| Volume Number: 30
Category(s): STREETS AND HIGHWAYS |
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| Opinion Issued December 18, 2014 | |
| THOMAS RISKO | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-14-1178) | |
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Claimant appeared pro se. C. Brian Matko, Attorney at Law, for Respondent. |
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| PER CURIAM:
Claimant, Thomas Risko, brought this action to recover damages which occurred when his 2003 Chevrolet Impala struck loose gravel and debris after entering a construction zone along U.S. Route 119 near Danville, Boone 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 June 27, 2014, at approximately 8:00 a.m. Claimant stated that while traveling southbound along U.S. Route 119 he encountered a section of roadway that was undergoing construction. Claimant admitted that he is very familiar with the section of road under construction as he drives it almost daily. However, Claimant testified that on the date in question, both southbound lanes were being milled, and no sign was present to warn motorists. As a result, Claimant’s vehicle was struck with loose material, which caused Claimant’s vehicle to sustain damages to its windshield in the amount of $258.29. Claimant argues that Respondent is negligent because both lanes were being milled and Respondent had a duty in those circumstances to warn the public. 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 U.S. Route 119 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 had notice of the condition present along U.S. Route 119 on the date in question. As this Court has seen in other cases, milling creates a lot of loose debris and gravel. Without warning to motorists, who will not reduce their speed absent some warning, damage at some point is imminent. Therefore, the Court recommends an award to the Legislature in this claim. Based on the foregoing, the Court is of the opinion to, and does hereby, grant an award in Claimant’s claim. Award $258.29. |
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| Summary: |
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