
    
      Opinion issued December 23, 1980
    
    GARY VILAIN vs. DEPARTMENT OF HIGHWAYS
    (CC-80-123)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

On May 14, 1979, between 1:00 p.m. and 3:00 p.m. the claimant was operating his 1979 GMC four-wheel drive vehicle in an easterly direction on Rutledge Road in- Kanawha County, West Virginia. The weather was clear and dry. While traveling from Campbell’s Creek to Route 114, he struck a large pothole resulting in damages to his vehicle in the amount of $97.85. Claimant testified that he had no previous knowledge of the existence of the pothole and that he did not see it prior to the accident. The last time he had traveled the road was three to five months prior to the accident.

There was no evidence introduced which would establish that the respondent knew or should have known of the existence of this particular pothole.

The law in West Virginia is well established that the State is not an insurer of the safety of motorists using its highways. Adkins v. Simms, 130 W.Va. 645, 46 S.E.2d 81 (1947). Before an award can be made in cases such as this, proof, either actual or constructive, that the respondent was aware of the defective condition, must be presented. Davis v. Dept. of Highways, 12 Ct.Cl. 31 (1977); Hoskins v. Dept. of Highways, 12 Ct.Cl. 60 (1977); Hicks v. Dept. of Highways, 13 Ct.Cl. 310 (1980). As there was no such evidence presented in this case, the claim must be denied.

Claim disallowed.  