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West Virginia Court of Claims

Volume Number: 30
Opinion Issued February 5, 2014
     Claimants appeared pro se.
     C. Brian Matko, Attorney at Law, for Respondent.
      Claimants, Harry and Joyce Fletcher, brought this action to recover damages which occurred when their 2007 Volkswagen Jetta struck a large hole along Route 82 near Birch River, Nicholas County. Route 82 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.
      The facts giving rise to this claim occurred on April 27, 2013, at approximately 3:30 p.m. Claimants testified that while traveling north along Route 82 near the Webster County line their vehicle came close to the edge of the roadway. Claimants stated that at that moment the vehicle struck a large hole where the roadway had broken off. Claimants were not speeding and the road conditions on the date of the incident were clear and dry. Claimants maintain that they did not have time to steer around the hole. As a result of this incident, Claimants’ vehicle sustained damage to it’s tires and rims in the amount of $1,066.69. Claimants carried a $500.00 collision insurance deductible amount on the date of the incident; therefore, they are limited to an award in that amount.
      Respondent’s witness, Mr. Jarrell, Highway Administrator in Nicholas County, testified that road breakage is a common occurrence along Route 82 because of the heavy timber trucks that frequently travel it. Respondent argued that it can do little to correct these holes because they were not designed to carry such weight.
      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 risk posed by the condition of the roadway. The volume of testimony along with photographic evidence leads the Court to conclude that Respondent was negligent based on these narrow facts. Thus, Claimants may make a recovery for the damage to her vehicle.
      It is the opinion of the Court of Claims that the Claimants should be awarded the sum of $500.00.
      Award of $500.00.

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