West Virginia Legislative Claims Commission

Volume Number: 30
Opinion Issued September 13, 2013
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant, Tony Spaulding, brought this action to recover damages which occurred when his 2002 Dodge 1500 struck a ditch while traveling along Route 2/6 near Kermit, Mingo County. Route 2/6 is a one lane public road maintained by Respondent. The Court is of the opinion to deny this claim for reasons more fully stated below.
      The facts giving rise to this claim occurred on January 12, 2012, at approximately 5:30 p.m. Claimant testified that while traveling home along Route 2/6 he encountered an oncoming vehicle. Claimant was forced to back his vehicle up in order to allow room for the other vehicle to pass. While backing his vehicle, Claimant hit a patch of ice which caused his vehicle to slide into a ditch. Claimant testified that the weather condition on the date of the incident was snowy and icy. As a result of the impact with the ditch, Claimant’s vehicle sustained damage to its passenger side in the amount of $4,004.86. Claimant carried liability insurance only on the date of the incident.
      Respondent argues that it had no duty to the Claimant on the date of the incident and that the incident occurred due to driver error. Claimant asserts that Respondent is negligent because it should have known that the condition of the one lane road would pose a hazard for the traveling public.
      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). “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 did not have actual or constructive notice of any conditions that would pose a threat to the traveling public. When the Respondent does not have adequate notice of a condition to allow for corrective action, there is no duty upon the Respondent to correct unknown defects.
      Based on the foregoing, the Court finds that Claimant’s claim should be, and is hereby, DENIED.
      Claim disallowed.

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