
    
      Opinion issued September 23, 1982
    
    DAVID E. UTT vs. DEPARTMENT OF HIGHWAYS
    (CC-82-115)
    Claimant appeared in person.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

On the evening of April 4, 1982, claimant was operating his 1982 Oldsmobile Toronado easterly on State Route 22 (also known as Cove Road) in Weirton, West Virginia, a road owned and maintained by the respondent. As the claimant was turning onto Harmon Creek Road, a two-lane secondary road, the right front wheel of his automobile struck a pothole, damaging the hubcap and rim in the amount of $142.00.

According to the claimant’s testimony, he had been travelling at a speed of 25 mph and was familiar with the road in question. On prior occasions, he had observed the pothole, but made no complaints to the Department of Highways.

It is well established law in West Virginia that the State cannot and does not guarantee the safety of motorists upon its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). To be held liable, the respondent must have had either actual or constructive notice of the hazardous condition of the highway. No such evidence of notice was presented in this case; therefore, the respondent cannot be held negligent, and the Court must disallow the claim.

Claim disallowed.  