West Virginia Legislative Claims Commission

Volume Number: 30
Opinion Issued February 5, 2014
     Claimant appeared pro se.
     C. Brian Matko, Attorney at Law, for Respondent.
      Claimant, Shayna Dorazio, brought this action to recover damages which occurred when her 2012 Mitsubishi Lancer struck rocks along Route 43 near Cheat Lake, Fayette County. Route 43 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 November 2, 2012, at approximately 6:30 a.m. Claimant testified that after crossing a bridge along Route 43, she encountered an area of the roadway that was covered in “softball-sized” rocks. Claimant stated that her vehicle struck these rocks because contact was unavoidable. Claimant testified that road conditions were clear and dry. As a result of the incident, Claimant’s vehicle sustained damage to it’s body and frame in the amount of $5,432.51. Claimant carried a $1,000.00 collision insurance deductible amount on the date of the incident; therefore, Claimant is limited to an award in that amount.
      Respondent argues that it had neither actual nor constructive notice of the road condition on the date of the incident; therefore, it cannot be held liable for Claimant’s damage.
      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 use of large crusher run limestone. The volume of the testimony together with other evidence leads the Court to conclude that Respondent was negligent. Thus, Claimant may make a recovery for the damage to her vehicle in the amount of her deductible.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $1,000.00.
      Award of $1,000.00.

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