McDaniel v. Division of Highways

22 Ct. Cl. 57

• Court: West Virginia Court of Claims
• Decided: January 23, 1998
• Docket: CC-94-320
• Status: Published

Opinion

PER CURIAM:

The claimant brought this action for damage to his vehicle after encountering a hole on road maintained by the respondent in Martinsburg, Berkeley County.

The incident giving rise to this claim occurred on March 10, 1994, at approximately 8 p.m. Claimant was driving his 1978 Pontiac Bonneville on US Route 11, also known as Winchester Avenue, when he struck a hole. Damage included two hub caps, the fender skirt, wheel rim and outside mirror. The vehicle has not been repaired. The claimant carried liability insurance only. Estimated cost of repair was roughly $200.00.

The hole was described as approximately five or six inches deep and approximately two feet in breadth. Route 11 in this area is a high priority road in terms of maintenance and carried an average daily traffic count of approximately 20,000 vehicles in 1996. The City of Martinsburg and .the respondent share responsibility for maintaining this road. However, there was no evidence that the respondent had actual notice of the hole in question prior to the claimant’s accident.

The general rule Is that in order to hold the respondent liable for defective road conditions, the claimant must prove, by a preponderance of the evidence that the respondent had actual or constructive notice of the defect in question. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986), Hamon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986), Pritt vs. Dept. of Highways, 16 Ct. Cl. 8, (1985). The Court is of the opinion that a hole of this size must have developed over a significant amount of time and the respondent had reason to know of the defect. Therefore, the Court finds that the respondent had constructive notice of the defect and does hereby make an award in the amount of $100.00 as fair and reasonable compensation to the claimant.

Award of $100.00.