
    
      OPINION ISSUED JANUARY 21, 1994
    
    RICHARD L. THOMPSON VS. DIVISION OF HIGHWAYS
    (CC-93-181)
    Claimant appeared in his own behalf.
    Nancy K. McCoy, Attorney at Law, for respondent.
   PER CURIAM:

Claimant brought this action to recover damages to his vehicle when it struck a hole in County Route 27 in Marion County. Claimant was driving his vehicle and his wife and young daughters were passengers. They were proceeding from the Middletown Mall to their home in Worthington when they decided to go to a Dairy Mart. Claimant then proceeded on Everson Road, which is also known as County Route 27, when the incident occurred. Claimant alleges damages to his vehicle in the amount of $311.18.

The evidence adduced at the hearing on October 19,1993, established that claimant was operating his 1988 Toyota Cressida on May 29, 1993, on County Route 27 when he drove around a curve and came upon a vehicle approaching in the opposite lane. Claimant drove his vehicle to the right side of his lane of travel to avoid the approaching vehicle. The right rear tire of his vehicle then went into a hole on the paved portion of the road which extended into the berm. The hole was approximately five to seven inches deep. The car sustained damages which required claimant to purchase a new wheel and to have the vehicle realigned.

Dwayne Miller, maintenance assistance with the respondent in Marion County, testified that the first notification or complaint that respondent had concerning this particular hole on County Route 27, was received from the claimant after the incident herein. Respondent had a small paving machine performing work on County Route 27 but not in the area of claimant’s accident.

The Court, having considered the evidence in this claim, is of the opinion that claimant may recover for the damages to his vehicle. There were no warning signs to alert claimant to this defect in County Route 27. A hole in the pavement which is five to seven inches deep would not have developed overnight. Therefore, the Court is of the opinion that respondent had constructive notice of the hole. Claimant was required to drive to the right side of the road by the oncoming vehicle. This constitutes an emergency situation, and the Court has held in prior decisions that the edge of the road and the berm should be maintained in a proper manner for use by the traveling public under circumstances such as these.

In view of the foregoing, the Court makes an award to the claimant in the amount of $311.18.

Award of $311.18.  