Young v. Department of Highways

13 Ct. Cl. 41

• Court: West Virginia Court of Claims
• Decided: September 20, 1979
• Docket: CC-78-274
• Status: Published

Opinion

WALLACE, JUDGE:

The claimant, Harold Young, filed this claim against the respondent in the amount of $203.50 for damages to his 1977 Monte Carlo automobile.

On October 15, 1978, the claimant was driving in his automobile from Clendenin to Nitro, West Virginia, on Route 119 at approximately 8:30 p.m. It was dark and it had been raining. Traffic was heavy.

The claimant testified that he travelled Route 119 about once every two weeks and was aware that the road was under construction. As he approached the area of Mink Shoals Hill, he was proceeding at approximately 30 mph behind a tractor trailer truck. The truck struck some steel plates placed in the road due to the construction. The claimant stated that a plate corner “flipped up” and he swerved to miss it. The right front and right rear wheels of his automobile struck a hole on the. right edge of the blacktop surface of the road next to the berm causing damage to the wheels and rims of the automobile.

Without a positive showing of negligence on the part of the respondent, this case is governed by the well settled principle of Adkins v. Sims, 130 W. Va. 645, 46 S.E. 2d 81 (1947), cited in Parsons v. State Road Comm’n., 8 Ct. Cl. 35, that the State is not a guarantor of the safety of travelers and the user of the highway travels at his own risk. The duty of the State in the maintenance of highways is one of reasonable care and diligence under all circumstances. See McFann v. Dept. of Highways, 13 Ct. Cl. 33 (1979); Childers v. Dept. of Highways, 12 Ct. Cl. 346 (1979).

There is nothing in the record by which actual negligence on the part of the resondent can be established, Therefore, the Court is of the opinion to and does hereby disallow the claim.

Claim disallowed.