Marchese v. Department of Highways

13 Ct. Cl. 230

• Court: West Virginia Court of Claims
• Decided: July 21, 1980
• Docket: CC-79-135
• Status: Published

Opinion

GARDEN, JUDGE:

This claim in the amount of $95.79 was filed against the respondent for damage to claimant’s 1978 Oldsmobile Cutlass Supreme automobile.

The wife of the claimant, Ruth Ann Márchese, testified that she was driving the automobile at the time of the accident on the Fort Henry Bridge in Wheeling, West Virginia, on February 27, 1979. It was approximately 2:00 p.m. and the weather was fair. She was proceeding westerly on Interstate 70 in the northbound lane about fifteen feet from the ramp leading from the bridge to Wheeling Island. Mrs. Márchese stated that she was traveling at approximately 15-20 mph; that the traffic was heavy and no one was in front of her; and that the right front wheel struck a hole in the pavement, causing damages in the amount of $95.79. She further testified that she did not see the hole before striking it, but was familiar with the fact that potholes did exist on the bridge. She also stated that it had been necessary for her to take evasive driving action to avoid potholes prior to the accident.

The law is well established in West Virginia that the State is neither an insurer nor a guarantor of the safety of motorists on its highways. Adkins v. Sims, 130 W. Va. 645, 46 S.E. 2d 81 (1947). Its only duty to the traveler is a qualified one, namely, that of reasonable care and diligence in the maintenance of a highway under all circumstances. Parsons v. State Road Commission, 8 Ct.Cl. 35 (1969). There being no evidence in the record establishing notice to the respondent of the existence of the pothole, which is necessary to prove a failure on the part of the respondent to exercise reasonable care in maintaining the road, the Court hereby denies the claim. Cline v. Department of Highways, 13 Ct.Cl. 212 (1980).

Claim disallowed.