Hubbell v. Department of Highways

15 Ct. Cl. 159

Opinion

PER CURIAM:

Claimant’s vehicle, a 1974 Chevrolet Nova, was damaged on November 17, 1983, between 9:45 p.m. and 10:00 p.m., when she struck a piece of cement on 1-64 near Winfield, West Virginia. The claimant testified that she saw something in the road which appeared to be “sheet rock no more than an inch or two high,” but later estimated the cement to be eight inches high and 2 feet by 4 feet. This estimate was based, not on actual viewing of the cement, but on marks on the underside of the vehicle. The gas tank, exhaust pipe, and fly wheel were damaged. Claimant received an estimate of repair for $471.03 and incurred a towing charge of $9.00. Claimant had no knowledge of how long the cement had been in the road.

The State is neither an insurer nor a guarantor of the safety of motorists on the highways. Adkins vs. Sims, 130 W. Va. 645, 46 S.E.2d 81 (1947). In order for the respondent to be found liable for the damages incurred, proof of actual or constructive notice of the defect in question must be shown. As there was no evidence of notice in this case, the claim must be denied.

Claim disallowed.