
    
      Opinion issued October 31, 1984
    
    JAMES D. KITTLE vs. DEPARTMENT OF HIGHWAYS
    (CC-84-36)
    Claimant appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

Claimant is the owner of a 1976 Chevrolet Impala. On September 21, 1983, at approximately 11:30 p.m., as he was travelling southbound, the vehicle was damaged in an accident on W. Va. Route 2, north of Follansbee, Brooks County, West Virginia. At that time, construction work was being performed on Route 2. Claimant stated that he was aware of the construction work because he drove Route 2 daily to his job. Barrels had been placed along the dividing line in the road. The accident occurred when claimant struck the first barrel, which had tipped into the road. He was travelling at approximately 35 m.p.h. when he hit the barrel. He lost control of the vehicle and struck the second barrel which was ten to twelve feet away. The vehicle then veered sharply to the left across the northbound lane and struck a concrete barrier almost head-on. Claimant testified that he could not see the barrel because it was dirty and the area was very dark. He estimated the damage at $1,200.00 to $1,300.00. The vehicle was purchased in 1981 for $1,300.00, although claimant estimated its current value at $2,500.00 based upon prices for comparable cars listed in a newspaper.

The State is neither an insurer nor a guarantor of the safety of motorists traveling on its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for the respondent to be found liable for the damage, notice of the condition must be established. Gordon S. Peake, respondent’s area engineer, testified that there had been no report of a barrel in the traffic lane prior to. claimant’s accident. He stated that he ordered new lights placed on the barrels on September 13, 1983, and also that the barrels be cleaned. He thought new barrels were placed instead of cleaning the old ones between September 13 and September 21. Mr. Peake added that the barrels were usually moved from the dividing line in the evenings, but the Court does not find that this is such an act of negligence as to hold respondent liable for the damage to claimant’s vehicle. Since there was no evidence of notice presented, the Court is of the opinion to, and does, disallow the claim.

Claim disallowed.  