Bush v. Department of Highways

13 Ct. Cl. 122

• Court: West Virginia Court of Claims
• Decided: February 14, 1980
• Docket: CC-79-118
• Status: Published

Opinion

WALLACE, JUDGE:

Át approximately 10:30 p.m. on February 27, 1979, claimant’s wife, Mona Bush, was operating his 1978 Ford Fiesta in the eastbound right-hand lane of Route 60 in Kanawha County, West Virginia. At the intersection of Kanawha Terrace and Route 60, near the Rainbow Lounge, the car struck a pothole, damaging the vehicle in the amount of $195.91.

According to the testimony of the claimant, Mrs. Bush was traveling at about 40 mph, and the hole was eight inches deep. Mrs. Bush testified that she did not see the hole, and that she was driving “in the direct line of traffic travel.”

It is well established in the law of West Virginia that the State cannot and does not guarantee the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). To be held liable, the respondent must have had either actual or constructive notice of the hazardous condition of the highway. Since no such evidence of notice was brought forth in the case, the respondent cannot be found negligent. Therefore, this Court hereby disallows the claim.

Claim disallowed.