Fisher v. Division of Highways

18 Ct. Cl. 147

• Court: West Virginia Court of Claims
• Decided: March 14, 1996
• Docket: CC-90-135
• Status: Published

Opinion

PER CURIAM:

Claimant was operating his 1988 Chevrolet Celebrity on U.S. Route 250 proceeding toward Grafton, West Virginia. It was approximately 8:30 p.m. on February 27, 1990. Claimant was familiar with the area and knew that the hole which his vehicle struck had been there for a long time. Claimant incurred the expense for a new tire in the amount of $131.82 and a tow bill in the amount of $31.50 for a total claim of $163.32.

Claimant testified that he was operating his vehicle at approximately thirty miles per hour. A vehicle was approaching in the opposite lane and claimant was unable to avoid striking the hole. Claimant described the hole as being seventeen inches wide, thirty-seven inches long and six inches deep. It was on the right side of the lane and it was located in a turn.

Dwayne A. Miller, county assistant supervisor for the respondent for Marion County, testified that respondent’s crew had placed cold mix in the area described by claimant on February 26, 1990, the day prior to claimant’s incident.

The Court is of the opinion that claimant has established constructive notice, if not actual, on the part of respondent as to the existence of the defect in the road. In fact, respondent was aware of the hole and attempted to maintain the hole with cold mix which was evidently insufficient for this particular hole.

The Court is cognizant of the fact that claimant also was familiar with the hole and, therefore, he must bear a portion of the negligence for this incident. Under the doctrine of comparative negligence the Court finds claimant forty per cent negligent and reduces his damages in the amount of $163.32 by that amount.

Accordingly, the Court makes an award to claimant in the amount of $97.99.

Award of $97.99.