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West Virginia Court of Claims

Volume Number: 30
Category(s): FALLING ROCKS AND ROCKS
Opinion Issued September 13, 2013
KIMBERLY BOGGS AND STEVEN BOGGS
VS.
DIVISION OF HIGHWAYS
(11-0054)
     Claimants appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
     
      Claimants, Steven and Kimberly Boggs, brought this action to recover damages which occurred when their 2006 Chevrolet Equinox struck a rock while traveling along U.S. 119 near Logan, Logan County. U.S. 119 is a public road maintained by Respondent. The Court is of the opinion to deny this claim for reasons more fully stated below.
      The facts giving rise to this claim occurred on January 15, 2011, at approximately 6:30 p.m. Claimants testified that while traveling in the lefthand passing lane between Chapmanville and Logan on the date of the incident, their vehicle struck a series of large rocks lying in the travel portion of the roadway. Claimants stated that they could not avoid contact with the rocks. By all accounts the weather and road conditions on the date in question were good. As a result of the impact with the rocks, Claimants’ vehicle sustained a total loss in the amount of $13,371.30. Claimants carried a $500.00 collision insurance deductible amount on the date of the incident.
      Respondent argues that it did not have actual or constructive notice of the rock on or before the date of the incident. Claimants assert that Respondent is negligent because it should have known that a rock was lying in the roadway and posed a threat to the traveling public.
      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). “Actual notice” is based on direct evidence known by a person or entity while “constructive notice” is defined as "[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of . . .; notice presumed by law to have been acquired by a person and thus imputed to that person." Mace v. Ford Motor Co., 221 W. Va. 198, 653 S.E.2d 660 (2007) (citing Black’s Law Dictionary at 1090 (8th Ed. 2004)).
      In the instant case, the Court is of the opinion that Respondent did not have actual or constructive notice of a rock in the roadway. When the Respondent does not have adequate notice of a condition to allow for corrective action, there is no duty upon the Respondent to correct unknown defects.
      Based on the foregoing, the Court finds that Claimants’ claim should be, and is hereby, DENIED.
      Claim disallowed.
Summary:
     


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