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, Krista Oxley, brought this action to recover damages which occurred when her 2001 Nissan Quest struck rocks along U.S. Route 119 near Chapmanville, Logan County. U.S. Route 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 facts giving rise to this claim occurred on January 15, 2011, at approximately 7:30 p.m. Claimant testified that while traveling down Corridor G in the fast lane she quickly came upon a small rock in the travel portion of the roadway. Claimant stated that she attempted to avoid the rock but could not swerve to the right hand lane because another vehicle occupied it. The driving conditions on the evening in question were clear and dry. Claimant quickly pulled to the side of the road and activated the vehicle’s emergency lights. Claimant testified that the vehicle soon caught fire. As a result of this incident, Claimant’s vehicle sustained a total loss in the claimed amount of $8,019.36. Claimant carried liability insurance only on the date of the incident.
      Respondent argues that in this case it had neither actual nor constructive notice of a rock lying on U.S. Route 119, and that it posed a threat to the traveling public. Therefore, Respondent maintains that it cannot be held liable absent some proof of notice.
      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 rocks along the roadway. The volume of testimony along with photographic evidence leads the Court to conclude that Respondent was negligent based on these narrow facts. Thus, Claimant may make a recovery for the damage to her vehicle.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $8,019.36.
      Award of $8,019.36.

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