Lewis v. Department of Highways

16 Ct. Cl. 136

• Court: West Virginia Court of Claims
• Decided: December 12, 1986
• Docket: CC-86-81
• Status: Published

Opinion

PER CURIAM:

On February 19, 1986, between approximately 7:30 and 8:00 p.m., claimant's wife, Margaret Lewis, was operating claimant's company car, a 1985 Celebrity, when the vehicle struck a pothole. Claimant has an agreement with his employer, Turnpike Chevrolet, that he is responsible for damage to the company vehicle up to $500.00. Claimant's wife was travelling on Kanawha Turnpike in South Charleston, West Virginia. She testified that the road is a two-lane highway, and the road was very dark at the time of this incident. She was travelling at approximately 30 - 35 miles per hour. The vehicle struck a pothole which measured approximately 3 112 - 4 feet long, 2 112 feet wide, and 6-8 inches deep. She was not aware that the hole existed prior to the vehicle striking it. The hole was on the left-hand side of her lane of the road. The vehicle's left front tire struck the hole. The vehicle was damaged in the amount of $364.52.

Claimant's wife was driving home, and she had her five-year-old daughter in the car with her at the time of this incident.

While the State does not insure the safety of travellers on its highways, respondent does owe a duty-of reasonable care and diligence in the maintenance of the highways. Although there was no direct evidence that the respondent had actual notice of the existence of this defect. The Court is of the opinion that it did have constructive notice. The size of the pothole is indicative of its presence for some time prior to the date of this incident. See Stone v. Dept. of Highways, 12 Ct.Cl. 259 (1979) and Miller v. Dept. of Highways, CC-84-71 (1985). The Court hereby makes an award to the claimant in the amount of $364.52.

Award of $364.52.