
    
      Opinion issued November 9, 1981
    
    DONALD E. PLATT AND LINDA L. PLATT vs. DEPARTMENT OF HIGHWAYS
    (CC-81-101)
    Claimant Linda L. Platt appeared in person.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   GARDEN, JUDGE:

In the early evening of March 23, 1981, the claimants were travelling down Van Voorhis Road in Morgantown, West Virginia, a road maintained by the respondent, in their 1975 Volkswagen Rabbit. They had lived in the area for about ten months and both were thoroughly familiar with this section of Van Voorhis Road, travelling it daily to and from work. The road at the point of the accident is two-laned.

Mrs. Platt testified that she and her husband were aware of the existence of three rather large potholes in a row on the right-hand side of their lane of travel, the same having been in existence for two or three weeks prior to the accident. As they approached these holes at a speed of 25 to 30 miles per hour, they observed three vehicles approaching from the opposite direction. With a very narrow berm to their right, they were prevented from taking any evasive action, although Mrs. Platt stated that her husband was “gearing down” in order to reduce his speed. The right rear wheel of their car struck the middle pothole, ruining the tire and rim, and knocking the car out of alignment. In addition to the cost of repairs, Mr. Platt, a salesman, missed two and a half days of work due to lack of transportation. Mrs. Platt testified that neither she nor her husband had ever called the respondent’s headquarters to complain about these potholes.

Proof of actual or constructive notice is a prerequisite of establishing negligence on the part of the respondent. Davis v. Department of Highways, 12 Ct.Cl. 31 (1977); Cummings v. Department of Highways, 12 Ct.Cl. 59 (1977). Such proof cannot be found in the record in this claim. The case of Adkins v. Sims, 131 W.Va. 645, 46 S.E.2d 81 (1947), clearly holds that the State is neither an insurer nor a guarantor of the safety of motorists using its highways. For these reasons, this claim must be denied.

Claim disallowed.  