West Virginia Legislative Claims Commission

Volume Number: 30
Opinion Issued November 26, 2013
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant, Evan S. Pauley, brought this action to recover damages which occurred when his 2008 Ford Escape lost traction along Flaggy Meadow Road in Morgantown, Monongalia County. Flaggy Meadow Road 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 facts giving rise to this claim occurred on February 3, 2013, at approximately 11:54 a.m. Claimant testified that while returning home from celebrating his niece’s birthday in Morgantown his vehicle began to slide uncontrollably down a hill located along Flaggy Meadow Road. Claimant stated that the road was snow-covered; however, Claimant stated that he proceeded down the hill with all precautions including placing the vehicle in neutral. Claimant also stated that his vehicle was equipped with four wheel drive and did have weather-appropriate tread on its tires. Claimant maintains that his vehicle struck a large hidden rut in the roadway which caused his vehicle to “slingshot” off of the roadway and into a structure located along the side of the roadway. As a result of its contact with the structure, Claimant vehicle sustained damages in the amount of $2,170.48. Claimant carried a $2,000.00 collision deductible at the time of the incident.
      Respondent’s witness, Larry Weaver, Monongalia County Administrator for Respondent, stated that Flaggy Meadow Road should have been better maintained; however, given that it is a low priority road, Respondent simply did not have the time to clear the roadway or correct any road defects. Claimant argues that Respondent had actual or constructive notice of the condition along Flaggy Meadow road and that a road’s priority is irrelevant to a determination of negligence. The Court agrees.
      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 risk posed by ruts located along Flaggy Meadow Road because Respondent testified that it had not maintained the roadway in over three years. By Respondent’s own admission low priority roadways should be maintained every three years. Therefore, Claimant should be entitled to recovery in this instance. A State road’s priority however established is simply not a defense to negligence.
      Based on the foregoing, the Court is of the opinion that the Claimant should be awarded the sum of $2,000.00, which is equal to Claimant’s collision insurance deductible at the time of the incident.
      Award of $2,000.00.

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