OPINION ISSUED DECEMBER 20, 2000
AUSTIN T. GETZ AND IRENE M. GETZ
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 when they were traveling
northbound on U.S. Route 250 between Philippi and Belington. At
this location, U.S. Route 250 is maintained by respondent in
Barbour 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 June 9,
1999, at approximately 7:00 p.m. Claimants were traveling
northbound on U.S. Route 250, near the southeastern corner of the
Barbour County fairgrounds, in their 1999 Buick Park Avenue at a
speed of about fifty to fifty-five miles per hour. They were
proceeding to their residence from the Elkins Hospital. Claimants
travel this portion of road about once a month. They had traveled
on the same stretch of road earlier in the day. Vehicle traffic
was present in both directions on the road. At this location, U.S.
Route 250 is a priority two lane road with double yellow lines
indicating the center of the road surface and white lines
indicating the edges of the pavement. The road is twenty-two feet
wide. As Mr. Getz drove the vehicle in a turn in the road, he was
confronted suddenly by a hole in the road surface. The hole was
about fifteen inches into the travel portion of the road from the
white line on the edge of the pavement. Mr. Getz testified that
when he saw the hole, he did not have time to maneuver the vehicle
around the hole and the passenger side of the vehicle struck the
hole. Ms. Getz testified that after the incident, she walked back
to the hole, placed her foot into the hole and observed the hole's
depth up to her ankle. The impact burst the front passenger side
tire, bent the passenger side rims, burst the hydraulic brake hose
and necessitated alignment of the vehicle. The sustained damage
exceeded the deductible feature in the amount of $1,000.00 in
claimants' motor vehicle insurance policy. In accordance with the
Court's decision in Summerville, et al. vs. Division of Highways,
any recovery would be limited to the amount of their deductible
feature. See Id., 18 Ct. Cl. 110 (1991).
The position of respondent is that it did not have notice of
the hole on U.S. Route 250 in Barbour County. According to
Transportation Crew Supervisor II, George Michael Erwin, he
inspected the scene a few days after the incident, but he was
unable to locate the hole in question. Mr. Erwin testified that he was aware that heavy truck traffic caused problems along the berm
of the road. These problems are patched and repaired continually.
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, a 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 if not actual knowledge of the hole on Route 250
in Barbour County. The Court is of the opinion that the condition
of Route 250 constituted a hazardous condition and that respondent
should have been more observant of problems on the road since this
is a priority road subject to heavy truck traffic. Consequently,
there is evidence of negligence on the part of respondent by which
claimants may recover their loss.
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 $1,000.00.