
    
      Opinion issued July 19, 1976
    
    KAREN HUTCHENS vs. DEPARTMENT OF HIGHWAYS
    (No. CC-76-5)
    
      Nancy Norman, Attorney at Law, for the respondent.
   WALLACE, JUDGE:

On November 11, 1975 the claimant, Karen Hutchens, was driving her automobile on Pennsylvania Avenue in the City of Charleston, West Virginia near the city garage. It was approximately 7:00 p.m., the street lights were on.

She testified it was the period of day between, dusk and dark; that her lights were on and she was driving about 40 mph talking with her passengers. There was no oncoming traffic. The claimant was traveling in the left lane of the two lane avenue when she suddenly came upon an object in the road. She swerved to the right in an effort to miss it, but it struck the left rear wheel bending the rim out of shape and damaging the tire.

One of the passengers took over the driving and proceeded to find a gas station to fix the tire. They stopped at the city garage for help but tools there were not small enough to fit an automobile. The incident was reported to the city garage dispatcher. Neither the claimant nor her passengers knew what was struck until a maintenance man from the garage came in and reported that he had replaced a manhole cover.

There is no evidence in the record to show that the respondent had knowledge that the manhole cover was in the street. The city employees were notified and they corrected the situation. The well established law in West Virginia is that the State is not an insurer of its highways and the user thereof travels at his own risk. In order for the respondent to be liable in this case there must be proof that the negligence of the State caused the damage. There was no such proof.

The Court finds the respondent free of negligence and disallows the claim.

Claim disallowed.  