Wheeler v. Division of Highways

27 Ct. Cl. 145

• Court: West Virginia Court of Claims
• Decided: October 6, 2008
• Docket: CC-08-0004
• Status: Published

Opinion

PER CURIAM:

Claimant brought this action for vehicle damage which occurred when her 2002 Ford Focus struck a hole while she was traveling on Six Mile Road near Madison, Boone County. The Court is of the opinion to deny the claim for the reasons more fully stated below.

The incident giving rise to this claim occurred at approximately 3:00 p.m. on December 16, 2007. Six Mile Road is a narrow, two-lane, paved road with a posted speed limit of forty-five miles per hour. At the time of the incident, claimant was traveling west on Six Mile Road from Route 17 to Corridor G. Claimant testified that she was driving at approximately forty miles per hour when her vehicle struck a hole that was approximately one foot and a half wide, one foot long, and three inches deep. There were no other vehicles traveling in the same direction or coming from the opposite direction. She stated that she had not traveled on this road for about six months to a year before this incident occurred. As a result, claimant’s vehicle sustained damage to its tire and rim in the amount of $315.09.

The position of the respondent is that it did not have actual or constructive notice of the condition on Six Mile Road at the site of claimant’s accident for the date in question. Mr. Stefen White, Equipment Operator II for respondent in Boone County, testified that Six Mile Road is a second priority road in terms of its maintenance. Prior to the incident, respondent did not have any complaints regarding the hole on Six Mile Road.

The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645; 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman v. Dep’t. of Highways, 16 Ct. Cl. 103 (1986).

In the instant case, the Court is of the opinion that respondent did not have actual or constructive notice of the hole on Six Mile Road. While the Court finds that claimant’s vehicle struck a hole on Six Mile Road on the day in question, that fact alone is insufficient to establish negligence on the part of respondent. Respondent did not receive any complaints about the condition on Six Mile Road before this incident occurred. Although the Court is sympathetic to the claimant’s plight, the Court does not find any negligence on the part of respondent upon which to justify an award.

In view of the foregoing, the Court is of the opinion to and does deny this claim.

Claim disallowed.