| Volume Number: 28
Category(s): STREETS AND HIGHWAYS, NOTICE |
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| Opinion Issued September 10, 2009 | |
| JASON E. HARDY | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-09-0092) | |
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Patricia Kinder Beavers, Attorney at Law, for claimant. Jason C. Workman, Attorney at Law, for respondent. |
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| PER CURIAM:
Claimant brought this action for vehicle damage which occurred when his 2008 Subaru Impreza Outback Sport struck a hole on W.Va. Route 20 in Speedway, Mercer County. W.Va. Route 20 is a road maintained by respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below. The incident giving rise to this claim occurred at approximately 7:10 p.m. or 7:15 p.m. on January 11, 2009. W.Va. Route 20 is a paved, two-lane road with a center line and edge lines. The speed limit is fifty-five miles per hour. At the time of the incident, claimant was driving from Athens to Hinton at approximately forty miles per hour when his vehicle struck a hole near the Sun Valley School on W.Va. Route 20. The hole was located on the right side of the road near the white edge line and was approximately three feet wide and between twenty-four inches and thirty-six inches long. Claimant testified that he was unable to avoid the hole due to an oncoming vehicle. As a result of this incident, claimant’s vehicle sustained damage to two tires, two rims, two tire sensors, and the tires needed to be mounted and balanced, for a total amount claimed of $1,674.04. Since claimant’s insurance deductible at the time of the incident was $500.00, his recovery is limited to that amount. Michael McMillion, Transportation Crew Supervisor for respondent in Mercer County at the time of this incident, testified that W.Va. Route 20 is a first priority road in terms of its maintenance. He stated that respondent uses cold patch, a temporary repair used during the winter months, when hot mix, a permanent repair, is unavailable. Factors such as traffic and weather conditions affect the durability of cold mix. Mr. McMillion testified that he first became aware of the hole during the winter months. The DOH12s, records of respondent’s work activity, indicate that respondent was patching holes on W.Va. Route 20 with cold mix on January 6, 2009, and on January 9, 2009. Respondent’s crews did not work on Sunday, January 11, 2009. On January 12, 2009, respondent repaired the hole at this location with cold mix. The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986). In the instant case, the Court is of the opinion that respondent had, at the least, constructive notice of the hole which claimant’s vehicle struck and that the hole presented a hazard to the traveling public. In Mann v. Division of Highways, CC-09-0106, the Court found that respondent was negligent in its maintenance of W.Va. Route 20 for an incident that occurred at 7:00 p.m. on January 11, 2009, involving the same hole. Thus, the Court finds respondent negligent and claimant may make a recovery for the damage to his vehicle. In accordance with the findings of fact and conclusions of law stated herein above, the Court is of the opinion to and does make an award to the claimant in the amount of $500.00. Award of $500.00. |
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| Summary: Claimant brought this action for vehicle damage which occurred when his 2008 Subaru Impreza Outback Sport struck a hole on W.Va. Route 20 in Speedway, Mercer County. The Court is of the opinion that respondent had, at the least, constructive notice of the hole which claimant’s vehicle struck and that the hole presented a hazard to the traveling public. Thus, the Court finds respondent negligent. |