| Volume Number: 30
Category(s): NOTICE |
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| Opinion Issued May 23, 2014 | |
| REBA FAYE LUCAS | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-13-0190) | |
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Claimant appeared pro se. C. Brian Matko, Attorney at Law, for Respondent. |
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| PER CURIAM:
Claimant, Reba Lucas, brought this action to recover damages which occurred when her 2010 Subaru Forester was struck by a tire tread while traveling along Interstate 79 near Flatwoods, Braxton County. I-79 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 June 13, 2012, at approximately 11:30 a.m. Claimant testified that while traveling south along I-79, a vehicle began to pass her on her left. Claimant stated that the passing vehicle then struck a piece of tire tread and that said tire tread struck Claimant’s vehicle. Claimant testified that road conditions on the date of the incident were clear and dry. Claimant stated that she could not see the tire tread in enough time to avoid making contact with it. Claimant presented photographic evidence showing that the tire tread caused damage to her vehicle’s bumper and rear right fender in the amount of $1,601.96. Claimant carried a $1,000.00 collision insurance deductible amount on the date of the incident. Respondent argues that it had neither actual nor constructive notice of the condition present on along I-79 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 tire tread debris along I-79. Claimant presented no evidence proving that Respondent was informed prior to the incident. Pursuant to well-established case law, the Court cannot recommend an award in this claim. Based on the foregoing, it is the opinion of the Court of Claims that the Claimants claim should be, and is hereby, denied. Claim disallowed. |
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| Summary: |
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