Kniceley v. Division of Highways

21 Ct. Cl. 69

• Court: West Virginia Court of Claims
• Decided: January 26, 1996
• Docket: CC-95-148
• Status: Published

Opinion

PER CURIAM:

Claimants, Shawn Kniceley and Elizabeth Kniceley, seek an award of $419.74 from respondent, Division of Highways, for damage to their vehicle, a 1994 Eagle Talon. The damage occurred on January 25, 1995, at approximately 3:00 p.m., while Ms. Elizabeth Kniceley was traveling on Harrison County Route 13. During the drive, Ms. Kniceley was proceeding between 30 to 35 miles per hour when she encountered a large hole which extended from the shoulder into the paved portion of the roadway. The hole was approximately one foot in diameter and between five and six inches deep. According to Ms. Kniceley, she was aware of the hole, and she had been able to drive around it on prior occasions. However, on this occasion, she was unable to avoid the hole because of oncoming traffic, although Ms. Kniceley was aware of the hole for several weeks prior to the accident, she never informed respondent about the hole.

As a result of the accident, the vehicle sustained damage to the alignment and a wheel. Receipts for the repairs to the vehicle were admitted into evidence which totaled $419.74. The vehicle was covered by an insurance policy which did not provide for recovery for damage to the wheels.

The Harrison County road maintenance superintendent, Mike Scott, testified that County Route 13 is a two-lane, paved road, and'the pavement surface is approximately twenty feet wide at the location of the accident. According to Mr. Scott, road crews performed patching activity along County Route 13 on January 26, 1995, and he had not received any complaints about this hole until after the accident. The record also reveals that County Route 13 serves as primary feeder route to Interstate 79, and carries a large volume of heavy vehicles.

This Court has consistently followed the principle that for respondent to be held liable for a road defect, it must have either actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986). In the instant claim, the record establishes that there was a large hole on a heavily traveled feeder road from which the Court concludes that respondent, - at the very least, had constructive notice, and that respondent was negligent in its maintenance of this road. The Court also is aware that the claimants had notice of the defect on County Route 13; therefore, the Court finds that the claimants were negligent and reduces the award by twenty-five percent (25%) for an award of $314.80.

Award of $314.80.