovery in this claim.
In accordance with the findings of fact and conclusions of law
stated herein above, the Court is of the opinion to and does deny