
    
      Opinion issued October 17, 1977
    
    GREGORY D. LAVINDER vs. DEPARTMENT OF HIGHWAYS
    (No. CC-77-19)
    Claimant appeared in person.
    
      Nancy Norman, Attorney at Law, for respondent.
   WALLACE, JUDGE:

On February 14, 1977, at approximately 9:25 p.m., the claimant, Gregory D. Lavinder, was driving his 1976 Ford Granada automobile in a westerly direction along Midland Drive, or Local Service Route 60/12, in the town of Rand in Kanawha County, West Virginia. Route 60/12 is a two-lane asphalt road maintained by the respondent. The claimant testified that he was driving at approximately 30 mph. It was dark and raining, and visibility was poor. This automobile struck a water-filled hole on the right-hand side of the highway. The right front wheel struck first and was undamaged. The rim of the right rear wheel was bent, and it was later determined that the tire was ruined. The claimant testified that after the accident, he drove his automobile into his driveway, which was approximately 500 to 600 feet from the scene of the accident. He stated that, although the accident occurred near his home, he rode to work with another person and had never noticed the hole before. He also stated that the road was in such bad shape he couldn’t pinpoint any particular hole. Although an apparent defect existed in the road, there is no showing that the respondent had knowledge of the hole, or, if it did, that the hole was of such magnitude as to put respondent on notice of the possibility of an accident.

The law of West Virginia is well established that the State is not a guarantor of the safety of travelers on its roads. Parsons v. State Road Commission, 8 Ct. Cl. 35. The case of Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81, holds that:

“Every user of the highways travels at his own risk. The State does not, and cannot, assure him a safe journey. The maintenance of highways is a governmental function and funds available for road improvements are necessarily limited.”

In the opinion of the Court, the claimant has not proved such a positive neglect of duty on the part of the respondent as would impose a moral obligation on the State to pay the claimant’s damages.

Accordingly, the Court is of the opinion to and does disallow the claim.

Claim disallowed.  