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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 10, 2012
DENZIL GRAHAM AND SHELLEY GRAHAM
VS.
DIVISION OF HIGHWAYS
(CC-10-0566)
     Claimants appeared pro se.
     Travis E. Ellison III, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimants brought this action for vehicle damage, which occurred while Shelley Graham was driving the couple’s 2003 Mitsubishi Outlander. Claimants’ vehicle struck a large hole while traveling along Coal Lick Road, also designated as County Route 22, near Albright, Preston County. County Route 22 is a public road maintained by Respondent. The Court believes that Claimants should receive an award in this claim for reasons more fully stated below.
      The incident giving rise to this claim occurred in the morning hours sometime in April 2010. County Route 22 is a narrow two-lane road, without a painted center line or edge lines. Claimants testified that the weather was cold and moist on the date of the incident; however, visibility was not a concern. The hole was located in the main travel portion of the road. Claimants testified that the road is in a general state of disrepair, and that she travels the road almost daily. The current deteriorated state of the road is due to a large increase in oil and gas production traffic in the area. Claimants stated that Respondent has failed to keep up with the current pace of deterioration caused by this increase in traffic. As a result of the impact with the hole, the Claimants’ vehicle sustained damage to a brake caliper, which led to the rapid deterioration of the brake pads. The Claimants’ vehicle also sustained damage to its struts. The damage to the vehicle totaled $619.59. Claimants’ vehicle was insured at the time of the incident. Claimants’ insurance required a $1,000.00 deduction; therefore, any award to Claimants is limited to that amount.
      The position of the Respondent is that it did not have actual or constructive notice of the hole in the road despite testimony from Respondent’s witness that it has been an ongoing problem for the maintenance crews to keep up with the pace of deterioration of the road due to the traffic increase. Respondent argues that there needs to be new legislation designed to resolve this issue, and that they are not an “enforcement” agency.
      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, Claimants 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 actual notice of the condition that caused damage to Claimants’ vehicle. There may indeed be a gap in the current permitting procedures for out of state oil and gas producers that causes a lack of cooperation between Respondent and producers; however, this is a question for the State agencies to resolve and not this Court. Thus, Claimants may make a recovery for the damage to their vehicle.
      It is the opinion of the Court of Claims that the Claimants should be awarded the sum of $619.59.
      Award of $619.59.
Summary:
     


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