
    
      OPINION ISSUED FEBRUARY 22, 1991
    
    E. SHAWN LINGER VS. DIVISION OF HIGHWAYS
    (CC-90-187)
    Claimant represents self.
    James D. Terry, Attorney at Law, for respondent.
   PER CURIAM:

On April 3, 1990, claimant was operating his 1987 Dodge Shadow on West Virginia State Route 19/24. This route connects the exit ramp on 1-79 and West Virginia State Route 119. Claimant's vehicle struck a hole as he was driving from Route 19/24 onto Route 119 proceeding toward Star City in Monongalia County, West Virginia. His vehicle sustained damage to both of the left tires for which claimant alleges a loss of $198.24.

Claimant testified that he had not driven in this area for a number of months. There were several holes on the right side of the connecting area from Route 19/24 to Route 119. The holes were approximately seven inches wide and four to five inches deep. He was traveling at approximately forty miles per hour. There was a steady rain at the time of this incident which occurred at approximately 3:00 to 3:30 p.m. He was proceeding through a "yield sign" at the intersection.

Gary Leary, assistant superintendent for respondent in Monongalia County testified that he travels this area every day. The holes occur were the concrete surface of Route 19/24 and the black-top surface of Route 119 intersect. Respondent's records reflect that cold mix was placed in the holes on March 23, 1990.

The Court is of the opinion that claimant has failed to establish constructive or actual notice on the part of the respondent. The State is neither an insurer nor a guarantor of the safety of persons traveling on its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). The respondent maintained the road by placing cold mix in the holes. This method of repair is temporary in nature, but it is the only remedy available to respondent during the winter months. Therefore, the Court is of the opinion to and does deny this claim.

Claim disallowed.  