
    
      Opinion issued June 4, 1980
    
    LESTER BESS vs. DEPARTMENT OF HIGHWAYS
    (CC-79-372)
    
      Stephen P. Swisher, Attorney at Law, for claimant.
    
      Douglas Hamilton, Attorney at Law, for respondent.
   WALLACE, JUDGE:

On July 21,1979, between 11:00 a.m. and 11:30 a.m., the claimant was operating his 1964 Cadillac in an easterly direction on Route 25 in the City of Dunbar, West Virginia, when a large piece of asphalt struck the claimant’s exhaust system. The exhaust system was later repaired by Midas Muffler of Charleston at a cost of $169.80. The testimony revealed that the eastbound lane of Route 25, a State-maintained road, had been torn up for some time prior to the claimant’s accident, but there was no evidence that respondent had created this condition, although it was established that respondent did resurface the road in the fall of 1979.

Frank B. Leone, Mayor of the City of Dunbar, testified on behalf of the claimant. From his testimony, it could be concluded that the condition of the road was caused by a contractor who had installed a storm sewer in the street of the City of Dunbar. The Mayor, while not admitting that the condition of the road was due to the acitivities of the contractor, implied that the respondent should be liable because of the presence of one of the respondent’s inspectors during the installation of the storm sewer. This inspector apparently had approved the work of the contractor. Without discussing the negligence on the part of the claimant, the Court is of the opinion that the claimant has failed to establish by a preponderance of the evidence that the respondent was guilty of actionable negligence; thus, an award is hereby denied.

Claim disallowed.  