
    
      Opinion issued December 17, 1984
    
    KEITH B. SAYRE vs. DEPARTMENT OF HIGHWAYS
    (CC-84-174)
    Claimant appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

On April 28, 1984, at approximately 12:10 p.m., the claimant was operating his 1981 Audi Coupe automobile in a westerly direction on 7th Avenue in North Charleston, West Virginia, when he struck a pothole in the road which was estimated to be 18 inches long by 12 inches wide and 8-10 inches deep. As a result of the accident, claimant incurred expenses of $660.07. His insurance covered all but a $200 deductible, the amount of claimant’s actual out-of-pocket loss.

The claimant testified at the hearing that the weather was clear and that he was travelling about twenty feet behind a truck. The truck swerved suddenly, and claimant’s car struck the pothole.

It is well established that the State is not an insurer nor guarantor of the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). There was no evidence introduced showing that the respondent had actual notice of any hazardous road condition; however, a pothole of this size cannot have developed overnight, and the respondent is charged with constructive notice of the defect. The Court finds, however, that the claimant was travelling too close to the vehicle in front of him, and did not allow himself sufficient time to see and avoid the pothole. This negligence was equal to or greater than respondent’s, and under the doctrine of comparative negligence, the claim is denied. Hull v. Dept. of Highways, 13 Ct.Cl. 408 (1981).

Claim disallowed.  