
    
      Opinion issued June 4, 1980
    
    ROBERT D. CLINE vs. DEPARTMENT OF HIGHWAYS
    (CC-79-548)
    
      Douglas Hamilton, Attorney at Law, for the respondent.
   GARDEN, JUDGE:

On August 27,1979, at about 9:30 p.m., the claimant, his wife, and their daughter and son were proceeding in a westerly direction on Route 10 between Oceana and Mann, West Virginia. Mr. Cline was driving his car, his wife was in the front seat, and the children were seated in the rear of the car. Mr. Cline was traveling at a speed of 50-55 miles per hour on this two-lane asphalt highway when the right wheels of the car struck a pothole. As a result, both tires on the right side of the car were ruptured, and the wheels were bent. An estimate of repairs from Southern Tire Sales Company in Mann in the amount of $289.24 was introduced into evidence.

The claimant did not appear, and his wife was the only witness who testified on his behalf. She stated that she was not aware of the existence of the pothole, and that she first saw it as the right wheels of the car struck it. She explained that it was located at the top of an incline in the road and that, as a result, it could not be seen by a motorist unless he were practically on top of it.

Mrs. Cline had no personal knowledge concerning the size of the pothole, how long it had been in existence, or whether the respondent had knowledge of its existence. She attempted to develop these essential elements of the claim through hearsay evidence, but upon objection by counsel for respondent, the same was not admitted into evidence.

On many occasions, this Court has held that the State is not an insurer of motorists using its highways; a listing of citations to our former decisions is unnecessary. There being no evidence in the record to establish notice to the respondent, either actual or constructive, of the existence of this pothole, which is necessary to establish a failure on the part of the respondent to exercise reasonable care in maintaining the road, this Court must refuse to make an award.

Claim disallowed.  