R. Lee Booten, II, Attorney at Law, for claimants.
Andrew Lopez, Attorney at Law, for respondent.


This claim arises out of an automobile accident which took place on
April 9, 1984, on U.S.
Route 52 near Taylorsville, Mingo County. Claimant Joseph Mullins was
injured in the accident
and seeks damages for his injury and the resultant medical expenses.
Claimant Dora Mullins
seeks damages for the loss of her Volkswagen automobile and for loss of

It is alleged that respondent failed to repair two potholes and failed
to properly maintain water
drainage at the scene of the accident. The accident occurred on April 9,
1984 between 9:00 and
10:00 p.m. Claimant was driving his wife's Volkswagen automobile in a
northerly direction on
route to meet his wife in Taylorsville. Claimant was alone in the
vehicle at the time. Claimant's
testimony revealed that it was dark and raining steadily on the evening
of the accident. Claimant
approached an S-shaped curve and swerved to the left to avoid a second
pothole. The front tire
of the automobile dropped into the hole. The automobile's tire blew out.
After claimant's
automobile struck the second pothole, he did not have the automobile
under control. The
automobile proceeded into an accumulation of water on the road and then
veered off the road
and overturned into a ditch.

Claimant crawled up to the road surface and was picked up by a friend,
Robert Justice, who
transported claimant to his mother's house. Claimant refused to go to
the hospital that evening,
but his mother took him to Logan General Hospital the next day. Claimant
was then transported
by ambulance to Charleston Area Medical Center where he was treated for
a broken neck.
Claimant remained at that facility until April 21, 1984, when he was

The parties submitted the deposition of Dr. Tony C. Majestro taken
February 4, 1986. Dr.
Majestro stated the following prognosis: "Healing of this fracture is
usually satisfactory. He
should be able to return to his original employment after complete
healing of the fracture."

There is conflicting evidence in the record concerning the size of the
potholes. The claimant
described the first pothole as being 10 to 12 inches wide and
approximately 6 to 8 inches deep.
He indicated that the second pothole was approximately 31/2 feet in
length, 16 to 18 inches in
width, and 10 to 12 inches in depth.

Trooper B. R. Chafin, who investigated the accident, confirmed the fact
that there was a large
section of water on the road at the time. When queried by the Court,
Trooper Chafin stated that
he did not observe any particularly large potholes at the scene.

Claimants' witness, Mrs. Gladys Burke, testified that on December 7,
1983, she reported
water "had went across the road..." at the "Andy Farley" curve which she
described as an "S'
curve. She also reported water on the road in two other places at the
same time. She telephoned
the "State road garage' and spoke to a woman who identified herself as

It is the opinion of the Court that the record establishes that
respondent was negligent in failing
to maintain the drainage of water onto the road at this site. However,
the record establishes that
the claimant was familiar with the existence of potholes in the road and
with the propensity of
water to accumulate on the surface of the road at this particular
location. Under the doctrine of
comparative negligence, the negligence of the claimant in traveling the
road at night, in the rain,
and known to him to be in disrepair, was equal to or greater than the
negligence of the
respondent in its failure to maintain the stretch of water. Hatfield v.
Dept. of Highways, 14
Ct.Cl. 220 (1982). Accordingly, the claim is disallowed.

Claim disallowed.