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West Virginia Court of Claims

Volume Number: 29
Category(s): BERMS
Opinion Issued January 10, 2012
DENNIS L. WARD AND TERRI WARD
VS.
DIVISION OF HIGHWAYS
(CC-10-0619)
     Claimants appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimants brought this action for vehicle damage which occurred while they were traveling in their 2002 Cadillac Deville. Claimants’ vehicle struck a deep hole when Claimant Dennis L. Ward was driving their vehicle on County Route 21 near Moundsville, Marshall County. County Route 21 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 at approximately 9:00 p.m. on March 15, 2010. County Route 21 is a narrow, two-lane, paved rural road with painted edge and center lines. Mr. Ward testified that the weather conditions on the day in question were dark and damp. As he approached an oncoming vehicle, he drove to the edge of the road to allow the other vehicle enough room to pass, and his vehicle struck a deep hole on the passenger side. As a result, the Claimants’ vehicle sustained damage to its tires and shocks in the amount of $1,144.70. Claimants had vehicle insurance which required a $250.00 deduction; therefore, any award to Claimants is limited to the amount of the deduction.
      The position of the Respondent is that it did not have actual or constructive notice of the condition of the roadway. Furthermore, Respondent’s witness, Rick Poe, testified that since the incident occurred near the end of winter, the only material available to fill the hole would have been cole patch–a less than adequate remedy for holes because it is only temporary.
      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 conditions along County Route 21. The frequency and severity of the holes along the roadway should have been obvious to Respondent. Thus, Claimants may make a recovery for the damage to their vehicle.
      It is the opinion of the Court of Claims that Claimants should be awarded the sum of $250.00.
      Award of $250.00.
Summary:
     


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