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West Virginia Court of Claims

Volume Number: 29
Opinion Issued January 17, 2013
     Claimants appeared pro se.
     Andrew F. Tarr, Attorney at Law, for the Respondent.
      The Claimants, Estel and Lynna Middleton, brought this action for vehicle damage which occurred when their 2010 Hyundai Sonata struck a tire as they were traveling near the I-64 and I-77 interchange in Charleston, Kanawha County. I-64 and I-77 are public roads maintained by the Respondent. The Court is of the opinion to deny this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 8:40 p.m. on May 3, 2012. The speed limit on the intestate is sixty-five miles per hour. The Claimants were traveling at a rate of speed equal to the posted speed limit. Mr. Middleton testified that while attempting to pass a vehicle he was forced to attempt to straddle a foreign object in the roadway that was later determined to be a tire. The Claimants maintain that there was not enough time to avoid hitting the tire and that attempting to straddle the tire was the only reasonable course of action. The Claimants’ vehicle did not have enough clearance. The tire damaged a carbon dioxide sensor which was valued at $424.74. The Claimants contacted the Respondent after the incident occurred in order to have the tire removed. The position of the Respondent is that it did not have actual or constructive notice of the tire (foreign object) in the roadway.
      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 the Respondent liable for road defects of this type, the Claimant must prove that the 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 the Respondent did not have actual or constructive notice of the tire. In fact, the Claimants admitted at hearing that they contacted the Respondent only after they came into contact with it. This Court is constrained to follow its previous decisions strictly requiring notice, actual or constructive, to the Division of Highways.
      Based on the foregoing, the Court is of the opinion to, and does hereby, deny the Claimants’ claim.
      Claim disallowed.

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