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West Virginia Court of Claims

Volume Number: 29
Category(s): BERMS
Opinion Issued October 26, 2011
EMANUEL FERGUSON
VS.
DIVISION OF HIGHWAYS
(CC-10-0105)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant brought this action for vehicle damage which occurred when his 2007 Ford 500 struck a hole on County Route 3, locally designated Walker Branch Road, in Huntington, Cabell County. County Route 3 is a public road maintained by Respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 8:15 p.m. on February 22, 2010. It was a dark and rainy evening. At the time of the incident, Claimant was driving home from watching his grandson play basketball. Claimant testified that there was traffic coming from the opposite direction when his vehicle struck a hole in his lane that was filled with water and impossible to see. As a result of this incident, Claimant’s vehicle sustained damage to right front and rear rims and tires in the amount of $1,360.85. Since Claimant’s insurance declaration sheet indicates that his collision deductible is $500.00, Claimant’s recovery is limited to that amount.
      It is Claimant’s position that Respondent knew or should have known about the hole in the roadway on County Route 3 which created a hazardous condition to the traveling public and that Respondent was negligent in failing to properly maintain County Route 3 prior to the incident.
      The position of the Respondent is that it did not have actual or constructive notice of the condition on County Route 3 at the time of the incident. Randolph Smith, Highway Administrator two for Respondent in Wayne County, testified he familiar with County Route 3, which he described as four mile long secondary road. Smith stated that during the winter months the primary responsibility of Respondent’s crews is to treat snow and ice, but only as weather permits, holes are repaired with cold patch, a temporary patching material.
      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 v. 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 amount of time to take corrective action. Pritt v. Dep’t of Highways, 16 Ct. Cl. 8 (1985); Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986).
      In the instant case, the Court is of the opinion that Respondent had, at the least, constructive notice of the hole in the roadway on County Route 3. Since holes in the main travel portion of the road created a hazard to the traveling public, the Court finds Respondent negligent.
      In view of the foregoing, it is the opinion of the Court of Claims that the Claimant should be awarded the sum of $500.00.
      Award of $500.00.
Summary:
     


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