OPINION ISSUED JUNE 8, 2000
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage which occurred
when his vehicle struck a hole when he was traveling in the right
eastbound lane of U.S. Route 50, near Romney. U.S. Route 50 at
this location is a road maintained by respondent in Hampshire
County. The Court is of the opinion to make an award in this claim
for the reasons more fully set forth below.
The incident giving rise to this claim occurred on March 30,
1998, at approximately 11:15 a.m. On the morning in question,
claimant was proceeding in the right eastbound lane of U.S. Route
50 in his 1985 F-250 Ford pick-up three-quarter ton truck at a
speed of about fifty miles per hour. At this location, U.S. Route
50 has three lanes each of which is twelve feet in width. Two of
the lanes are eastbound and these lanes proceed straight up a
mountainous slope. The posted speed limit is forty-five miles per
hour. As Mr. Saville drove his truck in the right lane up the
mountain, he came upon a six to seven inch hole about the width of
a truck tire, with which he was familiar. Since there was a vehicle
in the passing lane beside him, he was forced to drive into the
hole which was near the white edge line indicating the edge of the
paved surface of the road. The impact with the hole damaged the
truck's transfer case. The truck became inoperable and Mr. Saville
drifted his vehicle to the side of the road. Afterwards, Mr.
Saville went to a salvage yard and purchased a transfer case for
$450.00, which he later installed. Since claimant's truck is
insured under a liability motor vehicle insurance policy only, he
was responsible for the sustained loss.
The position of respondent was that it did not have notice of
the hole on U.S. Route 50 in Hampshire County. According to
Highway Administrator III, Olin Teter, respondent had not received
any information regarding an irregularity in the road surface until
December 23, 1998. While Mr. Teter produced photographs of the road
near the location in question that did not show the existence of
the hole, claimant's photographs established the existence of the
hole and that it had been patched. Respondent did not have any
record of the hole being patched.
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 adduced at the April 20,
2000, hearing established that respondent at least had
constructive notice of the condition of the right eastbound lane of
U.S. Route 50 in Hampshire County. The Court is of the opinion
that the position and size of the hole in the road surface
establishes that respondent should have known about the defect and
should have repaired it or placed warning signs prior to claimant's
incident. Consequently, there is sufficient evidence of negligence
upon which to base an award.
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 $450.00.