OPINION ISSUED DECEMBER 6, 1999
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, 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
southbound on County Route 8, also known as Chapel Hill Road,
almost two miles from W.Va. Route 40, outside the town of
Triadelphia. County Route 8, is a road maintained by respondent in
Ohio County. The Court is of the opinion to deny this claim for
the reasons more fully stated below.
The incident giving rise to this claim occurred on Thursday,
February 4, 1999, at approximately 6:30 to 6:45 a.m. On the foggy
morning in question, claimant was proceeding to his place of
employment in his all-wheel drive 1988 Ford Tempo on a curve of
County Route 8. While the speed limit at this location is thirty
five miles per hour, claimant was traveling at a speed of twenty to
twenty-five miles per hour because of fog. Claimant frequently
travels southbound on County Route 8 and on the prior day did not
notice any irregularities in the pavement. As claimant made his
way around the winding road, he saw a hole in the road. Claimant
tried to maneuver his vehicle around the hole, but was unable to
avoid striking the hole. The left rear tire of claimant's vehicle
went into the hole as the vehicle went into the air and around
backwards in the road. The incident burst the tire and bent the
wheel. Afterwards, claimant contacted the Ohio County Sheriff's
Department. A member of the Ohio County Sheriff's Department
arrived at the scene approximately twenty five minutes later, but
no accident report was made. Claimant then drove the vehicle to
his residence. After returning home, claimant telephoned the Ohio
County Assistant Supervisor, Tom Sims, and informed him of the
The loss sustained by claimant was in the estimated amount of
$1,092.15. Claimant did not have collision damage insurance on his
car. Claimant did some repairs to the vehicle, but more extensive
work was needed. Three months prior to the September 17, 1999,
hearing, claimant used the vehicle as a trade-in. As a result of
the trade-in, claimant received $300.00 for the vehicle involved in
The position of the respondent was that it was not on notice
of the hole on County Route 8. According to respondent's daily
records, cold mix was used to repair the hole the same day notice
was given of claimant's incident. Respondent had no prior notice of 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. 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 adduced at the September
16, 1999, hearing indicated that respondent had no notice of the
condition on County Route 8, Ohio County. No evidence was
presented by claimant to establish that respondent did not take
reasonable steps to ensure the safety of motorists on County Route
8. Consequently, there is insufficient evidence of negligence upon
which to base an award.
In view of the foregoing, the Court hereby denies this claim.