
    
      Opinion issued January 9, 1979
    
    JAMES R. BANHART vs. DEPARTMENT OF HIGHWAYS
    (No. CC-78-119)
    Claimant appeared in person.
    
      Henry Haslebacher, Attorney at Law, for respondent.
   WALLACE, JUDGE:

On May 9, 1978, at approximately 7:30 a.m., the claimant was operating his 1978 Chevrolet half-ton truck at a speed of about 25 miles per hour in an easterly direction on State Route 61 in Handley, West Virginia. The weather conditions were clear, but it had been raining during the night. The road at the point of the accident is a two-laned highway of blacktop construction. The claimant testified that he was aware of potholes in the eastbound lane and had consequently pulled left of center or into the westbound traffic, but an approaching motorist caused him to return to the eastbound lane. There, he struck a water-filled pothole, which, in his opinion, was about nine inches deep. As a result, the claimant sustained damages to his truck amounting to $190.76.

The respondent called as a witness on its behalf Jerry Easter, who testified that he was employed by the respondent as a maintenance foreman working out of Marmet, and that he was very familiar with the existence of the potholes to which the claimant had referred. While Mr. Easter could not be specific as to dates, he did indicate that employees of respondent had attempted, on several occassions, to repair these holes through the use of both hot mix and cold mix. He explained that the City of Handley was having a drainage problem, and that as a result, water would accumulate and stand on Route 61. Easter explained that this would cause both hot or cold mix to wash out and thus re-create the former pothole.

The Court is of the opinion that the claimant has failed to establish negligence on the part of the respondent. Respondent is not an insurer of those using the highways of this State, but is under a duty only to use reasonable care to keep the highways in a reasonably safe condition. The Court is of the opinion that the respondent has discharged this duty in this particular case. For the reasons assigned, this claim is disallowed.

Claim disallowed.  