
    
      OPINION ISSUED OCTOBER 4, 1985
    
    UNITED STATES FIDELITY AND GUARANTY COMPANY, AS SUBROGEE OF CHALMER HARLESS VS. DEPARTMENT OF HIGHWAYS
    (CC-84-337)
    K. Paul Davis, Attorney at Law, for claimant.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

On October 17, 1984, at about 10:00 p.m., a son was driving the 1980 Oldsmobile Cutlass of Chalmer Harless on Route 60/2 near St. Albans in Kanawha County, West Virginia. The driver observed a "Road Narrow" sign. The vehicle struck a rock in the road and incurred damages in the amount of $2,819.52.

The driver testified that he did not see the rock before hitting it. He had travelled the same route earlier that day. He thought he had observed the rock, but could not be sure, and he had no personal knowledge of how long it had been in existence. Susan Cress, a neighbor, testified that she had observed the rock prior to the accident, but she had not notified the respondent.

The State is neither an insurer nor a guarantor of the safety of persons travelling on its highways. Adkins vs. Sims, 130 W.Va. 645 (1947) . For the State to be found liable, it must first have had either actual or constructive notice of the defect in the roadway. Since there was no proof in this case that the State had notice of the defect, the claim must be denied.

Claim disallowed.  