
    
      OPINION ISSUED SEPTEMBER 29, 1998
    
    
      LEE EDWARD WOLFE VS. DIVISION OF HIGHWAYS
    (CC-97-99)
    Claimant represents self.
    Andrew F. Tarr, Attorney at Law, for the respondent.
   PER CURIAM:

The claimant brought this action for damage to his 1988 Dodge Lancer, which occurred when the vehicle encountered rough rocks on a road maintained by the respondent in Webster County.

The incident giving rise to this claim occurred on May 21, 1996. The claimant’s wife was driving on County Route 26/1 (Bergoo Road) when the vehicle encountered an area where the road had washed out. The vehicle struck one or more large rocks placed in the road by the respondent for purposes of rebuilding the road. The vehicle sustained a broken oil pan, but no engine damage. The claimant submitted into evidence a repair bill in the amount of $76.85. The claimant had a $250.00 insurance deductible.

Route 26/1 in this area is a second priority road in terms of maintenance priority. The evidence adduced at hearing established that the area along the upper Elk River had experienced severe flooding during the winter of 1996, resulting in a washout of the road in several areas. The respondent had been repairing the road in several places with river rock to stabilize it prior to applying crushed aggregate.

It is well established that the respondent is neither an insurer nor a guarantor of the safety of motorists upon its roads and highways. Adkins vs. Sims, 46 S.E.2d 81 (W.Va. 1947). The Court is of the opinion that the respondent was working diligently in the course of repairing the road in question and that there is insufficient evidence of negligence upon which to base an award. Therefore, in view of the foregoing, the Court does hereby deny the claim.

Claim disallowed.  