
    
      OPINION ISSUED AUGUST 8, 1988
    
    CONNIE J. McDOWELL vs. DEPARTMENT OF HIGHWAYS
    (CC-87-242)
    
      Claimant appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

On August 17,1987, claimant was operating her 1987 Dodge Shadow on 1-77, near Pocatalico in Kanawha County, in the southbound lanes, at approximately 7:30 a.m. The left lane was closed to the travelling public. Claimant's vehicle struck a hole located in the left lane and extending approximately one foot into the right lane. Claimant seeks $226.47 for damages to the automobile's left front tire and strut.

Claimant testified that respondent had been working on this portion of 1-77 highway during the summer of 1987. There were barrels located at the areas where respondent was working, but not at the particular location of the accident. She had travelled this route several weeks prior to the incident. The construction workers had been moving from section to section on the highway while working during the summer months of 1987.

Herbert C. Boggs, Interstate Maintenance Assistant for respondent, testified that he was aware of work being bone on August 17, 1987. West Virginia Paving was the contractor for the work being performed. Respondent had inspectors at the job site who were responsible for seeing that proper traffic control was maintained and barriers were erected. If barrels are missing, it is the inspector's duty to see that the contractor replaces them.

It is the opinion of the Court that there was a breach of duty owed to the travelling public by respondent to oversee proper safety controls on a project. However, the claimant was travelling on the interstate highway during the daylight hours. She also was in a position to observe the cut areas of the highway. The Court is of the opinion that the claimant was also negligent, and her negligence was equal to or greater than that of the respondent. The Court therefore denies the claim based upon the comparative negligence of the claimant.

Claim disallowed.  