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, George Todd, brought this action to recover damages which occurred when his 1994 Ford truck struck large ruts along U.S. Route 50 near Reynoldsville, Harrison County. U.S. Route 50 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 August 20, 2012, at approximately 9:00 a.m. Claimant testified that while traveling to work on the date in question he encountered a large trench situated perpendicular to the roadway. Claimant informed the Court that a private company held a permit to cut across the roadway, but that the company did not take precautions to keep the traveling public from damaging its vehicles. Claimant stated that he could not avoid making contact with the trench. As a result of this incident, Claimant’s vehicle sustained damage to its springs in the amount of $745.00. Claimant carried a $500.00 collision insurance deductible amount on the date of the incident; therefore, Claimant is limited to an award in that amount.
      Respondent argues that it had neither actual nor constructive notice of the trench along Route 50 on the date of the incident; therefore, it cannot be held liable for the damage to Claimant’s vehicle. Respondent does admit that it issued a permit to the private company implicated by Claimant and that they are responsible for maintenance of the roadway.
      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 volume of the testimony leads the Court to conclude that Respondent was negligent. The Court further recognizes that Respondent is better situated to bear the loss due to it’s ability to seek indemnification from the third party permitee. Thus, Claimant may make a recovery for the damage to his vehicle based on these narrow facts.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $500.00.
      Award of $500.00.

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