| Volume Number: 30
Category(s): STREETS AND HIGHWAYS |
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| Opinion Issued July 30, 2013 | |
| CALEB BANKS | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-11-0005) | |
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Claimant appeared pro se. Andrew F. Tarr, Attorney at Law, for Respondent. |
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| PER CURIAM:
Claimant, Caleb Banks, brought this action to recover damages which occurred when his 2006 Lexus GS 300 struck a road defect along U.S. 119 near Williamson, Mingo County. U.S. 119 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. The incident giving rise to this claim occurred at approximately 7:15 p.m. on September 7, 2010. U.S. 119 is a four-lane road with a median. The weather on the date of the incident was dry, and visibility was clear. Claimant testified that while returning from work his vehicle struck an uneven patch of road in a construction zone being worked by Respondent. Claimant stated that he was traveling within the speed limit. As a result of the incident, Claimant’s vehicle sustained damage to its wheels and tires in the amount of $3,627.08. However, since Claimant’s insurance declaration sheet indicates collision insurance with a $500.00 deductible amount, Claimant’s recovery is limited to that amount. Respondent did not produce witnesses at the hearing on this matter; however, Respondent argues that it is not liable for the incident because Respondent did not have actual or constructive notice of the defect. 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 the road defect along the construction zone in question. Respondent should have been on notice given the nature of the construction project and given the average daily traffic count along U.S. 119. Therefore, the Court finds that Respondent was negligent in its maintenance of U.S. 119. It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $500.00, the amount of his insurance deductible. Award of $500.00. |
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| Summary: |
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