
    
      OPINION ISSUED DECEMBER 3, 1987
    
    LESTER B. ALLEN AND THELMA M. ALLEN VS. DEPARTMENT OF HIGHWAYS
    (CC-87-83)
    Claimants appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

On February 26, 1987, the claimants were travelling in their 1985 Delta 88 Oldsmobile on Route 103 when the vehicle struck holes in the road. They seek $106.18 for damages to the vehicle.

Claimant Lester B. Allen testified that he and his wife live in Gary, Mcdowell County, West Virginia. At the time of this incident, they were returning to their home by means of Elkhorn Mountain. It is a two-land, blacktop road, and Mr. Allen was operating his vehicle at approximately 25-30 miles her hour. It had rained heavily and water was standing in the road. As a result, he was unable to see the holes. The impact of the holes with the automobile cause damage to the automobile's tire and rim. He driver this route twice a week, and he was aware of the existence of the holes before the accident. He does not recall whether he complained to respondent about these specific holes.

Proof of actual or constructive notice is a prerequisite to establishing negligence on the part of the respondent. David Auto Parts vs. Dept. of Highways, 12 Ct.Cl. 31 (1977). Respondent did not have notice of these particular holes in the road in time to take action to prevent this accident. Since negligence, therefore, is not shown, and since the State is neither an insurer nor a guarantor of the safety of motorists on its highways Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947), this claim must be denied.

Claim disallowed.  