Jeffrey V. Kessler, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.


On August 25, 1986, the claimant was travelling on Fish Creek Road
(County Road 74), in
Marshall County, in his 1976 Dodge van. The road gave way underneath the
van. As a result,
the van was totalled. Claimant seeks $15,000.00.

Claimant testified that he was travelling from Moundsville to his home
in Marshall County. He
left Moundsville between 3:30 and 4:00 p.m. He drove this route two to
three times per week
and was aware that there was a "bad spot" on the left side of the road.
He stated that the road
had been "semi-repaired... ." His speed was 15 to 20 miles per hour. The
right front wheel of the
van went down into a place where a piece of the asphalt road had broken
off under the wheel of
the van. The van turned over and ended up in the creek. Claimant crawled
back up to the
highway and received assistance. County Route 74 is supposed to be a
two-lane road, but parts
of it are not, according to the claimant. There were no warning signs
nor road markings present
at the time of claimant's accident. The piece of the road which broke
off was approximately
afoot wide. The claimant had observed problems in this area of the road
in the past. The dirt
beneath the pavement had washed away, and there was no support for the
asphalt. His van was
a width of a tire from the edge of the road at the time of this
incident. The van was five or six
yards from the highway when it landed in the creek, and the van was
right in against the bank on
the roadside of the creek. The claimant was transported to Reynolds
Memorial Hospital, and he
remained there one night. He suffered bruises on his legs and an
infection in his scalp.

Gordon Scott Peake, Area Maintenance Engineer with respondent,
testified concerning the
area of the accident. The road is 12 feet wide at the narrowest point
and 14 feet wide at the
widest point. The accident site is an old slip area which has been
present for at least 10 years. It
is relatively level and in a right-hand curve. On January 12, 1989, Mr.
Peake was at the site and
noted that there was a "one Lane Road" sign 1,000 feet south of the
slip. He stated that the slip
has not been repaired because it is located out in the country, and it
is 14 miles from Route 2.
The average daily traffic county on this road is very low. He admitted
that it is a slip area and is
saturated with water due to an abandoned creek. He explained that the
surrounding area "...
picks up a lot of ground water." He could not say if the warning sign
was present on the day of
the accident.

It is the opinion of the Court that the record does not support a
showing of negligence on the
part of respondent. Respondent had neither actual nor constructive
notice of this hazard. The
Court has previously held that where there was no evidence that
respondent knew or should
have known of the propensity of the road to collapse, there will be no
recovery on the part of
the claimant. See Motorists Mutual Ins. Co. vs. Dept. of Highways,
December 3, 1988); Winemiller vs. Dept. of Highways, (OPINION ISSUED
March 3, 1989).
Therefore, the Court must deny this claim.

Claim disallowed.