Whitmore v. Department of Highways

13 Ct. Cl. 304

• Court: West Virginia Court of Claims
• Decided: November 10, 1980
• Docket: CC-80-181
• Status: Published

Opinion

WALLACE, JUDGE:

At 2:45 p.m. on March 6, 1980, claimant was operating his 1972 Chevrolet van on 5th Street Hill in Huntington, West Virginia, a road which is owned and maintained by the respondent. According to the claimant’s testimony, there was a pothole on the right-hand side of his lane of travel. The van struck the hole, went out of control, and overturned. Introduced into evidence was an estimate from Larry Lite of Galigher Ford, Inc., which indicated that the value of the van on the day of the accident was $1,600.00. Claimant sold the salvage for $300.00, leaving a net loss of $1,300.00.

The State is neither an insurer nor a guarantor of the safety of motorists travelling upon its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). Furthermore, in the instant case, claimant stated that he was familiar with not only the road in question, but the pothole itself: “I knew it was there because I’d hit it before.” To operate a motor vehicle in the face of visible hazards, such as defects in the road, of which a driver is aware, is to assume a known risk. This bars recovery. Swartzmiller v. Dept. of Highways, 10 Ct.Cl. 29 (1973). Accordingly, this claim must be denied.

Claim disallowed.