
    
      OPINION ISSUED MAY 12, 1987
    
    ROBERT KEVIN GILLISPIE AND CAROLYN KAY GILLISPIE VS. DEPARTMENT OF HIGHWAYS
    (CC-86-140)
    Claimants appeared in person.
    Andrew Lopez, Attorney at Law, for respondent.
   PER CURIAM:

On February 18, 1986, at approximately 11:15 a.m. claimant Robert K. Gillispie was operating his Chevy S-10 pickup truck on Cow Creek Road, Putnam County, when his vehicle struck a pothole. The claimants seek $10,000.00 for damages to the vehicle and for physical injuries to Carolyn Kay Gillispie. The Court, on its own motion, amended the style of the claim to reflect the proper party respondent, the Department of Highways. Claimants have received $6,700.00 from their insurance carrier. The insurance policy has a $500.00 deductible. Claimants incurred $605.29 in medical bills for physical injuries sustained by claimant Carolyn Kay Gillispie.

Claimant Robert Gillispie was travelling on Cow Creek Road to pick up his cousin. He was proceeding at approximately 25 mph. It was sunny, but the road was wet due to a previous snowfall. He was accompanied in the vehicle by his wife, Carolyn Kay Gillispie.

Claimant Robert Gillispie testified that at the time of the accident his vehicle had just rounded a curve. The hole was filled with water, and when his vehicle struck the hole, it went into a small skid, landed in a ditch and tipped over. The road is wide enough for two cars to pass.

Homer Gillispie, father of Robert Gillispie, testified that he visited the scene of the accident approximately 20 minutes after it occurred. He stated that the hole was "approximately 16 to 18 inches across and

the opposite way it was close to 5 feet across." He also indicated that the hole was from 16 to 18 inches deep.

Claimant Carolyn Kay Gillispie testified that she was with her husband on the day of this incident. As a result of the accident, she sustained injuries to her back, and was treated by Dr. Curry on February 18, 1986. Dr. Curry prescribed pain pills. Subsequently, she was examined by another doctor who also checked her back on two occasions. She stated that she still experiences back pain.

Joseph Gillispie, cousin of claimant Robert Gillispie, testified that the hole had been present for over a month. He had not notified the respondent of the presence of the hole.

Zenith Porter, an employee of respondent, testified that Cow Creek Road has a Route 40 designation. Porter worked at the Hurricane Substation at the time of this accident, where he took complaints about this road. Mr. Porter stated that prior to February 18, 1986, he had not received any complaints. He said that, "We was just coming out of a snow storm," and there was a truck dispatched down in that area to plow the roads. He also stated that the truck drivers report hazards either by telephone or in person when they return to the substation.

While the State does not insure the safety of travellers on its highways, respondent does owe a duty of reasonable care and diligence in the maintenance of the highways. Although there was no direct evidence that the respondent had actual notice of the evidence of this defect, the Court is of the opinion that it did have constructive notice. The size of the pothole is indicative of its presence for some time prior to the date of this incident. See: Stone vs. Dept. of Highways, 12 Ct.Cl. 259 (1979) and Miller vs. Dept. of Highways, CC-85-12 (1985). The Court hereby makes an award to claimant Robert Gillispie in the amount of $500.00 for the deductible and $1,200.00 to Carolyn K. Gillispie for her physical injuries.

Award of $500.00 to Robert Kevin Gillispie.

ward of $1,200.00 to Carolyn Kay Gillispie.  