West Virginia Legislative Claims Commission

Volume Number: 30
Opinion Issued July 3, 2013
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant, Mary C. Smith, brought this action to recover damages which occurred when her 2010 Nissan Xterra struck rocks along Harrell Road near Lookout, Fayette County. Harrell Road is a public road maintained by Respondent. The Court is of the opinion to grant an award in this claim for reasons more fully stated below.
      This claim arose from three separate incidents in which Claimant was traveling along Harrell Road (the only means of ingress and egress from her residence) when her tire suddenly became deflated. Upon further inspection, Claimant determined that the cause of her flat tire was the presence of large, sharp protruding limestone rock, also known as “crusher run,” along the roadway. Claimant maintains that the presence of this large stone is the cause of her damage and that smaller rocks should be used along the roadway. Claimant stated that in all years previous, Respondent used sandstone along the roadway and that her tires have never received punctures until Respondent introduced the large limestone. As a result of these separate incidents, Claimant was forced to replace her tires and incurred other costs which totaled $489.90. Claimant had collision insurance with a $500.00 deductible at the time of the incidents. Therefore, Claimant may recover the full amount of $474.00.
      Respondent’s witness, Danny Hypes, admitted that he was notified of the situation and that his inspection revealed that indeed sharp limestone rock was present along the roadway. Mr. Hypes further stated that the Respondent mandates the use of the heavier crusher run in order to preserve the integrity of the roadway. He testified that sandstone dissolves faster and is less cost-effective. Mr. Hypes stated also that the use of crusher run would be suitable if Respondent was able to secure a roller to pack the material after it is laid in place.
      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). Therefore, 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). “Actual notice” is based on direct evidence known by a person or entity while “constructive notice” is defined as "[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of . . .; notice presumed by law to have been acquired by a person and thus imputed to that person." Mace v. Ford Motor Co., 221 W. Va. 198, 653 S.E.2d 660 (2007) (citing Black’s Law Dictionary at 1090 (8th Ed. 2004)).
      In the instant case, the Court is of the opinion that Respondent had, at the least, constructive notice of risk posed by the use of large crusher run limestone. The Court notes that Danny Hypes, as administrator for Respondent in Fayette County, did everything that he could do given the tools that he had at his disposal. The Court is aware that there just simply are not enough rollers to go around. Nevertheless, given Mr. Hypes’s personal observations and admission that a roller should be used in these situations leads the Court to conclude that Respondent was negligent. Thus, Claimant may make a recovery for the damage to her vehicle.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $489.90.
      Award of $489.90.

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