West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued July 1, 2011
     Claimants appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimants Nicholas Cumberledge and Elizabeth Cumberledge brought this action to recover damages to the tires of two vehicles that were punctured by sharp rocks on County Route 20/39, locally designated Shaw Hollow Road, in Wallace, Harrison County. County Route 20/39 is a public 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 first of two incidents giving rise to this claim occurred at approximately 6:30 a.m. on September 21, 2010. Claimant Elizabeth Cumberledge was driving Claimants’ 2001 Dodge Stratus on Route 20/39 to drop her daughter off at the bus stop. The surface of the road at this point was macadam, which, however, was in poor condition. A few days before September 21, Respondent accordingly had placed crushed stone on top of this pavement. Ms. Cumberledge testified that a sharp stone on top of the pavement, placed there by Respondent, punctured a tire on the Stratus.
      A few days later, Ms. Cumberledge was driving Claimants’ 2008 Dodge Durango back to her home along the same stretch of road and gravel when two of that vehicle’s tires were punctured by sharp rocks. Claimants opted to replace all four tires on both vehicles, in the total amount of $1,225.80. Claimants had no collision coverage on the 2001 Stratus; however, they had a collision deductible of $500.00 on the Dodge Durango, thus, Claimants’ recovery for the tires on that vehicle is limited to that amount.
      It is the Claimants’ position that Respondent knew or should have known that they created a hazardous condition to the traveling public on Route 20/39 by laying sharp gravel on top of pavement, and that Respondent was negligent in failing to properly maintain Route 20/39 or provide proper warning to the traveling public of a known hazardous condition prior to the incident.
      The position of the Respondent is that it did not have actual or constructive notice of the condition on Route 20/39 at the time of the incident. Respondent submitted into evidence a DOH-12 work report from September 8, 2010, that indicated Respondent’s crews had placed 10 tons of crusher rock on Route 20/39. David Cava, Highway Administrator for Respondent in Harrison County, testified that based upon his observation of the photographs submitted by Claimants, the rocks that punctured Claimants’ tires appeared to be of the type commonly used by Respondent.
      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, Claimants must prove that Respondent had actual or constructive notice of the defect and a reasonable amount of time to take corrective action. Pritt v. Dep’t of Highways, 16 Ct. Cl. 8 (1985); Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986).
      In the instant case, the Court is of the opinion that since Respondent placed the gravel on Route 20/39 it had, at the least, constructive notice of the condition prior to the incident. Since sharp rocks on top of the paved surface of the road created a hazard to the traveling public, the Court finds Respondent negligent. Considering the age and preexisting wear on the punctured tires, the Claimant may make a recovery of $100 per tire damaged.
      In view of the foregoing, it is the opinion of the Court of Claims that the Claimants should be awarded the sum of $300.00.
      Award of $300.00

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