|Volume Number: 29
Category(s): STREETS AND HIGHWAYS
|Opinion Issued January 17, 2013|
|DRENA J. GRAVES|
|DIVISION OF HIGHWAYS|
Claimant appeared pro se.
Travis Ellison III, Attorney at Law, for respondent.
| PER CURIAM:
Claimant brought this action for vehicle damage which occurred when her 2009 Dodge Dakota struck an unknown metal object as she was driving on an unidentified road at the intersection of W. Va. Route 39 in Gauley Bridge, Fayette County. It was determined that the road is maintained by Respondent. The Court is of the opinion to deny this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred at approximately 3:00 p.m. on July 13, 2011. The speed limit on the road in question is twenty-five miles per hour. At the time of the incident, Claimant testified that she had just turned off of W. Va. Route 39 and was heading up the unidentified road. As she continued up the hill she met an oncoming vehicle which she alleges caused her to veer off of the road and onto a metal object. As a result of this incident, Claimant’s vehicle sustained damage to its tire in the amount of $217.92.
The position of Respondent is that it did not have actual or constructive notice of the condition along the road. Danny Hypes, Fayette County Administrator for Respondent, testified that he is familiar with the area where Claimant’s incident occurred. Mr. Hypes testified that he was not aware of any problems on this portion of the road on or before July 13, 2011. Respondent did not receive any complaints regarding metal objects or other hazards at this location.
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 is of the opinion that Respondent did not have notice of the object which Claimant’s vehicle struck. It is the Claimant’s burden to prove that Respondent had notice of the object in the roadway and that they failed to take corrective action. The Court cannot resort to speculation in determining what caused the damage to the Claimant’s vehicle. In any case, it is more likely than not that the Claimant’s vehicle struck a foreign object in the roadway for which Respondent did not have notice. Therefore, there is insufficient evidence of negligence on the part of Respondent upon which to base an award.
In view of the foregoing, the Court is of the opinion to and does deny this claim.