
    
      Opinion issued February 14, 1980
    
    GARY HALL vs. DEPARTMENT OF HIGHWAYS
    (CC-79-40)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

The claimant seeks compensation in the amount of $230.00 for damage to a 1977 Oldsmobile Cutlass automobile resulting from an accident which occurred at approximately 9:30 p.m. on January 11, 1979. Claimant was driving from a grocery store to his home on Mays Branch Road in Wayne County, West Virginia, when one of the back wheels struck a pothole, throwing the rear end of the automobile to the left and forcing it to collide with a parked car. Mr. Hall testified that he was familiar with the roadway, traveling over it two or three times a day, and that the hole which was struck was about two feet wide and one foot deep.

The State is neither an insurer nor a guarantor of the safety of persons traveling on its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for negligence on the part of the Department of Highways to be shown, proof that the respondent had actual or constructive notice of the defect in the road is required. Davis Auto Parts v. Department of Highways, 12 Ct.Cl. 31 (1977); Lowe v. Department of Highways, 8 Ct.Cl. 210 (1971); Varner v. Department of Highways, 8 Ct.Cl. 119 (1970). There is no evidence in the record of any notice to the respondent, and the simple existence of a defect in the road does not establish negligence per se. See Bodo v. Department of Highways, 11 Ct.Cl. 179 (1977), and Rice v. Department of Highways, 12 Ct.Cl. 12 (1977). This claim must be denied.

Claim disallowed.  