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West Virginia Court of Claims

Volume Number: 30
Category(s): STREETS AND HIGHWAYS
Opinion Issued September 13, 2013
BRENDA BRAGG
VS.
DIVISION OF HIGHWAYS
(12-0414)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
     
      Claimant, Brenda Bragg, brought this action to recover damages which occurred when her 2002 Chevrolet Trailblazer struck a couch while traveling through a tunnel near Dingess, Mingo County. The roadway is officially designated as Route 3/5 and is a public road maintained by Respondent. The Court is of the opinion to grant this claim for reasons more fully stated below.
      The circumstances surrounding this claim occurred on July 10, 2012, at approximately 7:00 a.m. The Claimant testified that while traversing the Dingess Tunnel her vehicle struck a foreign object. Upon inspection, the Claimant determined that the object that her vehicle struck was an abandoned couch. The Claimant stated that there is no lighting in the tunnel; therefore, she claims that she was unaware of an obstruction before entering the tunnel. As a result of this incident, Claimant’s vehicle sustained damage to its side door panels as well its front fender in the amount of $3,756.36. Claimant carried liability insurance only at the time of the incident.
      Respondent’s witness, Ray Messer Jr., Highway Administrator II for Mingo County, testified that the tunnel is known to attract pranksters and the tunnel does not have lighting. Claimant asserts that Respondent is responsible for her vehicle’s damage because the tunnel should be illuminated.
      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). Therefore, 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 had, at the least, constructive notice that the traveling public experienced an inordinate risk while traveling through the tunnel given the absence of lighting and the fact that pranks were common in the area. Therefore, the Respondent was negligent in its maintenance of the roadway and Claimant deserves to recover the full amount of her damages since there was no collision insurance in place at the time of the incident.
      Based on the foregoing, it is the opinion of the Court that the Claimant be awarded the sum of $3,756.36.
      Award of $3,756.36.
Summary:
     


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