West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued February 14, 2013
     Claimant appeared pro se.
     Travis E. Ellison III, Attorney at Law, for Respondent.
      Claimant, Dr. Evelyn L. Harris, brought this action for vehicle damage which occurred when her 2010 Volvo C30 struck an iron stake holder while traveling along Kanawha Boulevard in Charleston, Kanawha County. Kanawha Boulevard 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 9:30 p.m. on December 9, 2011. Claimant testified that while traveling home from a theatrical performance her vehicle struck iron holders embedded in the roadway at the intersection of Kanawha Boulevard and Greenbrier Street. Claimant further stated that these iron holders are common along Kanawha Boulevard; however, Claimant maintains that they are usually covered by a plastic cap so as to avoid damage to the traveling public. Claimant stated that due to the darkness and lack of reflective covering, she could not avoid contact with the holders. As a result of its contact with the holders, Claimant’s vehicle sustained damage to its tire and rim in the amount of $1,275.89. Claimant carried collision insurance at the time of the incident and was reimbursed the cost over and above the $1,000.00 deductible. Claimant now seeks the cost of her deductible. The position of Respondent is that it did not have actual or constructive notice of the exposed condition of the holders along Kanawha Boulevard on the date 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 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 holders which the Claimants’ vehicle struck and that the exposed condition presented a hazard to the traveling public. Given the numerous examples along Kanawha Boulevard of properly covered holders and the location’s proximity to the capitol, the Court finds that Respondent should have been aware of the condition. Thus, Claimant may make a recovery for the amount of her deductible.
      It is the opinion of the Court of Claims that Claimant should be awarded the sum of $1,000.00.
      Award of $1,000.00.

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