West Virginia Legislative Claims Commission

Volume Number: 30
Opinion Issued February 5, 2014
     Claimant appeared pro se.
     C. Brian Matko, Attorney at Law, for Respondent.
      Claimant, Arnold Cottrell Jr., brought this action to recover damages which occurred when his 1987 Toyota Supra struck a series of holes along Clayton Street near Rivesville, Marion County. Clayton Street 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 facts giving rise to this claim occurred on April 6, 2013, at approximately 9:30 a.m. Claimant testified that while traveling to work from a friend’s home during the early morning hours he encountered a stretch of road that is well known in the community to contain numerous holes. Claimant stated that the general condition of the roadway is deplorable. As a result of this condition, Claimant’s vehicle made contact with at least two of these holes. Claimant maintains that he was traveling ten miles below the recommended speed limit. As a result of this incident, Claimant’s vehicle sustained damage to its tires and rims in the amount of $751.00. Claimant carried liability insurance only on the date of the incident; therefore, Claimant may recover the full amount of damages.
      Respondent argues that it had neither actual nor constructive notice of the condition of the roadway on the date of the incident; therefore, it cannot be held liable for damage to Claimant’s vehicle.
      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 condition of Clayton Street. The volume of the testimony, together with photographic evidence leads the Court to conclude that Respondent was negligent. Thus, Claimant may make a recovery for the damage to his vehicle.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $751.00.
      Award of $751.00.

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