OPINION ISSUED JUNE 8, 2000
MICHAEL L. SMITH
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for damages to his vehicle which
occurred when his daughter was driving his vehicle and it struck a
hole on Route 622, locally known as Goff Mountain Road, near Cross
Lanes. Route 622 is a road maintained by respondent in Kanawha
County. The Court is of the opinion to deny this claim for the
reasons more fully set forth below.
The incident giving rise to this claim occurred on January 8,
1999, at approximately 3:00p.m. On the cloudy day in question,
claimant's daughter, Jessica Michelle Smith, drove his 1998 Z-28
Chevrolet Camaro from Institute toward Cross Lanes on Route 622.
She was proceeding at a speed of about twenty-five to thirty miles
per hour. Route 622 is a two-lane, high priority road about
twenty-two feet wide with a double yellow line indicating the
center of the road surface and white edge lines. Ms. Smith was
driving the vehicle on an uphill slope, and she had traffic in
front of and behind the vehicle. Suddenly, oncoming traffic forced
Ms. Smith to maneuver the vehicle toward the edge of the paved road
surface, where she noticed an irregularity in the pavement. Ms.
Smith slowed the speed of the vehicle, but she was unable to
prevent the vehicle from striking the irregularity in the pavement.
The incident caused damage to the vehicle's passenger side rear
tire. Since claimant had a deductible feature of $500.00 in his
motor vehicle insurance policy, he was responsible for the loss
estimated by Ms. Smith to be around $250.00.
The position of respondent was that it did not have notice of
an irregularity in the pavement of Route 622 in Kanawha County on
the date of this incident. A review of respondent's records
substantiated its position. In addition, Highway Administrator
Charles Earl Smith testified that he traveled the road about one
year after Ms. Smith's incident and he did not observe any
irregularity in the pavement or evidence of patching on the road in
the area described as the accident scene.
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 May 4, 2000,
hearing failed to establish that respondent had notice of a
defective condition on Route 622 or that it failed to assure the
safety of motorists on Route 622 in Kanawha County. While the
Court is of the opinion that Ms. Smith was involved in an incident,
that fact alone is insufficient to establish negligence on the part
of respondent. Consequently, there is insufficient evidence of
negligence upon which to base an award.
In accordance with the finding of facts and conclusions of law
stated herein above, the Court is of the opinion to and does deny