West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued January 19, 2012
     Claimant appeared pro se.
     Michael J. Folio, Attorney at Law, for Respondent.
      Claimant Roy J. McDaniel brought this action for vehicle damage which occurred when his 2001 Toyota Camry XLE struck a hole on Kanawha Turnpike in South Charleston, Kanawha County. Kanawha Turnpike is a public road maintained by Respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 7:10 a.m. on January 4, 2011. Kanawha Turnpike is a heavily traveled two-lane, paved road with one lane of traffic in each direction. At the time of the incident, Claimant was returning to his home after dropping his daughter off at school. Claimant testified that it was a dark, cold morning and that the road appeared to have a light frost on it. Claimant was driving straight on Kanawha Turnpike, near the Spring Hill Drive intersection, when the car in front of him swerved. Claimant testified that he tapped on the brakes, but was unable to prevent his vehicle from striking a long hole located in the travel portion of the roadway. As a result of this incident, Claimant’s vehicle sustained damage to the right front and rear wheels, tires, and struts. Based on the recommendation of his mechanic, Claimant replaced all four wheels, tires, and struts, and had his tires balanced and wheels realigned for a total of $1,947.91. Claimant’s vehicle had liability insurance only.
      It is Claimant’s position that Respondent knew or should have known about the hole on Kanawha Turnpike which created a hazardous condition to the traveling public and that Respondent was negligent in failing to properly maintain Kanawha Turnpike prior to the incident.
      The position of the Respondent is that it did not have actual or constructive notice of the condition on Kanawha Turnpike at the time of 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 condition on Kanawha Turnpike. Since a large hole in the travel portion of a heavily traversed road created a hazard to the traveling public, the Court finds Respondent negligent. However, Respondent may only be held liable for the actual damage caused by its negligence. Thus, Claimant may only recover the cost to repair or replace the right front and rear wheels, tires, and struts, in the amount of $1,069.61.
      In view of the foregoing, it is the opinion of the Court of Claims that the Claimant should be awarded the sum of $1,069.61.
      Award of $1,069.61.

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