
    
      Opinion issued June 24, 1983
    
    ROY FRANKLIN WILLIAMS, JR., and BEVERLY WILLIAMS vs. DEPARTMENT OF HIGHWAYS
    (CC-83-117)
    Claimant appeared in person.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

This claim was originally filed in the name of Roy Franklin Williams, Jr., but when the testimony disclosed that the damaged automobile, a 1982 Toyota Tercel, was titled in the joint names of claimant and his wife, Beverly Williams, the Court on its own motion joined Beverly Williams as an additional claimant.

On January 23, 1983, claimant was driving south on Route 622 near Cross Lanes, Kanawha County, West Virginia. It was about 9:00 p.m., and it was dark and raining. The car struck a pothole which was located approximately a foot and a half over from the edge of the berm. The right front and rear tires had to be replaced at a cost of $85.54. Claimant had no knowledge of how long the pothole had been in existence.

The State is neither an insurer nor a guarantor of the safety of travellers on its highways. Adkins v. 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 notice of the defect, the claim must be denied.

Claim disallowed.  