McMillan v. Department of Highways

17 Ct. Cl. 60

• Court: West Virginia Court of Claims
• Decided: December 3, 1987
• Docket: CC-86-322
• Status: Published

Opinion

PER CURIAM:

On July 20, 1986, the claimant was operating his 1979 Honda Gold Wing motorcycle on Route 250 south of Cameron when his motorcycle encountered gravel. As a result, the motorcycle incurred damages. Claimant submitted invoices totalling $410.83 which is the amount he seeks in damages.

The claimant testified that on the day of the incident, he was travelling from his home in Moundsville to Elkins, between 11:00 and 11:30 a.m. Weather conditions were good as it was dry and sunny. The road is a blacktop, two-lane roadway, and it is "crooked" all the way from Cameron. Claimant's speed was approximately 40 miles per hour. There was new patching on the road. As his vehicle approached a small rise i the road and a left-hand turn, the entire turn was covered with very small gravel. Claimant's motorcycle slid on the gravel, whereupon it slid over an embankment and into the woods.

Claimant further stated that the day of this incident was a Sunday. Respondent was not working in the area at that time. Claimant has no personal knowledge as to how the gravel got on the roadway at that location. However, he alleges that respondent's road repair created the gravel, and, therefore, the hazard. He noted that there were patched areas on the left side of the road, and the gravel appeared to have come across the road from the patches.

The Court concludes that respondent had neither actual or constructive notice of the hazard. Respondent cannot be held liable unless notice is established by the claimant. As there was no such evidence presented, the claim must be denied.

Claim disallowed.