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West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): STREETS AND HIGHWAYS
Opinion Issued August 19, 2014
DANIELLE MARIE WORDEN
VS.
DIVISION OF HIGHWAYS
(CC-12-0402)
     Claimant appeared pro se.
     C. Brian Matko, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant, Danielle Marie Worden, brought this action to recover damages which occurred when her 1998 Volvo S70 struck a large concrete object while traveling along I-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 May 15, 2012, at approximately 7:30 p.m. Claimant stated that while traveling approximately 60 miles per hour she noticed something in the road. Claimant noticed a large object, which was later determined to be a piece of concrete used to attach an expansion joint, when she was approximately 50 feet from the object, which Claimant maintains was not enough time to maneuver around the object. Claimant testified that she attempted to straddle the concrete object. Nevertheless, Claimant’s vehicle did make contact with the object. Claimant stated that she heard a very loud crash and it felt like something had smashed into her undercarriage. Claimant stated that the force was so severe that one of her review mirrors was displaced, and several pieces of Claimant’s vehicle was dislodged. Claimant testified that road conditions on the date of the incident were clear and dry. 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 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 nor constructive notice of the foreign object on I-79 on the date in question. Our case law is clear that where the Division of Highways has no prior notice, liability cannot attach. Claimant did not provide evidence to the Court proving that Respondent knew, or should have known, about the dislodged concrete block on the roadway. Therefore, the Court cannot recommend an award in this claim.
      Based on the foregoing, the Court is of the opinion to, and does hereby, deny Claimant’s claim.
      Claim disallowed.
     
Summary:
     


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