
    
      Opinion issued November 28, 1979
    
    IRVING ROBINSON vs. DEPARTMENT OF HIGHWAYS
    (CC-79-31)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   GARDEN, JUDGE:

On December 25, 1978, the claimant’s car, a 1978 Chrysler Cordoba, was being operated by his son, Casey J. Robinson, in a northerly direction on Campbell’s Creek Drive in Kanawha County, West Virginia. The incident hereinafter described occurred shortly after midnight. The weather conditions were bad and the road was icy, according to the claimant’s son, because of drainage problems in the area. Campbell’s Creek Drive in the vicinity of the accident is a narrow two-lane road of concrete construction.

Claimant’s son testified that he was driving at a speed of 15 or 20 miles per hour when the right front and rear wheels of the automobile struck a pothole which he did not observe until he struck it, partly because the hole was filled with water. His testimony also established that the pothole extended from the berm on the east side of the road to at least 24 inches into the roadway, and was at least 6 to 8 inches in depth. He further testified that he was unaware of the presence of the pothole, not having used this particular road for a period of four or five months before the accident. Several companions of claimant’s son, who were passengers in the car, corroborated his testimony in all material respects. Gloria Sue Ramsey testified that, while she did not witness the subject accident, she lived within four or five miles of the scene of the accident and was aware that the pothole had been in existence for a couple of months prior to the accident. Ms. Ramsey gained this knowledge as a result of going to and from school on a daily basis over this period of time. She added that she had never reported to the respondent the existence of the subject pothole.

The respondent is not an insurer of the safety of motorists using the highways of this State, and since the claimant has failed to establish that the respondent had knowledge (either actual or constructive) of the existence of this pothole, the claimant’s claim for damages in the amount of $211.28 must be denied.

Claim disallowed.  