Vilain v. Department of Highways

West Virginia Court of Claims

Vilain v. Department of Highways

13 Ct. Cl. 330

CourtWest Virginia Court of Claims

DecidedDecember 23, 1980

DocketCC-80-123

StatusPublished

This text of 13 Ct. Cl. 330 (Vilain 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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Vilain v. Department of Highways, 13 Ct. Cl. 330 (W. Va. Super. Ct. 1980).

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Opinion

WALLACE, JUDGE:

On May 14, 1979, between 1:00 p.m. and 3:00 p.m. the claimant was operating his 1979 GMC four-wheel drive vehicle in an easterly direction on Rutledge Road in- Kanawha County, West Virginia. The weather was clear and dry. While traveling from Campbell’s Creek to Route 114, he struck a large pothole resulting in damages to his vehicle in the amount of $97.85. Claimant testified that he had no previous knowledge of the existence of the pothole and that he did not see it prior to the accident. The last time he had traveled the road was three to five months prior to the accident.

There was no evidence introduced which would establish that the respondent knew or should have known of the existence of this particular pothole.

The law in West Virginia is well established that the State is not an insurer of the safety of motorists using its highways. Adkins v. Simms, 130 W.Va. 645, 46 S.E.2d 81 (1947). Before an award can be made in cases such as this, proof, either actual or constructive, that the respondent was aware of the defective condition, must be presented. Davis v. Dept. of Highways, 12 Ct.Cl. 31 (1977); Hoskins v. Dept. of Highways, 12 Ct.Cl. 60 (1977); Hicks v. Dept. of Highways, 13 Ct.Cl. 310 (1980). As there was no such evidence presented in this case, the claim must be denied.

Claim disallowed.

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WALLACE, JUDGE:

On May 14, 1979, between 1:00 p.m. and 3:00 p.m. the claimant was operating his 1979 GMC four-wheel drive vehicle in an easterly direction on Rutledge Road in- Kanawha County, West Virginia. The weather was clear and dry. While traveling from Campbell’s Creek to Route 114, he struck a large pothole resulting in damages to his vehicle in the amount of $97.85. Claimant testified that he had no previous knowledge of the existence of the pothole and that he did not see it prior to the accident. The last time he had traveled the road was three to five months prior to the accident.

There was no evidence introduced which would establish that the respondent knew or should have known of the existence of this particular pothole.

The law in West Virginia is well established that the State is not an insurer of the safety of motorists using its highways. Adkins v. Simms, 130 W.Va. 645, 46 S.E.2d 81 (1947). Before an award can be made in cases such as this, proof, either actual or constructive, that the respondent was aware of the defective condition, must be presented. Davis v. Dept. of Highways, 12 Ct.Cl. 31 (1977); Hoskins v. Dept. of Highways, 12 Ct.Cl. 60 (1977); Hicks v. Dept. of Highways, 13 Ct.Cl. 310 (1980). As there was no such evidence presented in this case, the claim must be denied.

Claim disallowed.

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13 Ct. Cl. 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vilain-v-department-of-highways-wvctcl-1980.

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