
    
      OPINION ISSUED DECEMBER 22, 2009
    
    ROBERT C. WRIGHT AND KIMBERLY S. WRIGHT V. DIVISION OF HIGHWAYS
    (CC-08-0243)
    Claimants appeared pro se.
    
    Andrew F. Tarr, Attorney at Law, for Respondent.
   PER CURIAM:

Claimants brought this action for vehicle damage which occurred when their 2007 Chevrolet Cobalt struck a rock that was embedded in Narrow Gauge Road, designated as County Route 3/19, in Wood County. County Route 3/19 is a public road maintained by respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.

The incident giving rise to this claim occurred at approximately 1:00 p.m. on April 24,2008. County Route 3/19 is a narrow, one-lane dirt road. At the time of the incident, Mr. Wright was driving and Ms. Wright was a passenger in the vehicle. As they were traveling to the cemetery at less than ten miles per hour, their vehicle struck a rock that was embedded in the road. Mr. Wright testified that he is familiar with this road, but he usually drives on it with his truck. Mr. Wright contends that respondent should have graded the road. As a result of this incident, claimants’ vehicle sustained damage to its oil pan in the amount of $529.76. Since claimants’ insurance deductible was $500.00 at the time of this incident, their recovery is limited to that amount.

The position of the respondent is that it did not have actual or constructive notice of the condition on County Route 3/19. The respondent did not present a witness at the hearing.

The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986).

In the instant case, the Court is of the opinion that respondent had, at the least, constructive notice of the rock that was embedded in the road which claimants’ vehicle struck and that the rock presented a hazard to the traveling public. Thus, the Court finds respondent negligent and claimants may make a recovery for the damage to their vehicle.

In accordance with the findings of fact and conclusions of law stated herein above, the Court is of the opinion to and does malee an award to the claimants in the amount of $500.00.

Award of $500.00.  