
    
      OPINION ISSUED FEBRUARY 19, 1986
    
    FRANK SPENCE AND MARGARET E. SPENCE VS. DEPARTMENT OF HIGHWAYS
    (CC-85-224)
    Claimants appeared in person.
    Andrew Lopez, Attorney at Law, for respondent.
   PER CURIAM:

On May 26, 1985, claimant Frank Spence was operating his 1981 Plymouth Horizon on U.S. 52 in a southerly direction toward Crum, when he hit a pothole. Claimant, Frank Spence, originally filed the claim in his own name; however the record reflects that his wife, Margaret Spence, is also a titled owner of the vehicle. The Court, on its own Motion, amended the style of the claim to include Margaret Spence as a party claimant. The vehicle was damaged in the amount of $552.40. After claimant Frank Spence introduced evidence of damages in the aforementioned amount, the Court amended the amount of the original claim to reflect that amount. Claimant Frank Spence testified that he did not see the pothole until he hit it. Although he travelled that route frequently, he had not observed the pothole prior to this accident. Claimant Frank Spence knew of no complaints to respondent about the pothole prior to this incident.

The State is neither an insurer nor a guarantor of the safety of persons travelling on its highways. Adkins vs. Sims, 130 W.Va. 645 (1947). For the State to be found liable, it must first have had either actual or constructive notice of the defect in the roadway. Since there was no proof in this case that the State had such notice of the defect, the claim must be denied.

Claim disallowed.  