
    
      OPINION ISSUED FEBRUARY 12, 1997
    
    FRANK PENDRY VS. DIVISION OF HIGHWAYS
    (CC-96-473)
    Claimant represents self.
    Cynthia A. Majestro, Attorney at Law, for respondent.
   PER CURIAM:

The claimant, Frank Pendry, seeks an award of $133.68 from the respondent, Division of Highways, for damage to his vehicle. The damage occurred on September 3, 1996, at 9:40 a.m., while the claimant was driving on Route 10 near Oceana, Wyoming County. During the drive, the claimant was traveling twenty-five miler per hour when his vehicle dropped off the pavement surface and struck a large hole. The hole was located adjacent to the pavement surface, and it was approximately twenty-two inches deep. According to the claimant, he drove of the road to avoid a tractor-trailer truck in the opposite lane.

As a result of the accident, a tire and rim on the vehicle were damaged. The estimated-cost to replace the tire and rim was $133.68; however, the claimant testified that the actual cost to replace the tire and rim was $52.00.

Route 10 is a top priority two-lane asphalt road which is approximately twenty-two feet wide. Stacy Stewart testified that he lives near Route 10 where the claimant’s accident occurred, and that he informed the respondent about the hole during January 1996.

David Cox, an assistant supervisor for the respondent in Wyoming County, testified that he did not remember the precise date when he was notified about the hole, but he was certain that he was not informed about the hole prior to May 1996.

In West Virginia, the respondent has a duty to maintain road berms in a reasonably safe condition for use when the occasion requires, and liability may ensue when a motorist is forced onto the berm in an emergency or otherwise necessarily uses the berm of the highway. Sweda vs. Dept. of Highways, 13 Ct. Cl. 249 (1980).

The facts giving rise to this claim indicated that an unsafe condition existed along the pavement surface of Route 10. Moreover, this Court finds that the respondent had notice of the unsafe condition and a reasonable opportunity to correct the condition prior to the claimant’s accident. Based on these reasons, the Court finds that the claimant has established liability on behalf of the respondent for the damage to. his vehicle.

Accordingly, the Court makes an award to the claimant in the amount of $52.00.

Award of $52.00.  