West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued February 14, 2013
     Claimant appeared pro se.
     Michael J. Folio, Attorney at Law, for Respondent.
      Claimant brought this action for vehicle damage which occurred when his 1997 Ford Mustang struck a sunken portion of blacktop while traveling along Lower Mud River Road near Milton, Cabell County. Lower Mud River Road 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 8:00 p.m. on December 6, 2010. The speed limit on Lower Mud River Road is thirty-five (35) miles per hour. Claimant was traveling west on Lower Mud River Road at between thirty-five (35) and forty (40) miles per hour when his vehicle struck a sunken portion of the roadway that spanned a small bridge. Claimant testified that the weather had been cold and icy and it was dark. Claimant also stated that there is a “rough road” sign before the sunken portion of the roadway, but Claimant asserts that he did not have enough time to prepare for the impact. As a result, Claimant’s vehicle sustained damage to the oil pan and engine in the amount of $1,700.00. Claimant carried liability insurance only on the vehicle. Respondent’s position is that it did not have actual or constructive notice of the condition along the roadway, but if it had, there was a sign in place to warn drivers that there was rough road ahead.
      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 the Respondent liable for road defects of this type, the Claimant must prove that the 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 sunken roadway that Claimant’s vehicle struck and that the condition of the roadway presented a hazard to the traveling public. Given the size of the depression and its location along a bridge span, there was no other means for the traveling public to avoid the condition. The Court finds that the sign was an inadequate warning of road conditions along the bridge. Thus, Claimant may make a recovery for the damage to his vehicle.
      It is the opinion of the Court of Claims that Claimant should be awarded the sum of $1,700.00.
      Award of $1,700.00.

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