West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued January 17, 2013
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      The Claimant, Anthony S. Viola, brought this action for vehicle damage which occurred when his 2002 Pontiac Grand Am struck a hole while he was turning onto Hideaway Lane from State Route 27 near Wellsburg, Brooke County. State Route 27 and Hideaway Lane are both maintained by the Respondent. The Court is of the opinion to deny the claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred on the evening of June 7, 2008, while the Claimant and a passenger were traveling to a friend’s high school graduation party located at a residence on Hideaway Lane. While traveling along State Route 27, and while searching for the left turn onto Hideaway Lane, the Claimant was forced to take a sharp left turn onto Hideaway Lane to avoid missing the road. While attempting to negotiate the turn, the Claimant’s vehicle struck a hole on the edge of the roadway, and the vehicle was forced off of Hideaway Lane and into a ditch. The Claimant testified that his passenger had startled him, which caused him to take the immediate left turn and go into the ditch. The Claimant’s vehicle sustained damage to the left-front bumper and fender well in an amount totaling $1,336.24. The Claimant carried only liability insurance on the vehicle.
      The position of the Respondent is that the hole in question was on the berm of the road–not in the travel portion; therefore, the Claimant was negligent in negotiating the turn and assumed the risk. Furthermore, the Respondent argues that it did not have notice of the hole on the berm of Hideaway Lane. Howard Snodgrass, Highway Administrator for Brooke County, testified on behalf of the 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 the 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, even if the Court assumes that the Respondent had, at least, constructive notice of the hole, which the Claimant’s vehicle struck, and should have known that the hole could potentially present a hazard to the traveling public, the evidence clearly established that the Claimant attempted to negotiate the turn onto Hideaway Lane at a high rate of speed and without reasonable ordinary caution. Consequently, the Court is of the opinion that the Claimant is at least fifty percent negligent in this claim. Therefore, the Claimant may not make a recovery for his loss in this claim based on West Virginia’s comparative negligence law.
      In view of the foregoing, the Court is of the opinion to and does deny this claim.
      Claim disallowed.

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