West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued January 10, 2012
     Claimant appeared pro se.
     Travis E. Ellison III, Attorney at Law, for Respondent.
      Claimant brought this action for vehicle damage which occurred while he was driving his 2005 Chrysler Pacifica. Claimant’s vehicle struck a large hole measuring approximately six inches in depth while traveling along W. Va. Route 20 near Webster Springs, Webster County. W. Va. Route 20 is a public road maintained by Respondent. The Court believes that Claimant should receive an award in this claim for reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 11:30 a.m. on July 29, 2010. W. Va. Route 20 is a two-lane paved road with painted white edge lines and a center line. The hole was not located in the main travel portion of the road. The hole was located along the white edge line. Claimant stated that he saw the hole, but the hole was too close to avert impact. Furthermore, Claimant testified that he had driven this road many times a day for many years due to his work as a Webster County school bus driver. As a result, the Claimant’s vehicle sustained damage to its tires and wheels in the amount of $1,489.02. Claimant’s vehicle had insurance, which requires a $1,000.00 deduction; therefore, any award to Claimant is limited to the amount of the deduction.
      The position of the Respondent is that it did not have actual or constructive notice that the sign was not properly placed at a safe distance. Respondent’s witness, Vincent Cogar, maintains that his labor crews were in the area patching holes before the incident.
      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). 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).
      In the instant case, the Court is of the opinion that Respondent had, at the least, constructive notice of the hole in question. Respondent also should have known that it presented a hazard to the traveling public. The size of the hole and its location on the travel portion of the road leads the Court to conclude that Respondent was negligent. Thus, Claimant may make a recovery for the damage to his vehicle.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $1,000.00.
      Award of $1,000.00.

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