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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 10, 2012
ANDREA KIRBY
VS.
DIVISION OF HIGHWAYS
(CC-11-0190)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant brought this action for vehicle damage which occurred when her 2007 Saturn Ion struck a hole on Earl Core Road, designated as W. Va. Route 7, near Sabraton, Monongalia County. W. Va. Route 7 is a 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 9:00 p.m. on March 15, 2011. W. Va. Route 7 is a two-lane, paved road with an approximate speed limit of forty to forty-five miles per hour. At the time of the incident, Claimant was driving to a business location before returning to her home in Fairmont. As she was traveling at approximately forty to forty-five miles per hour, her vehicle struck a hole on W. Va. Route 7. The hole was situated on the right portion of the roadway. The hole was located inside the white edge line. Although she normally drives into the opposite lane to avoid the holes, on the day in question, there was traffic traveling in the opposite direction. In addition, there is no shoulder on this portion of W. Va. Route 7. Claimant stated that she takes this route approximately once every two months and had noticed a different hole but she had not noticed the hole in question. Claimant notified the Division of Highways the following day of the hole in the roadway. Her right front and passenger tires ruptured due to the impact, sustaining $484.37 in damages. The amount of Claimant’s insurance deductible is $500.00.
      The position of Respondent is that it had two times previously made repairs to the hole. Respondent’s witness testified at hearing that its employees had placed “cold patch” in the hole on March 2, 2011, and March 16, 2011. Respondent maintains that by placing a patch on the roadway, they did not have actual or constructive notice of the condition of the roadway at the time of the incident.
      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, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. 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 which Claimant’s vehicle struck and that it presented a hazard to the traveling public. The size of the hole and its location on the travel portion of the road lead the Court to conclude that Respondent had notice of this hazardous condition. Thus, there is sufficient evidence of negligence to base an award. Notwithstanding the negligence of the Respondent, the Court is also of the opinion that the Claimant was negligent. In a comparative negligence jurisdiction such as West Virginia, the Claimant’s negligence may reduce or bar recovery in a claim. Based on the above, the Court finds that the Claimant’s negligence equals thirty-percent (30%) of her loss. Since the negligence of the Claimant is not greater than or equal to the negligence of the Respondent, Claimant may recover seventy-percent (70%) of the loss sustained.
      In accordance with the findings of fact and conclusions of law stated herein above, the
     Court is of the opinion to and does make an award to the Claimant in the amount of $339.06.
      Award of $339.06.
Summary:
     


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