
    
      Opinion issued September 20, 1979
    
    CHARLES E. PRIESTLEY, JR. and PENNY A. PRIESTLEY vs. DEPARTMENT OF HIGHWAYS
    (CC-79-34)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

The claimants, Charles E. Priestley, Jr. and Penny A. Priestley, filed this claim in the amount of $207.86 against the respondent for damages to their 1977 Monte Carlo automobile which occurred on January 1, 1979, at approximately 6:30-7:00 p.m. The scene of the accident was Big Tyler Road in Cross Lanes, West Virginia. It was dark, and it was raining. The claimant, Penny A. Priestley, while driving the automobile, struck a hole in her lane of traffic about ten inches from the right berm. During her testimony, she stated that she travelled this road about once every two weeks and that she had seen holes in the pavement on previous occasions.

The law of West Virginia is well establishing that 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, 46 S.E.2d 81 (1947). “As the State is not an insurer of the safety of those travelling on the public roads, anyone injured or who sustains damage must prove that the State has been negligent in order to render the State liable.” Hanson v. State Road Comm’n., 8 Ct. Cl. 100 (1970). The existence of a defect in the road does not establish negligence per se. Bodo v. Dept. of Highways, 11 Ct. Cl. 179 (1977); Light v. Dept. of Highways, 12 Ct. Cl. 61 (1977).

The record does not establish negligence on the part of the respondent, and, accordingly, the Court disallows the claim.

Claim disallowed.  