Bays v. Division of Highways

27 Ct. Cl. 39

• Court: West Virginia Court of Claims
• Decided: October 10, 2007
• Docket: CC-06-392
• Status: Published

Opinion

PER CURIAM:

Claimant brought this action for vehicle damage which occurred when his 1998 Chevrolet Cavalier struck a broken section of road while he was traveling eastbound on Plantation’s Creek Road in Putnam County. Plantation’s Creek Road is a road maintained by respondent. The Court is of the opinion to make an award in this claim for the reasons more folly stated below.

The incident giving rise to this claim occurred on December 18, 2006. Plantation’s Creek Road is a two-lane highway at the area of the incident involved in this claim. Claimant testified that he was driving on Plantation’s Creek Road when his vehicle struck a section of road that was broken off which he had not seen. Claimant’s vehicle struck the broken section of road sustaining damage to a tire totaling $58.30.

The position of the respondent is that it did not have actual or constructive notice of the condition on Plantation’s Creek Road at the site of the claimant’s accident for the date in question. Respondent did not present any witnesses or evidence at the hearing of this matter.

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 Court is of the opinion that respondent had at least constructive notice of the broken section of road which claimant’s vehicle struck and that this presented a hazard to the traveling public. The size of the broken section of road leads the Court to conclude that respondent had notice of this hazardous condition and respondent had an adequate amount of time to take corrective action. Thus, the Court finds respondent negligent and claimant may make a recovery for the damage to his vehicle.

In accordance with the findings of fact and conclusions of law stated herein above, the Court is of the opinion to and does make an award to the claimant in this claim in the amount of $58.30.

Award of $58.30.