OPINION ISSUED DECEMBER 12, 1986

DELTA W. HARRAH AND EVA KAY HARRAH
VS.
DEPARTMENT OF HIGHWAYS

(CC-86-85)

Claimant, Delta W. Harrah, appeared in person.
Andrew Lopez, Attorney at Law, for respondent.

PER CURIAM:

On February 18, 1986, at approximately 9:00 a.m., the claimant was
operating his 1984
Buick Century in a westerly direction on Route 60 at the Campbells Creek
intersection when
the vehicle struck a pothole. The claimant originally filed the claim in
his own name. The car is
titled in both claimants' names, Delta W. Harrah and that of his wife,
Eva K. Harrah. The Court
then, upon its own motion, amended the style of the claim to include Eva
K. Harrah as a party
claimant.

The claimant was travelling from his home in Fayetteville to Charleston
at a speed of
approximately 30-35 miles per hour. The impact of the pothole damaged
the left front tire and
wheel, and required realignment of the vehicle for a total amount of
$144.63. The claimant
testified that he travelled this route only occasionally. He observed
the hole before his vehicle
struck it. However, there were holes in both the lane in which he was
proceeding and the other
lane of the two-lane road. For that reason, it was impossible to avoid
the hole. The claimant
estimated that the pothole is "half as big as a bathtub. He stated that
he had not given respondent
notice prior to this accident as that was the first time he had been
"down through there for six
months or even longer."

The State is neither an insurer nor a guarantor of the safety of
motorists on the highways.
Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for the
respondent to be found
liable for the damages incurred, proof of notice., either actual or
constructive, of the defect in
question must be shown. As there was no such evidence presented, the
claim must be denied.

Claim disallowed.

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