
    
      OPINION ISSUED DECEMBER 17, 1993
    
    PATRICK MICHAEL BILLIPS AND PATRICIA BILLIPS VS. DIVISION OF HIGHWAYS
    (CC-92-350)
    Claimant Patrick Michael Billips appeared in person.
    Glen A. Murphy, Attorney at Law, for respondent.
   PER CURIAM:

Claimant, Patrick Michael Billips and Patricia Billips, residents of Delbarton, Mingo County, brought this action in the amount of $500.00, the deductible of their automobile insurance, as their automobile was totaled in an accident on W. S. Route 52, near Nolan, West Virginia.

The evidence adduced at the hearing established that claimant was driving his 1982 Toyota Célica on January 21,1992, at approximately 3:15 p.m., proceeding south on U. S. Route 52, when his automobile went over gravel on the highway. Claimant lost control and the automobile swerved into an oncoming vehicle. Claimants’ automobile was totaled in this accident.

William Thompson, driver of the oncoming vehicle, testified that he was proceeding south on U. S. Route 52. He stated that he observed claimant lose control of his vehicle and saw the vehicle coming toward him. He further stated that he had not seen any gravel on the surface of the road prior to coming upon claimant or at the scene of the accident.

Charles E. Curry, a truck driver for the respondent in Mingo County, testified that respondent’s employees were performing work on the berm of the road by placing gravel in the berm. He had driven through this section of U. S. Route 52 at approximately 3:00 p.m. when the employees had completed their project for this day. He did not recall any foreign matter in the curve at that time.

After reviewing the evidence in this claim, this Court has determined that claimant has failed to establish negligence on the part of the respondent. The State is neither an insurer nor a guarantor of the safety of persons traveling on its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). For respondent to be held liable for damages caused by a defect of this sort, it must have had either actual or constructive notice of the condition on the road and a reasonable amount of time to take suitable corrective action. As the claimant has not met this burden of proof, the claimant has not established negligence on the part of the respondent.

In accordance with the findings of fact and conclusions of law as stated herein above, this Court is of the opinion to and does deny this claim.

Claim disallowed.  