
    
      Opinion issued December 3, 1980
    
    MARK ALLEN HICKS vs. DEPARTMENT OF HIGHWAYS
    (CC-80-190)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   GARDEN, JUDGE:

On March 31,1980, at about 9:00 p.m., the claimant was operating his 1973 Javelin automobile on Route 17 at High Truck Bypass in Stollings, Logan County, West Virginia, when he struck a rather large pothole, resulting in damages to his car in a total repairable amount of $333.94. He testified that he had no previous knowledge of the existence of the pothole and that he did not observe it prior to the accident because it was filled with water. No testimony was presented that respondent know or should have known of the existence of this particular pothole.

This Court has consistently held that the respondent is not an insurer of the safety of motorists using its highways and that before an award can be made in cases such as this, proof, either actual or constructive, that the respondent was aware of a defective condition must be presented. Davis v. Dept. of Highways, 12 Ct.Cl. 31 (1977); Hoskins v. Dept. of Highways, 12 Ct.Cl. 60 (1977).

By reason of the foregoing, this claim is disallowed.

Claim disallowed.  