Gainer v. Division of Highways

West Virginia Court of Claims

Gainer v. Division of Highways

20 Ct. Cl. 35

CourtWest Virginia Court of Claims

DecidedDecember 17, 1993

DocketCC-93-110

StatusPublished

This text of 20 Ct. Cl. 35 (Gainer v. Division 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

Gainer v. Division of Highways, 20 Ct. Cl. 35 (W. Va. Super. Ct. 1993).

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Opinion

PER CURIAM:

Claimant, Rosa Gainer, a resident of Glenville, West Virginia, brought this action for damages to her 1992 Buick Skylark. On April 4,1993, at approximately 12:20 p.m., claimant was proceeding east on W. VA. Route 5 in Gilmer County. She was operating her vehicle at approximately 45-50 miles per hour when her vehicle struck a hole in the road causing damages to both tires on the passenger side. The cost to replace this tires, a wheel cover, a wheel, and realigning the front end is in the amount of $540.80. The claimant has an insurance policy with a $250.00 [36]*36deductible for collision, but the policy excludes road damage to tires.

The evidence adduced at a hearing established that the claimant, although familiar with W. VA. Route 5, did not see the hole in the road prior to the time that her vehicle struck the hole. The hole was located in the travel portion of the road on the right side of the eastbound lane.

Max Marshall, Supervisor for respondent in Gilmer County, testified that he had noticed this same hole on April 2, 1993, the Friday prior to the date of claimant’s accident. He described the hole as ten to twelve inches in diameter, and that it was the only hole in the area. He did not place any warning signs or effect repairs, as it was late in the day. He had the hole repaired on the following Monday, April 5, 1993.

After having reviewed the evidence in this claim, this Court is of the opinion that respondent had actual notice of the defect in the road, and failed to provide any warning to the traveling public. It was foreseeable that a hole of this size could cause damage to a vehicle being operated by a traveler on the road. The negligence on the part of the respondent was the proximate cause of the incident herein, and as result, claimant’s vehicle sustained damages.

Therefore, this Court is of the opinion to and does make an award to the claimant in the amount of $250.00, the amount of the deductible on her collision insurance, plus $ 177.90 for the cost of replacing her tires, a total of $427.90.

Award of $427.90.

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PER CURIAM:

Claimant, Rosa Gainer, a resident of Glenville, West Virginia, brought this action for damages to her 1992 Buick Skylark. On April 4,1993, at approximately 12:20 p.m., claimant was proceeding east on W. VA. Route 5 in Gilmer County. She was operating her vehicle at approximately 45-50 miles per hour when her vehicle struck a hole in the road causing damages to both tires on the passenger side. The cost to replace this tires, a wheel cover, a wheel, and realigning the front end is in the amount of $540.80. The claimant has an insurance policy with a $250.00 [36]*36deductible for collision, but the policy excludes road damage to tires.

The evidence adduced at a hearing established that the claimant, although familiar with W. VA. Route 5, did not see the hole in the road prior to the time that her vehicle struck the hole. The hole was located in the travel portion of the road on the right side of the eastbound lane.

Max Marshall, Supervisor for respondent in Gilmer County, testified that he had noticed this same hole on April 2, 1993, the Friday prior to the date of claimant’s accident. He described the hole as ten to twelve inches in diameter, and that it was the only hole in the area. He did not place any warning signs or effect repairs, as it was late in the day. He had the hole repaired on the following Monday, April 5, 1993.

After having reviewed the evidence in this claim, this Court is of the opinion that respondent had actual notice of the defect in the road, and failed to provide any warning to the traveling public. It was foreseeable that a hole of this size could cause damage to a vehicle being operated by a traveler on the road. The negligence on the part of the respondent was the proximate cause of the incident herein, and as result, claimant’s vehicle sustained damages.

Therefore, this Court is of the opinion to and does make an award to the claimant in the amount of $250.00, the amount of the deductible on her collision insurance, plus $ 177.90 for the cost of replacing her tires, a total of $427.90.

Award of $427.90.

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20 Ct. Cl. 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gainer-v-division-of-highways-wvctcl-1993.