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 brought this action for personal injuries which occurred while walking along W. Va. Route 19 in Clarksburg, Harrison County. W. Va. Route 19 is a public road maintained by Respondent. The Court is of the opinion to deny this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred on July 9, 2009. Claimant stated that he was walking with his girlfriend along the side of the roadway towards Village Square in Clarksburg when he lost his footing and fell into a hole, which Claimant states should have been maintained in a better condition by the Respondent. Claimant admitted that immediately preceding the fall he had turned his head to look at a passing vehicle. As a result of Claimant’s fall, Claimant testified that he sustained numerous cuts, sprains, and abrasions. Claimant did seek medical attention at some point after the incident. However, Claimant has not offered evidence of medical records pertaining to this incident. Likewise, the Claimant did not offer evidence that in fact there is a hole at the location alleged in his Notice of Claim. Claimant does admit that he has been adjudged completely disabled; therefore, he is only seeking pain and suffering from the State for his alleged injuries.
      It is the Claimant’s position that Respondent knew or should have known about the hole situated along W. Va. Route 19 which created a hazardous condition to the traveling public and that Respondent was negligent in failing to properly maintain W. Va. Route 19 prior to the incident.
      The position of the Respondent is that it did not have actual or constructive notice of the condition on W. Va. Route 19 at the time of the incident. Respondent also maintains that Claimant has failed to establish that any injuries occurred.
      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). The Court has previously held Respondent liable where the driver of the vehicle was forced to use the berm in an emergency situation, and the berm was in disrepair. See Handley v. Div. of Highways, CC-08-0069 ( 2008); Warfield v. Div. of Highways, CC-08-0105 ( 2008).
      In the instant case, Claimant did not meet its burden of proof. Claimant failed to establish that in fact there was a hole on the date of the incident and that he made contact with the alleged hole. Respondent could not offer evidence to refute a condition that may or may not have been present. Even if this Court should find that there was a defective road condition and that the State had notice of such condition, there could be no determination of damages given the lack of evidentiary support. The Court is sympathetic to the Claimant’s position. Nevertheless, proof is essential to this Court’s determination of liability and damages.
      In view of the foregoing, the Court is of the opinion to, and does hereby, DENY this claim.
      Claim disallowed.

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