OPINION ISSUED AUGUST 24, 2000
DIVISION OF HIGHWAYS
Claimant's husband, Duane Murphy, appeared on her behalf.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage sustained when
her vehicle struck a hole while she and her husband were traveling
westbound on Route 101/1, locally known as 8th Avenue, between 1st
Street and 2nd Street in Huntington. Route 101/1 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
Claimant's husband appeared and testified as to the incident
giving rise to this claim which occurred on March 18, 1999, at
approximately 9:00 p.m. On the night in question, Ms. Murphy was
operating her vehicle with her husband as her passenger. They were
traveling westbound on Route 101/1 from their residence to the
local Wal-Mart in her 1988 Chevrolet Beretta. Ms. Murphy and her
husband frequently travel this portion of Route 101/1 which is a
narrow, two-lane, second priority road at the location of the
incident. Mr. Murphy testified that the respondent had patched
holes in the area in question, but the repairs did not last and the
area was in a state of disrepair. As Ms. Murphy was driving her
vehicle at a speed of about twenty-five to thirty miles per hour
and she was about half a block from the traffic light at First
Street, when her vehicle's right front passenger tire suddenly
struck a hole. Mr. Murphy described the hole as being about one
foot in diameter and six to eight inches deep. After the sudden
impact with the hole, Ms. Murphy maneuvered the vehicle to a safe
location where she and her husband inspected the vehicle. The
impact broke the aluminum rim and necessitated realignment of the
vehicle. Since Ms. Murphy's motor vehicle was insured only under
a liability policy, she was responsible for the sustained loss
estimated in the amount of $238.40. Eventually, Ms. Murphy sold
The position of respondent is that it did not have notice of
the hole on Route 101/1 in Cabell County. According to respondent,
Route 101/1 was taken into the State Road System on June 24, 1998.
Since that time, respondent had conducted temporary hole repair
activities with cold patch on four separate occasions prior to Ms.
Murphy's incident. Prior to March 18, 1999, respondent asserts
that it did not have notice of the hole in question.
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 present claim, the evidence establishes that respondent
had at least constructive notice of a hazardous condition on Route
101/1, and further, that it was negligent in its maintenance of
Route 101/1. When respondent took Route 101/1 into the State Road
System, it had sufficient time in which to inspect and make more
permanent repairs to the road. Notwithstanding this finding of
negligence on the part of respondent, the Court is also of the
opinion that claimant also was culpable in the operation of her
vehicle. She was in an area well known to her and she should have
been aware of the hole in the road surface. Claimant should have
been driving in a manner that took into consideration the then and
there existing road conditions. In a comparative negligence
jurisdiction such as West Virginia the negligence of a claimant can
reduce or bar recovery in a claim. Based on the above, the Court
finds that the negligence of claimant was equal to or greater than
that 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