McMillan v. Department of Highways

16 Ct. Cl. 64

• Court: West Virginia Court of Claims
• Decided: February 13, 1986
• Docket: CC-85-277
• Status: Published

Opinion

PER CURIAM:

On June 30, 1985, at about 11:30 o'clock p.m., claimant Jack Mcmillan was operating the claimants' 1983 Oldsmobile Cutlass Supreme Calais on Route 61 travelling westbound from Paintsville to Charleston, when he crossed a bridge at Slaughter's Creek. His wife and adult son were with him in the automobile. The two left wheels of the vehicle struck a pothole on the bridge. Claimant did not see the pothole before he hit it. He testified that it was approximately one foot by one foot and that it went "clear through the bridge" in reference to its depth. Claimant had travelled this route frequently before this incident. The left wheels and tires of the vehicle were damaged. Claimant's actual monetary loss amounted to $267.00 as his insurance covered the balance of the cost of the damage.

Claimant's son, Frank Lee McMillan, a truck driver, testified that he had been aware of the existence of the pothole for the better part of a year prior to the accident. He stated that during that year, a steel plate had been used by respondent to cover the pothole, but that the plate was often knocked off, as on the night of this incident.

It is the opinion of the Court that respondent's negligence was the proximate cause of the damage to the claimants' car; that claimants are entitled to an award in the amount of $267.00.

Award of $267.00.