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West Virginia Court of Claims

Volume Number: 29
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 17, 2013
RICHARD GONZALEZ
VS.
DIVISION OF HIGHWAYS
(CC-10-0409)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant, Richard Gonzalez, brought this action for vehicle damage which occurred when his 2005 Buick Lacrosse struck a hole on WV Route 98 in Clarksburg, Harrison County. WV Route 98 is a public road maintained by Respondent. The Court is of the opinion to make an award in this claim for the reasons stated below.
      The incident giving rise to this claim occurred at approximately 7:30 p.m. on April 5, 2010. WV Route 98 is a two-lane, paved road with one lane of traffic in each direction. At the time of the incident, Claimant was driving westbound on WV Route 98 past the VA Medical Center across a highway bridge. Claimant testified that he was aware of a hole in the pavement on the driving portion of his lane on the far side of the bridge, approximately 6 inches deep, 2 feet wide, and 4 feet long. Gonzalez stated that it is possible to avoid striking the hole if there is no oncoming traffic by maneuvering left of the center line. However, according to the Claimant, the likelihood of encountering another vehicle at the location of the hole is approximately 85%. Gonzalez testified that he was driving over the bridge at approximately 25 miles per hour when he spotted oncoming traffic and attempted to slow down, but Claimant’s vehicle struck the hole. As a result of this incident, Claimant’s vehicle sustained damage to the front and rear right tires and rims in the amount of $2,006.42. Since Claimant’s insurance declaration sheet indicates that his collision deductible is $500.00, Claimant’s recovery is limited to that amount.
      It is Claimant’s position that Respondent knew or should have known about the hole on WV Route 98 which created a hazardous condition to the traveling public and that Respondent was negligent in failing to properly maintain WV Route 98 prior to the incident.
      The position of the Respondent is that it did not have actual or constructive notice of the condition on WV Route 98 at the time of the incident. David Cava, Highways Administrator for Respondent in Harrison County, testified that he is familiar with WV Route 98, which he described as a first priority road, and the location of Claimant’s incident. Respondent submitted into evidence a DOH-12 work record which indicates that on March 5, 2010, one month before the incident, Respondent patched holes on WV Route 98 with 8 tons of cold mix. Cava testified that cold mix is a temporary patching material that can last one day or all winter, and Respondent’s crews do not return to monitor roads after they have been patched. After looking at pictures of the hole submitted by Claimant, Cava testified that it appeared to contain remnants of cold mix.
      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 condition on WV Route 98. Since the size of the hole and its location in the driving portion of the lane created a hazard to the traveling public, the Court finds Respondent negligent. Although Claimant began braking prior to hitting the hole, since he was aware that there was an 85% chance of encountering oncoming traffic and striking the hole, the Court believes he could have further reduced his speed on this particular day. The Court finds that Claimant was ten percent (10%) negligent in the operation of his vehicle. Thus, Claimant’s recovery is limited to ninety-percent (90%) of his loss.
      In view of the foregoing, it is the opinion of the Court of Claims that the Claimant should be awarded the sum of $450.00.
      Award of $450.00.
Summary:
     


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