
    
      Opinion issued November 19, 1979
    
    FRANKLIN D. ROWE vs. DEPARTMENT OF HIGHWAYS
    (CC-78-288)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   RULEY, JUDGE:

On the evening of November 17, 1978, the claimant’s daughter, Lisa J. Rowe, was driving his 1978 Fiat automobile on Norway Avenue in Huntington, West Virginia. She was proceeding from her home on Arlington Boulevard to pick up pizza for the family dinner that evening. Upon reaching the intersection of Arlington Boulevard and Norway Avenue, she turned onto Norway Avenue and shortly thereafter, as she proceeded uphill and into a curve, she struck a large pothole, and as a result, ruptured both the right front and right rear tires of the automobile and damaged both rims.

The claimant testified that, upon being called by his daughter, he proceeded to the scene of the accident and examined the pothole and found that it was about two feet in diameter and over a foot deep. The claimant’s daughter testified that she was driving at a slow speed, was unaware of the pothole, and did not see the same before the accident. Claimant testified that his damages totaled $188.74, which consisted of the cost of two new tires, two new tubes, and two new rims. He further indicated that he was not seeking recovery for the cost of realigning the car or a towing charge that was incurred.

The claimant called William E. Wetherholt as a witness on his behalf. Wetherholt testified that he lived at 827 Norway Avenue, and that the subject pothole was right in front of his home; that he was well aware of the existence of the hole, having struck it on several occasions; and that starting in July of 1978 and up to the date of the subject accident, he had personally made 15 to 20 phone calls to respondent’s headquarters in Barboursville complaining of the pothole and requesting that it be repaired. Respondent called no witnesses in defense of this claim.

The record certainly reflects, by a preponderance of the evidence, that respondent had actual notice of the existence of this pothole. The failure of respondent to remedy this defect in Norway Avenue constitutes negligence, and we thus make an award in favor of claimant in the amount of $188.74.

Award of $188.74.  