
    
      OPINION ISSUED DECEMBER 19, 1990
    
    RODNEY SHAWN JOHNSON VS. DIVISION OF HIGHWAYS
    (CC-90-170)
    Claimant appeared in his own behalf.
    James D. Terry, Attorney at Law, for respondent.
   PER CURIAM:

Claimant was involved in a single vehicle accident on February 16, 1990, on Madison Creek Road in Cabell County, West Virginia. He was driving his 1989 B2600 Mazda pick-up truck proceeding north when the vehicle went into a hole on the right side of the road. His vehicle overturned into Madison Creek. Claimant sustained personal injuries and loss of wages. The vehicle, which was totaled, was covered by his insurance company. Claimant's medical expenses were also paid for him by his insurance. The Court has reviewed the record in this claim and has made the following findings of fact and conclusions of law.

Findings of Fact

Madison Creek Road is a narrow, paved, two-lane road which is owned and maintained by respondent.

This road had a significant but unmarked break in the pavement.

Claimant was unfamiliar with this section of Madison Creek Road.

When claimant's vehicle struck the break in the pavement, he lost control of his vehicle and went over the embankment. Claimant sustained personal injuries as a result of the incident.

The accident occurred between 7:30 and 8:00 p.m. at which time it was "pretty much dark", according to the claimant.

There were no warning signs at the break of the pavement.

Although respondent contends that it did not have notice of the defect on Madison Creek Road until four days after claimant's accident, respondent's employees passed the break in the pavement in the course of salting operations during the winter months.

The evidence established that the break in the pavement had existed for an appreciable time prior to this incident.

Conclusions of Law

Road. Respondent had constructive notice of the break in the pavement on Madison Creek

There were no warning signs placed at the break in the pavement to afford the traveling public an opportunity to avoid the hazard.

Respondent, having had constructive notice of the defect on Madison Creek Road, was negligent in its maintenance of the road and this negligence was the proximate cause of claimant's accident.

Claimant was not negligent in the operation of his vehicle.

Claimant's damages for work loss are in the amount of $1,615.36.

Claimant sustained personal injuries for which he seeks compensation for pain and suffering in the amount of $1,384.64.

In view of the foregoing, the Court makes an award to claimant in the amount of $3,000.00.

Award of $3,000.00.  