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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 10, 2012
MICHAEL A. SMITH
VS.
DIVISION OF HIGHWAYS
(CC-11-0515)
     Claimant appeared pro se.
     Travis E. Ellison III, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant brought this action for vehicle damage, which occurred while he was driving his 2007 Dodge Ram 1500. Claimant’s vehicle struck a large hole while he was traveling along Old W. Va. Route 53, just off of W. Va. Route 100 approximately two-tenths of a mile past the railroad track near Maidsville, Monongalia County. Old W. Va. Route 53 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 6:35 a.m. on July 26, 2011. Old W. Va. Route 53 is a two-lane road with painted white edge lines and a center line. Claimant states that the weather was clear on the morning of the incident. The hole was located near the edge of the road. Claimant stated that he had to take evasive action to avoid coming into contact with a coal truck that was on his side of the road. Claimant’s vehicle then struck the hole along the side of the road. As a result, the Claimant’s vehicle sustained damage to one tire and two wheels in the amount of $1,046.12. Claimant carried liability insurance on the vehicle at the time of the incident.
      The position of the Respondent is that the cause of this accident was the oncoming coal truck which placed Claimant in the position of having to drive to the far right side of the his lane of travel where his vehicle encountered the hole. The Court disagrees that Claimant does not have a cause of action against the Respondent because the whole travel lane is necessary for use by the traveling public; therefore, the travel lane and the berm should be maintained properly by Respondent.
      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. This 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 $1,046.12.
      Award of $1,046.12.
Summary:
     


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