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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 10, 2012
RICHARD ASHMORE
VS.
DIVISION OF HIGHWAYS
(CC-11-0364)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant brought this action for vehicle damage, which occurred while his wife was driving his 2008 Subaru Legacy. Claimant’s wife was driving his vehicle when it struck a large hole while she was traveling along Gregory Run Road, designated as County Route 9 near Wilsonburg, Harrison County. County Route 9 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 9:00 p.m. on March 16, 2011. County Route 9 is a two-lane road with a painted center line. Claimant’s wife testified that she was maintaining the speed limit. She also testified that she is aware of the holes and usually can swerve into the opposite lane to avoid them. However she stated that oncoming traffic prevented her from doing so on this occasion. The hole was located in the main travel portion of the road and was not marked to alert drivers. She further stated that she could not have avoided this particular hole. As a result, the Claimant’s vehicle sustained damage in the amount of $434.07. Claimant’s vehicle had insurance, which requires a $500.00 deductible; therefore, any award to Claimant is limited to the amount of the deductible.
      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 hole which Claimant’s vehicle struck, and that the hole presented a hazard to the traveling public. The size of the hole and its location on the travel portion of the road leads the Court to conclude that Respondent was negligent. Thus, Claimant may make a recovery for the damage to his vehicle.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $434.07.
      Award of $434.07.
Summary:
     


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