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West Virginia Court of Claims

Volume Number: 30
Category(s): STREETS AND HIGHWAYS
Opinion Issued December 26, 2013
SHARON R. WHITE
VS.
DIVISION OF HIGHWAYS
(12-0475)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant, Sharon White, brought this action to recover damages which occurred when her 2007 Ford 500 was struck by debris along Interstate 64 near Hurricane, Putnam County. I-64 is a public road maintained by Respondent. The Court is of the opinion to grant an award in this claim for reasons more fully stated below.
      This facts giving rise to this claim occurred at approximately 11:00 a.m. on July 17, 2012. Claimant stated that while she and her fiancé were exiting the on-ramp onto I-64 they encountered an area of the roadway that had been milled in preparation for maintenance. Claimant testified that she was traveling between forty and fifty miles per hour, and that the weather conditions were good. Claimant’s vehicle was struck by a piece of the milled material. As a result of coming into contact with the milling debris, Claimant’s vehicle sustained damage to its windshield in the amount of $100.00. Claimant carried a $100.00 comprehensive insurance deductible; therefore, Claimant is entitled to the full amount of her damages.
      Respondent does not dispute that work was being performed in the area on the date of the incident; however, Respondent testified that West Virginia Paving is the responsible party. Respondent argues that Claimant should file a claim against West Virginia Paving for her damages. Respondent does admit, however, that it has a contract with West Virginia Paving that allows for Respondent to seek contribution and indemnity in situations such as this.
      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 of condition along I-64. Respondent and West Virginia Paving are jointly and severally liable for the condition of the roadway and should have coordinated in such a way as to provide notice to each other so that precautions were taken to avoid risk to the public. Thus, Claimant may make a recovery for the damage to her vehicle.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $100.00.
      Award of $100.00.
Summary:
     


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