| Volume Number: 30
Category(s): STREETS AND HIGHWAYS |
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| Opinion Issued May 23, 2014 | |
| WAYNE C. ROSS | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-13-0033) | |
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Claimant appeared pro se. C. Brian Matko, Attorney at Law, for Respondent. |
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| PER CURIAM:
Claimant, Wayne Ross, brought this action to recover damages which occurred when his 1994 Ford Explorer struck numerous holes while traveling along Darnell Hollow Road near Morgantown, Monongalia County. Darnell Hollow 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 January 2, 2013, at approximately 4:00 p.m. Claimant testified that in the weeks leading up to the incident he borrowed the vehicle involved in this incident from a friend in order to make it down Darnell Hollow Road, to the bottom of the hill, and then catch a ride with his friend to work. Claimant stated that this arrangement had to be made because of the general deleterious condition of the road. Claimant stated that Darnell Hollow Road is so bad that he compares it to a “goat trail.” Claimant indicated that he had made repeated calls to Respondent over a two year period in order to have the condition of the roadway improved. Nevertheless, Respondent has performed no maintenance on the road. Darnell Hollow Road is a Homeowner Access Road Project (HARP) road. The HARP project brought many small, low priority roads (usually glorified driveways) into Respondent’s system. Claimant alleges that Respondent isn’t maintaining Darnell Hollow Road at all–despite its admittedly low priority. Claimant testified that on the date of the incident his vehicle “bottomed out” on a large rock protruding from the roadway. As a result, Claimant’s vehicle sustained damage to its 4X4 hub assembly and ball joints in the amount of $2,238.82. Claimant did not carry insurance on this vehicle on the date of the incident, because he did not actually own the vehicle. Respondent argues that given the low priority of this road and lack of funds for maintaining it that there is nothing that could be done about the condition of this road. 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 had, at the least, constructive notice of the condition of Darnell Hollow Road. The Court does not entertain the argument that lack of funds and low priority are valid defenses for failing to maintain the roads under Respondent’s system. Lack of funds has never been a defense in tort. However, the Court cannot recommend an award in this claim because Claimant, by his own admission, does not have standing. Claimant admitted to the Court that he did not own the vehicle on the date of the incident, and Claimant has not provided this Court with proof otherwise or an insurance declarations page. Based on the foregoing, 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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