SENATE
HOUSE
JOINT
BILL STATUS
STATE LAW
REPORTS
EDUCATIONAL
CONTACT
home
home

West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): STREETS AND HIGHWAYS
Opinion Issued January 12, 2015
MITCHELL E. WOODRUM
VS.
DIVISION OF HIGHWAYS
(CC-13-0602)
     Claimant appeared pro se.
     Francis M. Curnutte III, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant, Mitchell Woodrum, brought this action to recover damages which occurred when his 2007 Scion TC struck a large concrete object while traveling along I-77 near Charleston, Kanawha County. I-77 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 November 9, 2013, at approximately 12:40 p.m. Claimant stated that while traveling northbound along I-77 in heavy traffic his vehicle struck a piece of concrete that had fallen from the median wall. Claimant stated that because of the heavy traffic, he could not swerve to miss the concrete. As a result of this incident, Claimant’s vehicle sustained damage to its tires, rims, and suspension in the amount of $1,065.46. Claimant carried a $1,000.00 collision insurance deductible on the date of the incident. Claimant argues that Respondent should have known about the condition of the median wall; therefore, they had a duty to correct the condition of the wall in order to prevent an 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 had, at least, constructive notice of the condition of the median wall on the date of the incident. Given the high average daily traffic in the area, the Respondent has a heightened duty to inspect median walls and prevent debris from entering the roadway. Therefore, the Court does recommend an award be made to the Legislature in the amount of Claimant’s deductible.
      Based on the foregoing, the Court is of the opinion to, and does hereby, grant an award in Claimant’s claim.
      Award $1,000.00.
     
Summary:
     


If your search was unsuccessful, please try the full volume in Archived Decisions


Decisions | Home
This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Email WebmasterWebmaster   |   © 2024 West Virginia Legislature **