West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued January 10, 2012
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant brought this action for vehicle damage which occurred while she was driving her 2010 Subaru Impreza. Claimant struck a large hole while traveling along Custer Hollow Road near the entrance to the FBI Complex in Harrison County. Custer Hollow Road, designated by Respondent as County Route 24/27, 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 8:15 p.m. on April 21, 2011. Custer Hollow Road is a flat, two-lane road with painted lines. Claimant testified that she was driving between twenty-five and twenty-seven miles per hour when her vehicle struck a large hole in the road. The hole was located in the main travel portion of the road. Claimant stated that she did not see the hole until she came directly upon it and she could not swerve to avoid it due to oncoming traffic. As a result, the vehicle’s tires ruptured and her right front wheel bent. Damages to the vehicle totaled $876.37, which Claimant paid out-of-pocket rather than filing a claim with her insurer. Claimant’s insurance requires a $500.00 deductible; therefore, any award to the Claimant is limited to $500.00.
      The position of the Respondent is that it did not have actual or constructive notice of the condition on Custer Hollow Road at the time of the incident. Respondent presented a witness at hearing to testify as to the general description of the roadway in question and the FBI’s plans to secure its own funding for repairs resulting from increased construction traffic.
      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 which Claimant’s vehicle struck. It is immaterial whether the FBI was performing new construction on the premises and intended to secure its own funding for repairing the roadway. The conversation between the witness and the FBI Complex was sufficient to establish that Respondent had constructive notice of the conditions on Custer Hollow Road which posed a hazard to the traveling public.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $500.00.
      Award of $500.00.

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