
    
      OPINION ISSUED OCTOBER 10, 1996
    
    GREGORY A. AND LISA EDENS VS. DIVISION OF HIGHWAYS
    (CC-96-87)
    Claimant represents self.
    Andrew F. Tarr, Attorney at Law, for respondent.
   PER CURIAM:

The claimants, Gregory A. Edens and Lisa Edens, seek an award of $612.12 from the respondent, Division of Highways, for damage to their 1995 Oldsmobile Cutlass Supreme. The damage occurred on February 11, 1996, at approximately 12:00 midnight, while Ms. Edens was driving on Route 28 near Sissonville in Kanawha County. Driving conditions were dark and foggy, and Ms. Edens was traveling between fifteen and twenty miles per hour. Ms. Edens testified that as she proceeded around a curve, the vehicle unexpectedly struck a large hole located in the middle of the road. According to Ms. Edens, the hole was one foot deep, eighteen inches wide, and three foot long.

As a result of the collision, the claimants’ vehicle sustained damage to the alignment and the driver’s side tire and wheel. Several receipts were admitted into evidence which established that the total cost to repair the vehicle was $612.12.

Paul Lyttle, a road maintenance supervisor for the respondent testified that his responsibilities included general road maintenance in the vicinity of the accident. Mr. Lyttle described Route 28 as a second priority road, and he stated that the respondent did not have notice that the hole had developed in the roadway.

While the respondent is not an insurer of the safety of motorists traveling upon its roads, it does owe motorists a duty of reasonable care and diligence in maintaining its roads. To establish liability against the respondent, the claimant must prove the respondent had actual and constructive notice of the road defect and failed to repair it in a timely manner.

The evidence in this claim does not establish that the respondent had actual notice of the hole. Nevertheless, the size of the hole is indicative of the fact that the hole had been in existence for an extended period of time prior to Ms. Eden’s accident. Therefore, the Court makes an award to the claimant in the amount of $6112.12.

Award of $612.12.  