West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): NOTICE
Opinion Issued November 26, 2013
     Claimants appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimants brought this action for vehicle damage which occurred when their 2008 Mercury Grand Marquis struck a hole while traveling along W. Va. Route 17 near Madison, Boone County. W. Va. Route 17 is a public road maintained by Respondent. The Court is of the opinion to deny this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 6:00 p.m. on May 3, 2012. Claimant stated that he was traveling at a location along W. Va. Route 17 immediately preceding the entrance to an apartment complex between the town of Madison and Sparrow’s Creek. The weather on the date of the incident was clear and dry. Claimant stated that he struck a large hole just before the apartment complex. However, Claimant could not give a precise location where the incident occurred, and Claimant did not submit photographic evidence to support his allegations. Clamant did carry collision insurance on his automobile with a $500.00 deductible amount.
      It is the Claimants’ position that Respondent knew or should have known about the hole situated along W. Va. Route 17 created a hazardous condition to the traveling public and that Respondent was negligent in failing to properly maintain W. Va. Route 17 prior to the incident.
      The position of the Respondent is that it did not have actual or constructive notice of the condition on W. Va. Route 17 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). The Court has previously held Respondent liable where the driver of the vehicle was forced to use the berm in an emergency situation, and the berm was in disrepair. See Handley v. Div. of Highways, CC-08-0069 ( 2008); Warfield v. Div. of Highways, CC-08-0105 ( 2008).
      In the instant case, Claimant did not meet its burden of proof. Claimants failed to establish that in fact there was a hole on the date of the incident and that his vehicle made contact with the alleged hole. Respondent could not offer evidence to refute a condition that may or may not have been present.
      In view of the foregoing, the Court is of the opinion to, and does hereby, DENY this claim.
      Claim disallowed.

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