West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): NOTICE
Opinion Issued November 26, 2013
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant, Claude Allen, brought this action to recover damages which occurred when his 2004 Ford pickup truck was struck by a broken street light while traveling along an unidentified roadway in the City of Logan, Logan County. The Court is of the opinion to deny an award in this claim for reasons more fully stated below.
      The Claimant alleges that this incident occurred at approximately 9:00 a.m. on December 15, 2010. Claimant testified that while waiting at a stop light at the intersection of Route 10, Claimant heard a loud noise and felt a jolt to his vehicle. Upon closer inspection, Claimant realized that the street lamp above his vehicle had broken and fell onto Claimant’s vehicle. Claimant stated that he could not avoid the broken lamp and that as a result of this incident his vehicle sustained damage to its body in the amount of $421.02. Claimant testified that he carried liability insurance only at the time of the incident. Claimant did not provide testimony or exhibits indicating the actual amount of damages associated with this incident.
      Respondent argues that it did not have actual or constructive notice of the condition of the street lamps along the roadway, and that Claimant has not met its burden with regard to proof of his 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 risk posed by the street lamps located along the roadway; however, the Court did request proof of damages as well as an insurance policy declarations page, which the Claimant has not provided to the Court. Therefore, the Court must dismiss Claimant’s claim.
      Based on the foregoing, the Court is of the opinion to deny Claimant’s claim for failure to provide the Court with proof of damages and proof of insurance.
      Claim disallowed.

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