West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued February 14, 2013
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant, Theresa M. Spano, brought this action for medical damages and lost wages springing from an incident which occurred while driving her brother’s 1984 Honda motorcycle along Middle Grave Creek in Marshall County. Middle Grave Creek is a public road maintained by Respondent. The Court is of the opinion to award this claim, in part, and deny, in part, for the reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 6:00 p.m. on May 24, 2012. Claimant testified that while she was driving her brother’s motorcycle along Middle Grave Creek she encountered a turn with three large “ruts or potholes.” Claimant stated that she attempted to swerve in order to avoid the large “ruts or potholes,” but Claimant’s motorcycle wrecked in the process. The weather on the date of the incident was clear and dry and Claimant was traveling fifteen miles per hour (under the posted speed limit). As a result of this incident, Claimant sustained fractures to her arm, and Claimant’s brother’s motorcycle was totaled. Claimant testified that her brother has been reimbursed for the fair value of the motorcycle. However, Claimant has submitted medical bills to the Court indicating that all but $50.00 was paid by Claimant’s HMO. Claimant also testified to lost wages in the amount of $194.48. Claimant further seeks relief for pain and suffering in the amount of $3,500.00.
      The position of Respondent is that it did not have actual or constructive notice of the holes along Middle Grave Creek on the date of the incident. Kevin Kaufman, emergency first responder in Marshall County, testified on behalf of Respondent that Claimant appeared to have been traveling at a speed greater than the suggested speed limit while negotiating the turn, which led to her accident. Mr. Kaufman did concede that in his opinion there were obvious “road deficiencies” at the place of Claimant’s accident.
      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, the Claimant must prove that the 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 holes which caused Claimant’s damage, and the Court finds that these holes presented a hazard to the traveling public. The Court has reviewed the record with regard to damages and has determined that Claimant is entitled to $50.00 for medical bills and the amount of $194.48 for lost wages. However, Claimant has not met her burden with regard to her claim for pain and suffering. Therefore, Claimant is entitled to a recovery in the total amount of $244.48.
      It is the opinion of the Court of Claims that Claimant should be awarded the sum of $244.48.
      Award of $244.48.

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