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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 10, 2012
JAMES A. MAYS AND BONNIE J. FRIEND
VS.
DIVISION OF HIGHWAYS
(CC-11-0388)
     Claimants appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimants brought this action for vehicle damage, which occurred while claimant James A. Mays was driving his 2007 Chevrolet Silverado pickup truck. Claimant struck a large hole while traveling along County Route 11 near Mannington, Marion County. County Route 11 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 4:30 p.m. on May 23, 2011. County Route 11 is a two-lane road with painted white edge lines and a center line. Claimant testified that it had been raining on the day in question, and water had accumulated along the roadway, which caused him to hit the hole. The hole was located in the main travel portion of the road and was not painted orange to alert drivers. Claimant stated that he did not see the hole before the vehicle struck it. As a result, the Claimant’s vehicle sustained damage to one of his tires in the amount of $238.50.
      The position of the Respondent is that it had already placed “cold patch” along County Route 11 and did not have actual or constructive notice of the hole Claimant struck.
      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 Claimants’ vehicle struck, and that 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, 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 $238.50.
      Award of $238.50.
Summary:
     


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