West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): DAMAGES
Opinion Issued November 26, 2013
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant, Anthony Adkins, brought this action to recover damages which occurred when his 1995 Pontiac struck a hole along Whiskey Lane near Morgantown, Monongalia County. Whiskey Lane is a public road maintained by Respondent. 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 5:30 p.m. on July 18, 2011. Claimant testified that while traveling through a sharp bend along the road his vehicle struck a pothole in the travel portion of the roadway which measured approximately three feet by eight inches. Claimant stated that he could not avoid the hole and that as a result of the incident his vehicle sustained damage to its tires and wheels in the amount of $800.00. Claimant carried a $250.00 insurance deductible 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 along Whiskey Lane, and that Claimant has not met its burden with regard to its 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 large hole located along Whiskey Lane; however, the Court did request proof of damages, which the Claimant has not provided this Court. It has been over a year since the Court requested such documentation. 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.
      Claim disallowed.

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