Messner v. Division of Highways

24 Ct. Cl. 267

• Court: West Virginia Court of Claims
• Decided: January 17, 2003
• Docket: CC-02-370
• Status: Published

Opinion

PER CURIAM:

Claimant brought this action for damage to her 1998 Chrysler Sebring which occurred when she was traveling on Route 161 between Horse Pen and Bishop in McDowell County and her vehicle struck a large hole in the road. Respondent was responsible at all times herein for the maintenance of Route 161. The Court is of the opinion to make an award in this claim for the reasons set forth below.

The incident giving rise to this claim occurred on August 3, 2002, at approximately 3:00 p.m. .Claimant was traveling from Horse Pen to Squire for a family reunion. Claimant’s sister was also traveling to the reunion and her sister was in a vehicle in front of claimant by a few car lengths. It was a cloudy but dry day and the road surface was dry. Claimant described this area of Route 161 as a typical curvy McDowell County road. It had double yellow lines and white lines on the edges at the location of this incident. Claimant was traveling at approximately thirty miles-per-hour when she rounded a curve. Suddenly, when she came out of the curve she saw her sister’s vehicle swerve, and without warning claimant saw a large hole in the road ahead of her. She attempted to maneuver her vehicle to avoid striking the hole but was unable to do so. She testified that she did not see the hole in time enough to avoid it. The impact was severe enough to damage a rim and a tie rod, The vehicle also had to be realigned. Claimant introduced a photograph into evidence demonstrating the size of the hole and its location. The hole is located in the middle of the road and extends several inches into both lanes of travel. Claimant also testified that the hole was approximately ten inches deep and eighteen inches wide. Claimant’s sister, Mona Smith, also testified that she had a difficult time avoiding this hole and barely swerved her vehicle in time to do so. Claimant submitted a repair bill into evidence in the amount of $630.73. However, claimant has comprehensive insurance coverage on this vehicle with a deductible feature of $250.00. Claimant is limited to recover the amount of her insurance deductible feature.

Claimant contends that respondent knew or should have known that this hole existed and taken timely remedial actions to repair it and that it’s failure to do so created a hazardous condition to the traveling public.

Respondent did not present any testimony or evidence in this claim.

It is a well established principle that the State is neither an insurer nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 811 (W.Va.1947). To hold respondent liable, claimant must establish by a preponderance of the evidence that respondent had actual or constructive notice of the road defect in question and a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).

In the present claim, the evidence established that this portion of Route 161 presented a hazard to the traveling public. The size of this hole, its location in the middle of the road, and the fact that this occurred in the late summer leads the Court to conclude that respondent should have known of this hole and that it had adequate time to take corrective action. Thus, the Court finds respondent negligent in this claim and claimant may make a recovery for the damage to her vehicle. Accordingly, the Court makes an award to claimant in the amount of $250.00.

Award of $250.00.