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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 10, 2012
STEVEN HARDMAN
VS.
DIVISION OF HIGHWAYS
(CC-10-0638)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant brought this action for vehicle damage which occurred while he was driving his 2008 Chevrolet Cobalt. Claimant struck a series of large holes while traveling along Despard Road, designated as W. Va. Route 24/2 in Clarksburg, Harrison County. W. Va. Route 24/2 is a public road maintained by Respondent. The Court believes that Claimant should receive an award in this claim for reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 4:30 p.m. on February 26, 2010 as Claimant was returning home from work. W. Va. Route 24/2 is a two-lane road with painted white edge lines and a center line. Claimant testified that it had been snowing the day in question and the road was icy. The hole was located in the main travel portion of the road and the holes were not marked. Claimant testified that he knew about the holes and that the holes required him to steer into the opposite lane to miss hitting them. On the day in question, Claimant swerved into the opposite lane; however, he was forced to reenter his lane by oncoming traffic and slid into the holes. As a result, the Claimant’s vehicle sustained damage to two of his tires and rims in the amount of $557.39. Claimant’s vehicle had insurance which requires a $1,000.00 deduction; therefore, any award to Claimant 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 road.
      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 holes which Claimant’s vehicle struck, and that the holes presented a hazard to the traveling public. The size of the holes, their frequency, and the location on the travel portion of the road leads the Court to conclude that Respondent was negligent for eighty-five percent (85%) of the damages. The Court finds that the Claimant was also negligent for fifteen percent (15%) of the damage. Thus, Claimant may make a recovery for the damage to his vehicle reduced by the amount of his comparative negligence.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $473.78.
      Award of $473.78.
Summary:
     


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