Cooksey v. Department of Highways

12 Ct. Cl. 195

• Court: West Virginia Court of Claims
• Decided: October 23, 1978
• Docket: No. CC-77-114
• Status: Published

Opinion

RULEY, JUDGE:

On March 23, 1977, an automobile owned and driven by the claimant struck a pothole in Route 60, near Belle, damaging the right front tire and wheel. The claimant asserts that the accident was caused by the respondent’s negligence and seeks damages in the sum of $162.63.

The State is neither an insurer nor a guarantor of the safety of motorists travelling on its highways. Adkins v. Sims, 130 W.Va. 645 (1947); Lowe v. Department of Highways, 8 Ct. Cl. 210 (1971). Therefore, claimant must prove that respondent failed to conform to a standard of “reasonable care and diligence * * * under all the circumstances.” Parsons v. State Road Commission, 8 Ct. Cl. 35 (1969). In the instant case, the pothole was located near the claimant’s right-hand edge of the pavement. It also was filled with water, from a rain earlier in the day. There is no evidence that respondent had either actual or constructive notice of the pothole. See Davis v. Department of Highways, 12 Ct. Cl. 31 (1977); Swift v. Department of Highways, 10 Ct. Cl. 56 (1974). Accordingly, the evidence is not sufficient to establish negligence on the part of the respondent, and this claim must be denied.

Claim disallowed.