
    
      Opinion issued September 20, 1979
    
    DOUGLAS W. MORRIS vs. DEPARTMENT OF HIGHWAYS
    (CC-79-45)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

On Monday, January 22, 1979, the claimant was operating his 1978 Ford Fiesta automobile in an easterly direction on U.S. Route 60. He was proceeding from his home in St. Albans, West Virginia, and was approaching what would be the westerly corporate limits of South Charleston, West Virginia. He was proceeding at a speed of 30 to 35 miles per hour in the left-hand lane of the two lanes reserved for eastbound traffic when his left rear wheel struck a pothole located about two feet south of the medial strip in his lane of traffic. As a result, the sidewall of the tire was ruptured, and evidence was introduced that the cost of a new tire would amount to $52.36.

The claimant testified that the accident occurred about 7:10 a.m., and that he did not see the pothole because at that hour it was dark and some two or three inches of snow covered the roadway, including the offending pothole. Mr. Morris further testified that while he travelled this particular road frequently in going to work, he did not know of the existence of this pothole. He indicated that he had not travelled this roadway since the preceeding Tuesday, having been confined to his home as a result of the flu, inferring at least that the pothole had appeared during that six-day period.

We find no evidence in the record which, in our opinion, brands the claimant as being guilty of contributory negligence. At the same time, we find no evidence that the respondent knew or should have known of the existence of this pothole. The respondent is not an insurer of users of its highways and is charged only with the duty to use reasonable care and diligence in the maintenance of its highways. Parsons vs. State Road Comm’n., 8 Ct. Cl. 35 (1969). The mere existence of a pothole in a road, without more, is not sufficient to impose liability upon the respondent.

As a result of the foregoing, this claim is denied.

Claim disallowed.  