
    
      OPINION ISSUED DECEMBER 12, 2008
    
    JOGINDER NATH VS. DIVISION OF HIGHWAYS
    (CC-08-0232)
    Claimant appeared pro se.
    
    Andrew F. Tarr, Attorney at Law, for respondent.
   PER CURIAM:

Claimant brought this action for vehicle damage which occurred when his 1994 Subaru Legacy struck a hole on Chestnut Ridge Road near its intersection with Irwin Street in Morgantown, Monongalia County. Chestnut Ridge Road, which is designated as County Route 61, is a road maintained by respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.

The incident giving rise to this claim occurred at approximately 4:00 p.m. on May 8, 2008. County Route 61 is a two-lane road with center lines and no edge lines. At the time of the incident, claimant was driving at the intersection of Irwin Street and County Route 61. As he was driving on County Route 61 at approximately twenty-five miles per hour, his vehicle struck a hole that was approximately three feet long, two feet wide, and eighteen inches deep. Claimant stated that he does not travel on this road on a regular basis, and he did not see the hole before his vehicle struck it. Claimant’s vehicle sustained damage to its tire in the amount of $76.27. The amount of claimant’s insurance deductible is $500.00.

The position of the respondent is that it did not have actual or constructive notice of the condition on County Route 61 near the intersection with Irwin Street. Kathy Westbrook, Highway Administrator for respondent in Monongalia County, testified that the hole was filled with hot mix the day after the incident occurred. She observed the hole and testified that it was approximately one foot and a half wide and six to eight inches deep. She was unaware of what caused the hole to form in this particular area.

The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986).

In the instant case, the Court is of the opinion that respondent had, at the least, constructive notice of the hole which claimant’s vehicle struck and that the hole presented a hazard to the traveling public. The size of the hole and its location lead the Court to conclude that respondent had notice of this hazardous condition. Thus, the Court finds respondent negligent and claimant may make a recovery for the damage to his vehicle.

In accordance with the findings of fact and conclusions of law stated herein above, the Court is of the opinion to and does make an award to the claimant in the amount of $76.27.

Award of $76.27.  