
    
      OPINION ISSUED FEBRUARY 7, 1997
    
    MR. AND MRS. JULIUS L. GALLOWAY, SR. VS. DIVISION OF HIGHWAYS
    (CC-94-103)
    Claimant represents self.
    Andrew F. Tarr, Attorney at Law, for respondent.
   PER CURIAM:

Claimant, Virginia Galloway, seeks an award of $454.00 from respondent, Division of Highways, for property damage arising from two separate incidents in which her car struck a break in the road and a hole.

From the evidence presented at the hearing on June 8,1994, the claimant stated that she was uncertain of the date of the first incident, but had it occurred in January or February of 1994. At the time of the first incident, the claimant was driving her vehicle, a 1986 Chrysler New Yorker, east on U.S. Route 60 in the general vicinity of Montgomery, Kanawha County, at approximately 7:00 p.m. The claimant stated she was driving between 35 and 40 miles per hour when her automobile struck a break in the road. The break in the road was across the entire right lane, however, she was unable to see it until she was right up on it. The claimant travels this road weekly, and she speculated the break was a recent development. She also stated that there was nothing she could do to avoid the break, and upon impact the tire treads were broken in both front tires and the rack and pinion steering unit was damaged.

The claimant also testified that the second incident occurred at approximately 5:00 p.m. on February 27, 1994, while she was traveling east on Interstate 64, in the aforementioned vehicle. She stated that just before crossing the St. Albans Bridge she was traveling between 45 to 50 m.p.h. and her automobile struck a hole which broke both rear shocks. At the time of the incident, there was a sign warning traffic to slow down to 45 miles per hour. However, the claimant testified she was unable to see or avoid the hole before her automobile struck it. She also indicated that she had not traveled this road for about a year.

The claimant stated she did not inform the respondent of either of these incidents. The only insurance carried on the claimant’s car was liability insurance. The claimant produced receipts for two tires, two shocks, and the installation of the rack and pinion steering unit. No receipts were offered for the price of the rack and pinion steering unit or the installation of the shocks.

The Court having reviewed the evidence in this claim and the fact that respondent presented no witnesses, has determined that respondent was negligent its maintenance of U.S. Route 60 at this is a heavily traveled highway. The defect described by the claimant could not have occurred overnight. Therefore, the Court is the opinion that respondent had constructive, if not actual, notice of the defect. As to the incident which occurred on Interstate 64, the Court has determined that claimant was negligent in failing to take heed after having observed a warning sign placed by the respondent. Thus, the claim is denied.

The claimant established damages in the amount of $216.99 for the first incident for which the Court makes an award.

Award of $216.99.  