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West Virginia Court of Claims

Volume Number: 30
Opinion Issued February 5, 2014
     Claimant appeared pro se.
     C. Brian Matko, Attorney at Law, for Respondent.
      Claimant, Angela Jones, brought this action to recover damages which occurred when her 2009 Chevrolet Cobalt struck a large hole along Route 61 near East Bank, Kanawha County. Route 61 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 February 16, 2013, at approximately 9:50 p.m. Claimant testified that while traveling home along Route 61 he encountered a rock in the travel portion of the roadway. Claimant stated that he successfully swerved to avert striking the rock, but as he swerved he struck a large hole in the roadway. Claimant stated that the driving conditions were dark but clear and dry. As a result of this incident, Claimant’s vehicle sustained damage to its oil and transmission pans and motor in the amount of $1,143.91. Claimant carried a $1,000.00 collision insurance deductible amount on the date of the incident; therefore, Claimant is limited to an award int hat amount.
      Respondent argues that in this case it had neither actual nor constructive notice of a large hole on this stretch of Route 61. Therefore, Respondent maintains that it cannot be held liable absent some proof of notice.
      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 rocks along 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, 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 $1,000.00.
      Award of $1,000.00.

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