Fox v. Department of Highways

West Virginia Court of Claims

Fox v. Department of Highways

13 Ct. Cl. 236

CourtWest Virginia Court of Claims

DecidedAugust 5, 1980

DocketCC-79-330

StatusPublished

This text of 13 Ct. Cl. 236 (Fox v. Department of Highways) is published on Counsel Stack Legal Research, covering West Virginia Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fox v. Department of Highways, 13 Ct. Cl. 236 (W. Va. Super. Ct. 1980).

Pincite

Opinion

WALLACE, JUDGE:

At approximately 10:30 a.m. on a day in March or April of 1979, claimant’s wife, Betty Jo Fox, was operating his 1979 Plymouth Horizon in a northerly direction on Route 20 between the cities of Meadow Bridge and Rainelle, West Virginia. Route 20 is a highway owned and maintained by the respondent.

According to the testimony of Mrs. Fox, a truck which was in front of her had straddled a pothole, obstructing Mrs. Fox’s view of the hole. In a last-minute attempt to avoid striking the pothole, Mrs. Fox drove partly onto the berm of the road. As a result, the left wheel went down into the hole, damaging the tire and knocking the car’s front end out of alignment. Introduced into evidence was a bill from Ansted Motors reflecting damages to the automobile in the amount of $106.74.

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). Furthermore, in the instant case, claimant’s wife stated that she was familiar with the road in question and “had observed (the pothole)” on other occasions. To operate a motor vehicle in the face of visible hazards, such as defects in the road, of which a driver is aware, is to assume a known risk. This bars recovery. Swartzmiller v. Dept. of Highways, 10 Ct.Cl. 29 (1973). Accordingly, this claim must be denied.

Claim disallowed.

Free access — add to your briefcase to read the full text and ask questions with AI

WALLACE, JUDGE:

At approximately 10:30 a.m. on a day in March or April of 1979, claimant’s wife, Betty Jo Fox, was operating his 1979 Plymouth Horizon in a northerly direction on Route 20 between the cities of Meadow Bridge and Rainelle, West Virginia. Route 20 is a highway owned and maintained by the respondent.

According to the testimony of Mrs. Fox, a truck which was in front of her had straddled a pothole, obstructing Mrs. Fox’s view of the hole. In a last-minute attempt to avoid striking the pothole, Mrs. Fox drove partly onto the berm of the road. As a result, the left wheel went down into the hole, damaging the tire and knocking the car’s front end out of alignment. Introduced into evidence was a bill from Ansted Motors reflecting damages to the automobile in the amount of $106.74.

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). Furthermore, in the instant case, claimant’s wife stated that she was familiar with the road in question and “had observed (the pothole)” on other occasions. To operate a motor vehicle in the face of visible hazards, such as defects in the road, of which a driver is aware, is to assume a known risk. This bars recovery. Swartzmiller v. Dept. of Highways, 10 Ct.Cl. 29 (1973). Accordingly, this claim must be denied.

Claim disallowed.

Cite This Page — Counsel Stack

Bluebook (online)

13 Ct. Cl. 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-department-of-highways-wvctcl-1980.

Opinion

Related

Cite This Page — Counsel Stack