
    
      OPINION ISSUED DECEMBER 22, 2009
    
    
      LARRY J. BOUGHNER AND BRENDA L. BOUGHNER V. DIVISION OF HIGHWAYS
    (CC-08-0121)
    Claimants appeared pro se.
    
    Andrew F. Tarr, Attorney at Law, for Respondent.
   PER CURIAM:

Claimants brought this action for vehicle damage which occurred when their 2002 Pontiac Grand Prix struck a hole while claimant Brenda L. Boughner was driving on State Route 31, approximately two miles from Williamstown, in Wood County. State Route 31 is a public road maintained by respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.

The incident giving rise to this claim occurred at approximately 6:45 p.m. on March 12,2008. State Route 31 is a paved, two-lane road with a center line and edge lines. The speed limit is fifty-five miles per hour. Ms. Boughner testified that at the time of the incident she was driving at less than fifty-five miles per hour, traveling from her home to church. Ms. Boughner stated that there was a truck traveling around a curve from the opposite direction that was over the center line and which protruded onto her lane of travel. When she maneuvered her vehicle to the right to provide space between her vehicle and the truck, her vehicle struck the hole. The hole was approximately twelve inches long, twelve inches wide, and it extended inside the road’s white edge line. Ms. Boughner stated that she first noticed the hole at least two weeks prior to this incident but did not report the hole’s existence to respondent before her vehicle struck it. After the incident, she reported the hole to the Williamstown 911 and to the respondent. As a result of the incident, claimants’ vehicle sustained damage to its tire ($55.77), rim ($254.13), and the tires needed to be re-aligned ($42.39), totaling $352.29. Claimants’ insurance deductible at the time of the incident was $500.00.

The position of the respondent is that it did not have actual or constructive notice of the condition on State Route 31. Steve Carson, Highway Administrator for respondent in Wood County, testified that he is familiar with State Route 31 and stated that it is a high priority road in terms of its maintenance. He testified that State Route 31 is a curvy road that is approximately twenty feet wide. Although Mr. Carson was the Parkersburg Interstate Supervisor at the time of this incident, he currently is responsible for maintaining respondent’s records in Wood County. According to respondent’s records, respondent did not receive complaints regarding the condition of the road prior to the date of this incident. Respondent’s DOH12, a record of respondent’s work activity, indicates that respondent had patched the road with cold mix on March 14,2008.

The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986).

In the instant case, the Court is of the opinion that respondent had, at the least, constructive notice of the hole which claimants’ vehicle struck and that it presented a hazard to the traveling public. The size of the hole and its location on the travel portion of the road lead the Court to conclude that respondent had notice of this hazardous condition. Thus, there is sufficient evidence of negligence upon which to base an award. Notwithstanding the negligence of the respondent, the Court is also of the opinion that the driver was negligent since she was aware of the condition on the road for at least two weeks prior to this incident and did not notify respondent. In a comparative negligence jurisdiction such as West Virginia, the claimant’s negligence may reduce or bar recovery in a claim. Based on the above, the Court finds that the driver’s negligence equals ten-percent (10%) of claimants’ loss. Since the negligence of the driver is not greater than or equal to the negligence of the respondent, claimants may recover ninety-percent (90%) of the loss sustained.

In accordance with the findings of fact and conclusions of law stated herein above, the Court is of the opinion to and does make an award to the claimant in the amount of $317.07.

Award of $317.07.  