
    
      Opinion issued November 9, 1981
    
    RONALD P. STEWART vs. DEPARTMENT OF HIGHWAYS
    (CC-81-65)
    Claimant appeared in person.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   GARDEN, JUDGE:

After nightfall on February 9, 1981, the claimant was operating his automobile in a westerly direction on Route 91 in the Village of Bethlehem in Ohio County, West Virginia, when both of his right wheels struck a large pothole on the right-hand side of the west lane of travel. According to the testimony, the hole was almost unobservable because of the configuration of the road at that particular point.

The claimant’s testimony indicated that the hole was at least two feet in diameter and at least two feet deep. He stated that he was unaware of its existence and did not see the hole until the impact. The claimant further testified that he was travelling at a speed of 25 miles per hour in a 30-mile-per-hour speed zone. As a result of this incident, damages in a total amount of $259.76 were inflicted upon claimant’s car.

William B. Leasure, a police officer employed by the Village of Bethlehem, testified on behalf of the claimant. He indicated that he was on duty on the evening of the accident and was following the claimant on Route 91. Officer Leasure confirmed the fact that the claimant was not exceeding the speed limit. He also confirmed the fact that it was almost impossible to detect the presence of the hole before striking it. Officer Lea-sure testified that the hole had been in existence for at least three weeks prior to February 9, 1981, and that he and the Mayor of the Village of Bethlehem had struck the hole on several occasions. He further testified that numerous complaints had been telephoned, including one of his own, to the respondent, but to no avail.

This Court has consistently held that the respondent is not an insurer of the safety of persons using the highways of this State. However, where it has been demonstrated that the respondent had actual knowledge of a dangerous defect in a highway and took no action to remedy the defect, an award has been made. The evidence in this claim clearly demonstrates that the respondent had notice of the defect and negligently failed to repair it. For that reason, an award of $259.76 is made in favor of the claimant.

Award of $259.76.  