|Volume Number: 29
Category(s): STREETS AND HIGHWAYS
|Opinion Issued January 17, 2013|
|JOSEPH RAY BURFORD|
|DIVISION OF HIGHWAYS|
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for Respondent.
| PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 1997 Chevrolet Camaro struck a hole while he was traveling along the intersection of Hannel Road and Doc Bailey Road near Charleston, Kanawha County. Hannel Road is not a road maintained by the Respondent. The Court is of the opinion to deny the claim for the reasons more fully stated below.
The incident giving rise to this claim occurred at 12:30 p.m. on February 20, 2012. The Claimant testified that while he was making a left turn onto Hannel Road off of Doc Bailey Road he encountered a large hole. The Claimant attempted to avoid the hole, but his vehicle could not avoid entering the hole. The Claimant testified that he was traveling the speed limit, but the hole was unavoidable. As a result, the Claimant’s vehicle sustained damage to the driver’s side underbody. The estimated cost of repair to the Claimant vehicle is $2,091.00. The Claimant admitted at hearing that the road was a private road.
The position of the Respondent is that it did not have actual or constructive notice of the condition of Hannel Road on the date of the incident. Also, the Respondent argues that it does not own the road in question, and therefore does not have a duty to maintain 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, 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 does not reach the issue of notice because the Claimant agrees that the Respondent does not have ownership of Hannel Road. This Court cannot make an award where the Respondent does not have a duty to maintain the road, which allegedly caused the Claimant’s damages. There may be other remedies available to the Claimant available through a municipality or private owner.
In view of the foregoing, the Court is of the opinion to and does deny this claim.