
    
      OPINION ISSUED OCTOBER 10, 2007
    
    JOHN W. MORROW and DEVONNA MORROW VS. DIVISION OF HIGHWAYS
    (CC-06-096)
    Claimants appeared pro se.
    
    
      Jason C. Workman, Attorney at Law, for respondent.
   PER CURIAM:

Claimants brought this action for vehicle damage which occurred when their 2004 Dodge Stratus struck a hole while they were traveling on Route 41 in Lewis County. Route 41 is a road maintained by respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.

The incident giving rise to this claim occurred at approximately 9:30 a.m. on March 27, 2006. Route 41 is a two-lane highway at the area of the incident involved in this claim. Claimant John Morrow testified that he was driving on Route 41 when his vehicle struck a hole in the road that he had not seen. He stated that the hole was approximately one foot wide and eight to ten inches deep. Claimants’ vehicle struck the hole sustaining damage to both passenger side rims and tires totaling $601.70. Claimants’ insurance deductible was $500.00.

The position of the respondent is that it did not have actual or constructive notice of the condition on Route 41 at the site of the claimant’s accident for the date in question. Respondent did not present any witnesses or evidence at the hearing of this matter.

The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).

In the instant case, the Court is of the opinion that respondent had at least constructive notice of the hole which claimants ’ vehicle struck and that the hole presented a hazard to the traveling public. The size of the hole and the time of the year in which claimants’ incident occurred leads the Court to conclude that respondent had notice of this hazardous condition and respondent had an adequate amount of time to take corrective action. Thus, the Court finds respondent negligent and claimants may make a recovery for the damage to their vehicle.

In accordance with the findings of fact and conclusions of law stated herein above, the Court is of the opinion to and does make an award to the claimants in this claim in the amount of $500.00.

Award of $500.00.  