
    
      Opinion issued October 23, 1978
    
    WILLIAM L. HANSON, SR. AND WILLIAM L. HANSON, JR. vs. DEPARTMENT OF HIGHWAYS
    (No. CC-78-82)
    
      William L. Hanson, Sr., and William L. Hanson, Jr., the claimants, in person.
    
      Nancy J. Aliff, Attorney at Law, for the respondent.
   RULEY, JUDGE:

On March 16, 1978, the claimant, William L. Hanson, Jr., was driving south on Route 119 at Elkview when an accident occurred which damaged the automobile owned by the claimant, William L. Hanson, Sr., in the amount of $1,000.00. The claimants allege that the accident was caused by potholes in the road and seek damages from the respondent.

The simple existence of a pothole in the road does not make the State negligent per se. For the State to be found negligent, it must have had actual or constructive notice of the particular road defect which allegedly caused the accident and must have unreasonably allowed that defect to continue to exist. Davis v. Department of Highways, 12 Ct. Cl. 31 (1977). The record in this case contains no evidence of any notice to respondent or failure to act on respondent’s part. Thus, respondent cannot be found negligent. Recognizing that the State is neither an insurer nor guarantor of the safety of persons travel-ling on its highways (Adkins v. Sims, 130 W.Va. 645 [1947] ), and that, therefore, no award can be made without proof of negligence, the Court must deny this claim.

Claim disallowed.  