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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, Stephanie and Joshua Lucas, brought this action to recover damages which occurred when their 2011 Chevrolet Suburban struck a road sign along Route 10 near Harts, Lincoln County. Route 10 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 June 8, 2012, during the afternoon hours. Claimants testified that while traveling towards Chapmanville on Route 10, they were being passed by a coal truck. As a result, Claimants stated that they attempted to move to the right side of the road in order to allow more room for the coal truck to pass. Claimants’ vehicle then struck a road sign that Claimants allege was hanging over the white edge line and onto the travel portion of the roadway. As a result of this incident, Claimants’ vehicle sustained damages to its mirror in the amount of 259.95. Claimants carried a $1,000.00 collision insurance deductible amount on the date of the incident; therefore, no limitation applies to Claimants’ award.
      Respondent did not refute Claimant’s allegations with regard to its negligence.
      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 use of large crusher run limestone. The volume of testimony, together with the Respondent’s lack of rebuttal evidence leads the Court to conclude that Respondent was negligent. Thus, Claimants may make a recovery for the damage to their vehicle.
      It is the opinion of the Court of Claims that the Claimants should be awarded the sum of $259.95.
      Award of $259.95.

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