
    
      OPINION ISSUED AUGUST 8, 1988
    
    ORVILLE GLEN LUSK VS. DEPARTMENT OF HIGHWAYS
    (CC-88-58)
    
      Claimant appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

On January 30, 1988, claimant's daughter, Marsha Lusk, was operating her father's vehicle, a 1983 Ford EXP, on Route 99 in Bolt, West Virginia. The vehicle struck loose cinders located on the roadway and extending into the berm, and entered a pothole. The vehicle was totalled, and claimant seeks $3,000.00.

Marsha Lusk testified that she was travelling between 40 and 45 miles per hour. It was 8:30 p.m., and "hazy". She was proceeding from Oceana to Beckley, and was accompanied by two of her friends. As she started around a curve, the automobile struck loose cinders, and • entered a pothole. She lost control of the vehicle. The vehicle landed on its side between a tree and a fence post. She had driven this route the week before this incident, but she had not noticed the problem then.

Deputy Sheriff Eric Rogers testified he had investigated the accident. He observed cinders and salt on the roadway. He stated that it was normal snow removal material. It was foggy, the road surface was wet, and ice had formed over the hole. The accident vehicle travelled, from the time it left the roadway, between 120 and 125 feet.

Mr. Dale R. Wooten, foreman at the Bolt Outpost for respondent, testified that he was familiar with the location of the accident. The records indicate that this area was treated with normal ice removal treatment on January 28, 1988.

The claimant's daughter was operating the vehicle at 40-45 miles per hour, an excessive rate of speed for the conditions then and there existing. Negligence on respondent's part, therefore, has not been shown. 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.  