
    
      Opinion issued July 19, 1976
    
    NANCY C. JETER vs. DEPARTMENT OF HIGHWAYS
    (No. CC-76-20)
    
      Nancy Norman, Attorney at Law, for the respondent.
   WALLACE, JUDGE:

The claimant testified that her fiance was driving her automobile west on MacCorkle Avenue in the City of Charleston, West Virginia about 10:00 p.m. on January 30, 1976; that he had slowed down to approximately 20 mph preparatory to making a left hand turn. She further testified that the driver swerved to miss a hole in the pavement but failed and the impact knocked off a hubcap which in turn damaged the fender. She stated that they went back to the scene of the accident a week later to take a picture of the hole but it had been filled. The claimant did not see the hole but testified to what the driver had told her. The driver did not testify.

The claims investigator for the Department of Highways, Jerry Walker, testified that there was no physical evidence of the patching of holes at the alleged scene of the accident.

The law is well established in West Virginia that the State is not an insurer of the safety of a traveler on the highway. Anyone who sustains damages must prove that the negligence of the State caused the damage complained of in order for the State to be liable. There is nothing in the record to show that the respondent had notice of any dangerous condition in the highway nor was there any proof of negligence on the part of the respondent. In the absence of this, the user of the highway travels at his own risk.

The Court is of the opinion that the evidence does not establish actionable negligence on the part of the respondent and therefore disallows the claim.

Claim disallowed.  