OPINION ISSUED DECEMBER 19, 1988
ANITA ANN ERWIN AND
CRAIG SCOTT ERWIN
VS.
DEPARTMENT OF HIGHWAYS
(CC-88-154)
Claimant Anita Ann Erwin appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
This claim was originally styled in the name of Anita Ann Erwin;
however, testimony indicated
that the vehicle, a 1982 Chevrolet Celebrity, was titled in the
names of
Anita Ann Erwin and
Craig Scott Erwin, and the Court, on its own motion, amended the
style
to include Craig Scott
Erwin as a party claimant.
Claimant Anita Ann Erwin testified that the vehicle struck "a
hooved up
piece of asphalt" on
Corridor G (U.S. Route 119) while she was travelling from Logan and
proceeding toward
Williamson. The incident occurred on April 21, 1988, between 1:00
and
1:30 p.m. It was dry
and sunny. The oil pan and the transmission of the vehicle were
damaged
in the amount of
$645.51. Claimant Anita Erwin is unaware when this damage to the
roadway
occurred.
Mike Kolota, Jr., Acting Supervisor of Logan and Mingo Counties
for the
respondent at the
time of this incident, stated that he is familiar with the accident
site. He travelled on U.S. Route
119 at approximately 9:00 the morning of April 21, 1988, and the
roadway
was "... cracked a
little bit." He returned between 1:30 and 2:00 p.m. At that time,
he
observed the hazard and
dispatched men as flagmen and to place signs. This was the first
notice
he had of the hazard.
John M. Sammons, Supervisor of Corridor G for respondent,
testified
that he reviewed the
pertinent records regarding complaints. He checked with the clerks
and
reviewed the telephone
logs. Respondent had received neither calls nor complaint forms
pertaining to that location.
John M. Sammons, Supervisor of Corridor G for respondent,
testified
that he reviewed the
pertinent records regarding complaints. He checked with the clerks
and
reviewed the telephone
logs. Respondent had received neither calls nor complaint forms
pertaining to that location.
The State is neither an insurer nor a guarantor of the safety of
motorists on its highways.
Adkins vs. Sims, 130 W.Va. 645, 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. The evidence in this record indicates that
the
dangerous condition
appeared suddenly and that the respondent acted promptly to take
safety
precautions as soon as
it became aware of the problem. Barnhart vs. Dept. of Highways, 12
Ct.Cl. 236 (1979),
Moore vs. Dept. of Highways, and Taylor vs. Dept of Highways,
CC-85-167
(Opinion
issued February 19, 1986). The Court is of the opinion that
negligence
on the part of the
respondent has not been established, and, therefore, the Court
denies
this claim.
Claim disallowed.