
    OPINION ISSUED DECEMBER 12, 1986
    KAREN COLEMAN VS. DEPARTMENT OF HIGHWAYS
    (CC-86-94)
    Claimant appeared in person.
    Andrew Lopez, Attorney at Law, for respondent.
   PER CURIAM:

On February 18, 1986, at approximately 8:15 a.m., the claimant was operating her 1982 Chevrolet Cavalier in a westerly direction on Route 60 below Campbells Creek, Kanawha County, when her vehicle struck a pothole. The claimant originally filed this action with the West Virginia Court of Claims as the respondent. The Court, upon Ms. Coleman's agreement, amended the style of the claim designating the Department of Highways as the proper respondent. Two tires and a hubcap were damaged in the amount of $214.47. The claimant was unable to estimate the size of the pothole. She stated that she was not aware of the pothole prior to striking it, even though she travelled this route five days a week. The claimant testified that the traffic was heavy as it was the morning rush hour. She was proceeding in the right or slow lane. Her vehicle struck the hole with the left front and rear tires. She was travelling between 35 and 40 miles per hour. There was no way of dodging the hole "because any way you moved there was pothole."

The State is neither an insurer nor a guarantor of the safety of motorists on the highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for the respondent to be found liable for the damages incurred, proof of notice, either actual or constructive, of the defect in question must be shown. As there was no such evidence presented, the claim must be denied.

Claim disallowed.  