OPINION ISSUED JUNE 8, 2000
MARK SCOTT KING
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage which occurred
as a result of his vehicle striking a hole while traveling
eastbound on U.S. Route 33, near the town of Mason. U.S. Route 33
at this location is a road maintained by respondent in Mason
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 January 16,
1999, at approximately 9:30 to 10:00 p.m. On the cold night in
question, claimant proceeded from the Parkersburg Mall toward his
residence in his 1997 Honda Accord Special Edition on U.S. Route 33
at a speed of about fifty-five miles per hour. This portion of U.S.
Route 33 is a twenty two feet, two lane road with double yellow
lines indicating the center of the road surface and white lines
along the edges of the road surface. As Mr. King drove along the
first priority road, he came upon an area of road where he knew
there was a two foot irregularity in the pavement, which he had
struck on a prior occasion. Mr. King noticed four to five vehicles
on the right hand side of the road with their hazard lights
flashing and then he slowed the speed of his vehicle to thirty-five
miles per hour. Confronted by oncoming traffic, Mr. King was
forced to strike the hole in the road surface. The impact burst
the vehicle's tire and bent the wheel rim. After the incident,
claimant telephoned the Mason County Fire Department regarding the
hole in the road surface. Claimant sustained a loss in the amount
of $228.28, for a tire and wheel rim. Since claimant has a
deductible feature of $1,000.00 in his motor vehicle insurance
policy, he was responsible for the entire loss.
The position of respondent was that it did not have notice of
the hole on U.S. Route 33 in Mason County. On the days prior to
the incident, respondent's employees were engaged in snow and ice
removal activities. During this time, respondent's employees had
no notice of the hole. While respondent acknowledged that this
portion of U.S. Route 33 is notorious for holes, its daily records
indicated that almost one ton of cold mix asphalt was used to
repair the hole on the same night it was given notice of claimant's
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).
The evidence adduced at the March 23, 2000, hearing
established that respondent had actual notice of the condition on
U.S. Route 33 in Mason County. Respondent was well aware that
winter weather conditions contribute to the failure of patching
material in this area and failed to take reasonable measures to
assure the safety of motorists on U.S. Route 33 in Mason County.
A Mason County 911 Center audio tape of the night in question,
adduced by claimant, established that U.S. Route 33 was in a state
of disrepair and as a result at least nine other vehicles sustained
damage. Notwithstanding the negligence of respondent, the Court is
also of the opinion that claimant was negligent in his operation of
the vehicle. Claimant was aware of the hole in question and had
struck it on a prior occasion. In a comparative negligence
jurisdiction, such as West Virginia, the negligence of a claimant
can reduce or bar recovery of a claim. Based on the above, the
Court finds that the negligence of claimant was responsible for
one-third of his loss. Since the negligence of claimant is not
greater than or equal to the negligence of respondent, claimant may
recover two-thirds of the loss 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
a reduced award in this claim.
Award of $152.03.