OPINION ISSUED JANUARY 17, 1986

C. P. FARLEY AND REBECCA L. FARLEY
VS.
DEPARTMENT OF HIGHWAYS

(CC-85-123)

Charles P. Farley appeared for claimants.
Andrew Lopez, Attorney at Law, for respondent.

PER CURIAM:
On February 2, 1985, the claimant was driving his 1980 Plymouth Champ
southbound on
Route 19 one mile north of the Muddlety exit when the car hit a pothole.
The car sustained
damage to one tire in the amount of $32.55. The claimant testified that
he estimated the pothole
to be 16 to 18 inches square, and about 5 to 6 inches deep. Claimant
noted that the pothole
matched a piece of asphalt laying on the road in close proximity to it.

The claimant testified that there had been recent snow removal by
snowplows on the section of
Route 19 where the accident occurred. It was claimant's contention that
the blade of the plow
lifted an existing patch from a pothole, thus exposing the hole to the
travelling public. The
claimant further testified that he frequently travelled this road and
that he had travelled the road
within two weeks of the accident, and the pothole did not exist at that
time.

The law of West Virginia is well established that the State neither
insures nor guarantees the
safety of motorists on its highways. Adkins v. Sims, 130 W.Va. 645, 46
S.E.2d 81 (1947). For
the respondent to be found liable for damages caused by road defects of
this type, the claimants
must prove that the respondent had actual or constructive notice of the
defect and a reasonable
amount of time to take corrective action. Davis v. Dept. of Highways, 12
Ct.Cl. 31 (1977);
Haskins v. Dept. of Highways, 12 Ct.Cl. 60 (1977); Hicks v. Dept. of
Highways, 13 Ct.Cl. 310
(1980). As there was no such evidence presented, the claim must be
denied.


Claim disallowed.

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