West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued January 10, 2012
     Claimants appeared pro se.
     Travis E. Ellison III, Attorney at Law, for Respondent.
      Claimants brought this action for vehicle damage which occurred while their daughter was driving their 2002 Ford Escort. Claimants’ vehicle struck a massive hole while traveling east along Interstate 70 near Triadelphia, Ohio County. Interstate 70 is a public road maintained by Respondent. The Court believes that Claimants should receive an award in this claim for reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 4:30 p.m. on April 22, 2011. Interstate 70 is a four-lane road with painted white edge lines and a grass median that evenly splits the four lanes. The speed limit along Interstate 70in the area of the incident at that time was 55 miles per hour. While driving to her first day of work Claimants’ daughter entered the right lane and struck a massive hole. When the vehicle struck the hole in the paved portion of the road, Claimants’ daughter testified that she lost control of the vehicle which then left the interstate and came to rest against a rock. Claimants’ daughter testified that she saw the hole before striking it; however, she was unable to safely maneuver around it. Claimants’ daughter stated that she drives this road frequently; however, to her knowledge this hole was not present on any of those previous trips. Claimant, Kit Ratcliffe, came to the scene shortly after the accident and he testified that it had been lightly raining on the day in question; however, no water had accumulated along the roadway. He also observed the large hole in the pavement and the location of the vehicle off the interstate and against the rock. As a result, the Claimants’ vehicle sustained a total loss with damages totaling $4,813.00. Claimants carried only liability insurance on the vehicle.
      The position of the Respondent is that it did not have actual or constructive notice of the hole in question at the time of this incident. Respondent did acknowledge that its employees were aware of the defective condition and attempted to maintain it with cold patch material, a temporary patching material which comes out of large holes quite easily with heavy traffic and rainy weather. In fact, employees came to the scene of this accident shortly after Claimants’ daughter encountered this hazardous condition to fill the hole with cold patch.
      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 large hole and that the condition of the road presented a hazard to the traveling public. The fact that this was a very large and deep hole on a heavily traveled interstate places Respondent in the position of having to be constantly aware of the danger posed to the traveling public. The Court is of the further opinion that there was not adequate notice to the travelers on I-70 at this location to warn travelers of this hazardous condition.
      The size of the depression and its location on the travel portion of the road leads the Court to conclude that Respondent was negligent. Thus, Claimants may make a recovery for the damage to their vehicle.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $4,813.00.
      Award of $4,813.00.

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