OPINION ISSUED AUGUST 8, 1988
ORVILLE GLEN LUSK
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
On January 30, 1988, claimant's daughter, Marsha Lusk, was
her father's vehicle, a
1983 Ford EXP, on Route 99 in Bolt, West Virginia. The vehicle
loose cinders located
on the roadway and extending into the berm, and entered a pothole.
vehicle was totalled,
and claimant seeks $3,000.00.
Marsha Lusk testified that she was travelling between 40 and 45
per hour. It was 8:30
p.m., and "hazy". She was proceeding from Oceana to Beckley, and
accompanied by two
of her friends. As she started around a curve, the automobile
loose cinders, and entered
a pothole. She lost control of the vehicle. The vehicle landed on
side between a tree and a
fence post. She had driven this route the week before this
she had not noticed the
Deputy Sheriff Eric Rogers testified he had investigated the
He observed cinders and
salt on the roadway. He stated that it was normal snow removal
It was foggy, the road
surface was wet, and ice had formed over the hole. The accident
travelled, from the time
it left the roadway, between 120 and 125 feet.
Mr. Dale R. Wooten, foreman at the Bolt Outpost for respondent,
testified that he was familiar
with the location of the accident. The records indicate that this
was treated with normal ice
removal treatment on January 28, 1988.
The claimant's daughter was operating the vehicle at 40-45 miles
hour, an excessive rate of
speed for the conditions then and there existing. Negligence on
respondent's part, therefore, has
not been shown. Since the State is neither an insurer nor a
the safety of motorists on
its highways [Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947)],
claim must be