West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued January 10, 2012
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant brought this action for vehicle damage, which occurred while he was driving his 2008 BMW 335XI. Claimant struck a large hole while traveling along County Route 50/32 near Bridgeport, Harrison. County Route 50/32 is a public road maintained by Respondent. The Court believes that Claimant should receive an award in this claim for reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 10:30 p.m. on May 7, 2011. County Route 50/32 is a two-lane road with painted white edge lines and a center line. Claimant testified that he had not taken this particular road in many years so he was not aware that a hole was on the roadway. The hole was located in the main travel portion of the road and there was no warning sign or hazard paddle to alert drivers. As a result, the Claimant’s vehicle sustained damage to one tire and two wheels in the amount of $445.17. Claimant’s vehicle had insurance, which requires a $500.00 deduction; therefore, any award to Claimant is limited to the amount of the deduction.
      The position of the Respondent is that it had already placed “cold patch” along County Route 50/32 and it did not have actual or constructive notice of the hole that Claimant’s vehicle struck.
      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, Claimant 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 Respondent had, at the least, constructive notice of the hole which Claimant’s vehicle struck, and that hole presented a hazard to the traveling public. The size of the hole, its location on the travel portion of the road, and the fact that this is the only road leading to the airport leads the Court to conclude that Respondent was negligent in its maintenance of the road. Thus, Claimant may make a recovery for the damage to his vehicle.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $445.17.
      Award of $445.17.

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