OPINION ISSUED JULY 19, 2000
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage sustained when
his vehicle struck a hole while he was traveling northbound on
Route 65, near Naugatuck in Mingo County. Route 65 at this
location is maintained by respondent. The Court is of the opinion
to make an award in this claim for the reasons more fully set forth
The incident giving rise to this claim occurred on March 18,
1999, at approximately 7:30 p.m. At dusk on the evening in
question, Mr. Copley was traveling northbound on Route 65 toward
Kermit in his 1989 Nissan Sentra at a speed of about forty to
forty-five miles per hour. At this location, Route 65 is eighteen
to twenty feet in width. It is a two-lane, asphalt road with
double yellow lines indicating the center of the road with white
lines on each edge of the pavement. Route 65 is described as being
a priority road subject to heavy coal truck traffic. As Mr. Copley
drove the on the wet road, he was confronted by three oncoming
trucks in an area where he was aware of a hole in the road surface.
Mr. Copley tried to maneuver his vehicle to the side of the road
when the vehicle's right front tire struck a hole one foot in width
by one foot in length in the road on the right side of his lane of
travel. The subsequent impact burst the tire, broke the wheel, and
damaged the CV joint. Afterwards, Mr. Copley contacted
respondent's office regarding the hole and it was patched sometime
thereafter. Since Mr. Copley's vehicle was insured only under a
liability policy, he was responsible for the damage in the amount
of $398.77.After a review of the evidence adduced by Mr. Copley
at the June 1, 2000, hearing, the Court has determined that the
amount of damages set forth should be reduced by $40.00 because
that amount was incurred as a return-core deposit for the CV joint
purchased by Mr. Copley.
The position of respondent is that it did not have notice of
the hole on Route 65 in Mingo County. According to respondent,
once it received notice of the hole it dispatched employees
immediately to repair the hole. Employees patched the hole and
then were involved in snow and ice removal activities in the area.
During this time of the year, snow and ice removal activities are
a top priority and road repair activities are conducted when the
time becomes available. Prior to March 18, 1999, respondent
asserts that it did not have notice of this 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 of the defect and a reasonable time
to take corrective action. Chapman vs. Dept. of Highways, 16 Ct.
Cl. 103 (1986).
In the claim, the evidence established that respondent had at
least constructive if not actual knowledge of the hole on Route 65
in Mingo County. The Court is of the opinion that the hole in the
road surface of Route 65 constituted a hazardous condition and that
respondent should have been more observant of problems on the road
since it is a priority road subject to heavy coal truck traffic.
Consequently, there is sufficient evidence of negligence on the
part of respondent by which claimant may recover his sustained
In accordance with the findings of fact and conclusions of law
stated herein above, the Court is of the opinion to and does make
an award in this claim.
Award of $398.77.