Allen v. Division of Highways

26 Ct. Cl. 94

• Court: West Virginia Court of Claims
• Decided: November 20, 2006
• Docket: CC-05-236
• Status: Published

Opinion

PER CURIAM:

Claimants brought this action for vehicle damage which occurred when their 2003 Dodge Durango struck a loose man hole cover while claimant Robert A. Allen was traveling on Washington Street in Charleston, Kanawha County. Washington Street is a road maintained by respondent. The Court is of the opinion to deny the claim for the reasons more fully stated below.

The incident giving rise to this claim occurred between 9:10 a.m. and 9:15 a.m. on April 8, 2005, a clear and dry morning. Washington Street is a four-lane highway at the area of the incident involved in this claim. Claimant Robert Allen testified that he was driving on Washington Street when his vehicle struck a loose manhole cover that he had not seen. Claimants’ vehicle sustained damage to a tire and rim. The damage sustained totaled $643.60. Claimants’ insurance deductible was $250.00.

The position of the respondent is that it was not responsible for the maintenance of the manhole cover on Washington Street at the site of the claimants’ accident for the date in question. David Fisher, Highway Administrator 2 for the respondent in Kanawha County, testified the manhole cover was for a storm sewer drain and that the manhole cover belongs to the City of Charleston. He further stated that the City of Charleston is responsible for the maintenance of the manhole cover.

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 vs. Sims, 130 W.Va. 645; 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).

In the instant case, the evidence established that the respondent was not responsible for the manhole cover on Washington Street in Charleston. Consequently, there is insufficient evidence of negligence upon which to justify an award. Thus, the claimants may not make a recovery for their loss in this claim.

In view of the foregoing, the Court is of the opinion to and does deny this claim.

Claim disallowed.