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West Virginia Court of Claims

Volume Number: 29
Opinion Issued January 17, 2013
     Claimant appeared pro se.
     Michael J. Folio, Attorney at Law, for Respondent.
      The Claimant, Patricia Hart Adams, brought this action for vehicle damage which occurred when her 2007 Cadillac CTS struck a tailgate while the Claimant was driving along I-64 near Huntington, Cabell County. I-64 is a public highway maintained by the Respondent agency. 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 9:15 a.m. on September 10, 2010. The Claimant was traveling at a rate of sixty miles per hour in the right lane. While attempting to pass a vehicle the Claimant proceeded into the left-hand passing lane where her vehicle struck a tailgate that had become dislodged from another unknown vehicle. As a result, the Claimant’s vehicle sustained damage to its tire and rim in the amount of $1,256.98. Claimant’s insurance at the time of the incident provided for a $1,000.00 deductible; therefore, any award in this claim would be limited to the amount of the deduction.
      The position of the Respondent is that it did not have actual or constructive notice of the foreign object lying in the travel portion of I-64. The Respondent agency did not present testimony of a witness at hearing.
      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 notice of the tailgate. In cases where foreign objects lying in the roadway cause damage to a claimant’s vehicle the State must have prior actual or constructive notice of the foreign object (defect) and a reasonable amount of time to take corrective action before liability is imposed upon the State. Therefore, the Claimant’s claim must be, and is hereby, denied.
      Claim disallowed.

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