
    
      Opinion issued August 1, 1984
    
    RICHARD A. SMOOT vs. DEPARTMENT OF HIGHWAYS
    (CC-84-13)
    Claimant appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

Claimant seeks $26.87 for the replacement of a tire on his 1979 Subaru Brat which was damaged when he struck a pothole on U.S. Route 60 near Campbell’s Creek, West Virginia. The incident occurred on November 24, 1983, at approximately 7:00 p.m. Claimant described the hole as being approximately 16 inches long, 28 inches wide, and eight inches deep when he viewed what he thought was the hole a week after the incident. Claimant testified that he did not see the pothole prior to striking it, but stated he was aware of holes in that area.

The State is neither an insurer nor a guarantor of the safety of motorists on its highways. Adkins vs. Sims, 130 W. Va. 645, 46 S.E.2d 81 (1947). In order for the respondent to be found liable for the damages, it must have had actual or constructive knowledge of the defect in question. While there was no evidence of actual notice, a hole of the dimensions described by claimant could not have developed overnight, and respondent is therefore charged with constructive knowledge of the hole. However, claimant, with his prior knowledge of the condition of the road, was likewise negligent, and the Court finds that this negligence was equal to or greater than respondent’s. The Court must, therefore, deny the claim.

Claim disallowed.  