
    
      Opinion issued August 1, 1984
    
    DAVID BOBENHAUSEN vs. DEPARTMENT OF HIGHWAYS
    (CC-84-94)
    Claimant appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

Claimant seeks $94.60 for damages sustained by his 1978 Volkswagen Rabbit which struck rocks in the roadway. The incident occurred on January 26, 1984, at approximately 6:00 a.m., on Route 39 near Swiss, Nicholas County, West Virginia. The right front tire and wheel were replaced following the accident. Claimant testified that the rocks appeared to have fallen within several hours of his striking them. Ernest Eugene Stewart, general maintenance foreman in Nicholas County, testified that there were no complaints of rock falls in the vicinity of the accident on the date in question.

The State is neither an insurer nor a guarantor of the safety of persons travelling on its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). For the State to be found liable, it must first have had either actual or constructive notice of the defect in the roadway. As there was no such proof in this case, the claim must be denied.

Claim disallowed.  