Davis v. Department of Highways

14 Ct. Cl. 54

• Court: West Virginia Court of Claims
• Decided: November 9, 1981
• Docket: CC-81-170
• Status: Published

Opinion

WALLACE, JUDGE:

Claimant filed this claim against the respondent in the amount of $113.40 for damages to his 1979 Chevrolet Malibu station wagon.

At approximately 10:00 p.m. on May 22, 1981, the claimant was driving his automobile southerly on W.Va. Route 119 proceeding from Kanawha City to Racine, West Virginia. It was raining. He was traveling 35-40 miles per hour on the two-lane highway. There was no traffic in front of or behind him. About 4V2 miles from Marmet, the claimant’s automobile struck a hole in the pavement about one foot from the berm on the right-hand side of the highway. The right front tire and wheel were damaged. The claimant testified that he travelled the road once or twice a month, and that he did not see the hole.

The simple existence of a pothole in the road does not make the State negligent per se. For the State to be found negligent, it must have had actual or constructive notice of the particular road defect which allegedly caused the accident, and must have unreasonably allowed that defect to continue to exist. Davis v. Dept. of Highways, 12 Ct.Cl. 31 (1977). The record in this case contains no evidence of any notice to the respondent or failure to act on respondent’s part. Thus, the respondent cannot be found negligent. Recognizing that the State is neither an insurer nor a guarantor of the safety of persons travelling on its highways (Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 [1947]), and that no award can be made without proof of negligence, the Court must disallow this claim. See Hanson v. Dept. of Highways, 12 Ct.Cl. 198 (1978). Smith v. Dept. of Highways, 14 Ct.Cl. 11 (1981).

Claim disallowed.