West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): BERMS
Opinion Issued July 30, 2013
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant, Joseph Ojeda, brought this action to recover damages which occurred when his 2005 Ford F-150 struck broken cement debris while traveling through a construction zone situated along U.S. 119 near Chapmanville, Logan County. U.S. 119 is a public road maintained by Respondent. The Court is of the opinion to grant an award in this claim for reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 10:30 a.m. on June 10, 2011. U.S. 119 is a four-lane highway with a median. Claimant testified that the road conditions on the date of the incident were dry and the weather was clear and sunny. Claimant stated that as he entered a construction zone his vehicle struck debris created from the use of a milling machine. Claimant maintains that the equipment dislodged cement, which settled in his lane of travel, and that he could not avoid making contact with it. As a result of the incident, Claimant’s vehicle sustained damage to its tire in the amount of $200.00. Claimant maintains a collision insurance deductible amount of $1,000.00; therefore, Claimant is entitled to an award in the full amount of his claim.
      Respondent did not have a testifying witness; however, Respondent maintains that it did not have actual or constructive notice of the condition which led to Claimant’s damages.
      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). Therefore, 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). “Actual notice” is based on direct evidence known by a person or entity while “constructive notice” is defined as "[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of . . .; notice presumed by law to have been acquired by a person and thus imputed to that person." Mace v. Ford Motor Co., 221 W. Va. 198, 653 S.E.2d 660 (2007) (citing Black’s Law Dictionary at 1090 (8th Ed. 2004)).
      In the instant case, the Court is of the opinion that Respondent had, at the least, constructive notice of the debris situated along the construction zone in question. Respondent should have been on notice given the nature of the construction project and given the average daily traffic count along U.S. 119. Therefore, the Court finds that Respondent was negligent in its maintenance of U.S. 119.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $200.00.
      Award of $200.00.

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