McFann v. Department of Highways

West Virginia Court of Claims

McFann v. Department of Highways

13 Ct. Cl. 33

CourtWest Virginia Court of Claims

DecidedSeptember 20, 1979

DocketCC-78-257

StatusPublished

Cited by1 cases

This text of 13 Ct. Cl. 33 (McFann v. Department of Highways) is published on Counsel Stack Legal Research, covering West Virginia Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McFann v. Department of Highways, 13 Ct. Cl. 33 (W. Va. Super. Ct. 1979).

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Opinion

WALLACE, JUDGE:

On or about September 16,1978, at approximately 10:00 p.m., the claimant was driving on Route 61 between Cabin Creek and Montgomery, West Virginia. The claimant testified that he was proceeding at a speed of approximately 35 miles per hour. It was raining and the visibility was poor. As he encountered three or four cars coming in the opposite direction in the vicinity of Crown Hill, West Virginia, the claimant struck a hole in the berm of the road, which hole was six to eight inches deep and extended into the highway for an estimated eight to ten inches. Claimant’s automobile sustained damages in the amount of $276.30.

At the time of the accident, Route 61 between Cabin Creek and Montgomery was undergoing extensive re-paving and berm work. Construction signs of the Black Rock Construction Co. were posted at each end of the construction area. The claimant testified that he was aware of the road construction in the area.

Without a positive showing of negligence on the part of the respondent, this case must fall within the purview of the [34]*34well-settled principles of Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947) to the effect that the State is not an insurer of the safety of a traveler on its highways. There is nothing in the record by which actual negligence on the part of the respondent can be established. Therefore, the Court is of the opinion to and does hereby disallow the claim.

Claim disallowed.

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WALLACE, JUDGE:

On or about September 16,1978, at approximately 10:00 p.m., the claimant was driving on Route 61 between Cabin Creek and Montgomery, West Virginia. The claimant testified that he was proceeding at a speed of approximately 35 miles per hour. It was raining and the visibility was poor. As he encountered three or four cars coming in the opposite direction in the vicinity of Crown Hill, West Virginia, the claimant struck a hole in the berm of the road, which hole was six to eight inches deep and extended into the highway for an estimated eight to ten inches. Claimant’s automobile sustained damages in the amount of $276.30.

At the time of the accident, Route 61 between Cabin Creek and Montgomery was undergoing extensive re-paving and berm work. Construction signs of the Black Rock Construction Co. were posted at each end of the construction area. The claimant testified that he was aware of the road construction in the area.

Without a positive showing of negligence on the part of the respondent, this case must fall within the purview of the [34]*34well-settled principles of Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947) to the effect that the State is not an insurer of the safety of a traveler on its highways. There is nothing in the record by which actual negligence on the part of the respondent can be established. Therefore, the Court is of the opinion to and does hereby disallow the claim.

Claim disallowed.

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13 Ct. Cl. 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcfann-v-department-of-highways-wvctcl-1979.

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