
    
      OPINION ISSUED JANUARY 21, 1994
    
    JOHN P. GRIMMETT, II VS. DIVISION OF HIGHWAYS
    (CC-93-1)
    Claimant present in person.
    George Joseph and Nancy Kwan McCoy, Attorneys at Law, for respondent.
   PER CURIAM:

Claimant, JohnP. Grimmett, II, seeks an award of $558.85 from respondent, Division of Highways, for property damage sustained while driving his vehicle on December 16,1992, on U. S. 250 in Fairmont, Marion County.

From the evidence adduced at the hearing on October 18, 1993, it appears that between 10:00 and 10:30 p.m., the claimant was driving his vehicle, a 1990 Honda Accord EX, south on U. S. 250, leaving Fairmont, at a normal rate of speed when his vehicle struck a hole in the surface of the road approximately 10 to 12 inches deep. It was dark and rainy and the claimant did not see the hole in the surface of the road until his vehicle struck it. As a result of the incident, both of the passenger side tires were flattened and the rims were bent. The claimant incurred unreimbursed damages of $558.85; however, the claimant does carry automobile insurance with a deductible of $500.00. The amount claimed based upon the deductible is $500.00. He stated that he travels this road approximately once or twice a month and that there are no signs warning of defects in the surface of the road.

James Costello, Marion County supervisor for the respondent, testified that he could have possibly had notice of the particular hole in the surface of the road, but that in the winter time it may not have been corrected in a timely manner because it would be considered a lower priority. However, he admitted that this road is one of the more heavily traveled roads in Marion County.

This Court finds, after reviewing the evidence, that the claimant has proven negligence on the part of the respondent by a preponderance of the evidence. The claimant established that this road is heavily traveled, that the hole was within a mile of the respondent’s headquarters, and that the respondent had actual or constructive notice of the defective condition. Respondent failed to establish that it had no actual or constructive notice of the defective condition.

Accordingly, the Court makes an award to claimant in the amount of $500.00.

Award of $500.00.  