Thomas v. Department of Highways

West Virginia Court of Claims

Thomas v. Department of Highways

13 Ct. Cl. 301

CourtWest Virginia Court of Claims

DecidedNovember 10, 1980

DocketCC-80-179

StatusPublished

This text of 13 Ct. Cl. 301 (Thomas 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.

Bluebook

Thomas v. Department of Highways, 13 Ct. Cl. 301 (W. Va. Super. Ct. 1980).

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Opinion

GARDEN, JUDGE:

The claimant’s 1979 tow truck was damaged when he struck a pothole on Route 52 in Williamson, West Virginia, in September of 1979. After striking the pothole, the truck struck a stone wall located immediately to the right-hand side of Route 52, causing damages to the truck in excess of $700.00. Claimant testified that he [302]*302had known of the existence of this hole, but did not see it prior to impact because it was filled with water.

Some confusion is apparent from the record. The claim was filed on April 11, 1980, and the claimant, while testifying that the incident occurred in September of 1979, was unable to state the exact date. A witness, Albert Hall, testified that he was a passenger in the truck and that the hole had been in existence since December (presumably, December of 1978).

The law is well settled in West Virginia that the respondent is not an insurer of motorists using its highways, and, absent a showing that respondent knew or should have known of the existence of the subject defect in the highway, there can be no recovery.

Claim disallowed.

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GARDEN, JUDGE:

The claimant’s 1979 tow truck was damaged when he struck a pothole on Route 52 in Williamson, West Virginia, in September of 1979. After striking the pothole, the truck struck a stone wall located immediately to the right-hand side of Route 52, causing damages to the truck in excess of $700.00. Claimant testified that he [302]*302had known of the existence of this hole, but did not see it prior to impact because it was filled with water.

Some confusion is apparent from the record. The claim was filed on April 11, 1980, and the claimant, while testifying that the incident occurred in September of 1979, was unable to state the exact date. A witness, Albert Hall, testified that he was a passenger in the truck and that the hole had been in existence since December (presumably, December of 1978).

The law is well settled in West Virginia that the respondent is not an insurer of motorists using its highways, and, absent a showing that respondent knew or should have known of the existence of the subject defect in the highway, there can be no recovery.

Claim disallowed.

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Bluebook (online)

13 Ct. Cl. 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-department-of-highways-wvctcl-1980.