West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): BERMS
Opinion Issued January 29, 2014
     Claimants appeared pro se.
     C. Brian Matko, Attorney at Law, for Respondent.
      Claimants brought this action for vehicle damage which occurred when their 2007 Ford Explorer was damaged in an incident on Pleasant Hill Road in Morgantown, Monongalia County. Pleasant Hill Road (County Route 68/1) 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 3:45 p.m. on April 5, 2012, when claimant Matthew J. Youst was driving the vehicle on Pleasant Hill Road and he drove onto the berm. At that time, the vehicle dropped approximately thirteen (13) inches onto a culvert causing damages to the undercarriage. Pleasant Hill Road is a narrow, two-lane asphalt road with brush growing along the area of the berm and onto the road surface. At the time of the incident, claimants’ vehicle sustained damage to the right front A-arm in the amount of $648.38.
      Since claimants’ insurance declaration page indicates that their collision deductible is $500.00, claimants’ recovery is limited to that amount.
      The position of the respondent is that it did not have actual or constructive notice of the condition of Pleasant Hill Road at the time of the incident. Larry Weaver, respondent’s Highway Administrator for Monongalia County, testified that he had not received any complaints about the conditions on Pleasant Hill Road which is a State and local service road classified as a 3rd priority road. This road is patched during the summer months and the roads are maintained in order of priority. There has been truck traffic on this particular road for construction of townhouses and this traffic caused the road to deteriorate. Maintenance is scheduled based upon the CORE maintenance plan and must be scheduled by traffic engineering. At the time of this hearing, Pleasant Hill Road was not on the schedule for any major maintenance work.
      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).
      In the instant case, the Court is of the opinion that respondent had, at the least, constructive notice of the condition of Pleasant Hill Road and the condition of the berm. Since the this is a narrow road, the condition of the berm created a hazard to the traveling public, and the Court finds respondent negligent in its maintenance of the road on the date of the incident herein.
      In view of the foregoing, it is the opinion of the Court of Claims that the Claimants should be awarded the sum of $500.00.
      Award of $500.00.

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