|Volume Number: 30
Category(s): STREETS AND HIGHWAYS
|Opinion Issued February 5, 2014|
|DIVISION OF HIGHWAYS|
Claimant appeared pro se.
C. Brian Matko, Attorney at Law, for Respondent.
| PER CURIAM:
Claimant, Sarah Snyder, brought this action to recover damages which occurred when her 1999 Ford Ranger struck a road sign along U.S. Route 119 near Ambler Ridge Hill, Roane County. U.S. Route 119 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 March 23, 2011, at approximately 4:30 p.m. Claimant testified that while proceeding along U.S. Route 119, toward Ambler Ridge Hill, her vehicle hit a “spot in the roadway” which caused her vehicle to sway. As Claimant’s vehicle swayed, it struck Respondent’s road sign and caused Claimant’s vehicle to leave the roadway and come to rest on its side. Claimant maintains that the Respondent’s road sign was broken and that it hung over the white edge line and into the travel lane. Claimant stated that road and weather conditions were clear and dry on the date of the incident, and Claimant stated that she was traveling at the recommended rate of speed.
As a result of this incident, Claimant vehicle sustained a total loss in the amount of $7,155.00. Claimant sustained other out of pocket expenses associated with work loss, tow bills, and loss of tools in the amount of $2,759.00. Claimant also claims reimbursement of medical expenses associated with personal injuries in the amount of $5,754.88. Claimant is seeking damages in the total amount of $15,678.88. Claimant carried liability insurance on her vehicle at the time of the incident.
Respondent’s witness, Kevin T. Quinlan, Respondent’s investigator, testified that he saw no evidence of a road indentation along the stretch of roadway in question which could have caused Claimant’s vehicle to sway and leave the roadway. Mr. Quinlan informed the Court that to test Claimant’s assertion, he drove his vehicle the entire stretch of U.S. 119 and at variable rates of speed, but stated that at no point did the vehicle react the way the Claimant alleges. Respondent further argues that it did not have actual or constructive notice of any condition which could have posed a risk to the traveling public.
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 broken sign and the general condition of U.S. Route 119. The personal observations of the Respondent’s witness along with the photographic evidence leads the Court to conclude that Respondent was negligent, at least in part. Thus, Claimant may make a recovery for the damage to her vehicle. Notwithstanding the negligence of Respondent, the Court is also of the opinion that Claimant was negligent since she was aware of the condition on the roadway and admittedly overcorrected her steering and failed to maintain control of her vehicle. In a comparative negligence jurisdiction such as West Virginia, a claimant’s negligence may reduce or bar recovery in a claim. Based on the above, the Court finds that the Claimant’s negligence equals twenty-percent (25%) of her loss. Since the negligence of the Claimant is not greater than or equal to the negligence of the Respondent, Claimant may recover seventy-five percent (75%) of the loss sustained.
It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $11,127.75.
Award of $11,127.75.