| Volume Number: 30
Category(s): NOTICE |
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| Opinion Issued May 23, 2014 | |
| LOUISE A. BALL | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-12-0329) | |
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Claimant appeared pro se. C. Brian Matko, Attorney at Law, for Respondent. |
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| PER CURIAM:
Claimant, Louise Ball, brought this action to recover damages which occurred when her 2003 Ford Taurus struck debris while traveling along Goose Creek Road near Barboursville, Cabell County. Goose Creek Road is a public road maintained by Respondent. The Court is of the opinion to deny an award in this claim for reasons more fully stated below. The facts giving rise to this claim occurred on May 5, 2012, at approximately 12:45 p.m. Claimant testified that while she and her daughter after leaving their home on Goose Creek Road they entered a tunnel or underpass that allows the road to pass through a railroad track. Claimant stated that while in the tunnel, visibility was poor, and her vehicle struck a foreign object. Claimant testified that when her vehicle struck the object it felt as if her vehicle had been lifted off of the ground. Claimant and her daughter continued to travel until they reached the fueling station. While fueling her vehicle Claimant noticed liquid spilling from her vehicle. As a result of this incident, Claimant’s vehicle sustained damage to it’s fuel tank in the amount of $300.79. Claimant carried liability insurance only on the date of the incident. Respondent argues that it had neither actual nor constructive notice of the condition present on along Goose Creek Road on the date in question. Therefore, Respondent maintains that it cannot be held liable in this claim. 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)). A party’s precise knowledge or state of mind concerning a situation often cannot be determined by direct evidence, but must instead be shown indirectly by circumstantial evidence. In the instant case, the Court is of the opinion that Respondent did not have actual or constructive notice of the alleged object in the tunnel. Claimant stated that she has noticed debris in the tunnel on other occasions; however, no evidence was provided that proves Respondent’s knowledge of said debris. Therefore, the Court cannot recommend an award in this claim. It is the opinion of the Court of Claims that the Claimant’s claim should be, and is hereby, denied. Claim disallowed. |
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| Summary: |
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