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, Patricia Wagers, brought this action to recover damages which occurred when her 2011 Ford Escape was struck by a rock along Route 52 near Maybeury, McDowell County. Route 52 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 11, 2013, at approximately 6:30 a.m. Claimant testified that while traveling between Maybeury and the McDowell/Mercer County line a rock became dislodged from a cliff and struck Claimant’s vehicle. Claimant stated that there were no warning sign. Conditions on the date of the incident was dark and rainy. Claimant informed the Court that she had seen rocks along the roadway on prior occasions. As a result of this incident, Claimant’s vehicle sustained damage to its tires and rims in the amount of $1,172.19. Claimant carried a $500.00 collision insurance deductible amount on the date of the incident, thus the total amount recoverable for vehicle damage is $500.00.
      Respondent argues that it had neither actual nor constructive notice of the rocks; therefore, it cannot be held liable for Claimant’s 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 rock slide. The volume of the testimony, together with photographs and reports of prior knowledge of the Respondent leads the Court to conclude that Respondent was negligent. Thus, Claimant may make a recovery for the damage to her vehicle as well as the out of pocket costs associated with her car rental.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $500.00.
      Award of $500.00.

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