
    
      OPINION ISSUED OCTOBER 10, 2002
    ROY L. HOLSTEIN and SHEILA HOLSTEIN VS. DIVISION OF HIGHWAYS
    
      (CC-01-160)
    Claimant appeared pro se.
    
    Xueyan Zhang, Attorney at Law, for respondent.
   PER CURIAM:

Claimants brought this action for damage to their 1993 Volvo Station-Wagon which occurred when claimant Sheila Holstein was operating their vehicle on Route 114 in Pinch, Kanawha County, and the vehicle struck a large hole in the road. This portion of Route 114 is maintained at all times herein by respondent in Kanawha County. The Court is of the opinion to make an award in this claim for the reasons stated more fully below.

The incident giving rise to this claim occurred on April 4, 2001, at approximately 4:45 p.m. The claimant Sheila Holstein was driving a 1993 Volvo Station-Wagon northbound on Route 114, also called Indian Creek Road. She was on her way home with approximately 350 pounds of groceries in the car that she had just purchased for the local food pantry that several churches in the area support. The weather was cold and cloudy with a few snow flurries, however the road surface was not slick. Mrs. Holstein described the traffic as very heavy that day in both directions. She was traveling through a straight stretch near Seneca Hills Subdivision in Pinch, with another vehicle directly in front of her. Due to the vehicle being in front of her, she was unable to see the large hole in front of her in time enough to avoid striking it with her vehicle. Mrs. Holstein estimates that she was approximately fifteen feet from the hole before she saw it. Given such a short time to react, and the lack of an adequate berm to maneuver onto, she had no alternative but to drive into the hole. The impact was hard, but initially the claimants did not know the significance of the damage. Approximately four days later, Mrs. Holstein was driving the same vehicle when she was alerted by another motorist that she had a flat tire. Claimants went to have this tire replaced and at this time the mechanics discovered that there was additional damage. One tire was destroyed, the right front wheel was cracked and bent, and the right rear wheel was bent. The total cost of the replacements and repairs for this damage was $965.17. However, claimants had comprehensive insurance coverage that covered this loss with a deductible of $250.00. Therefore, claimants are limited to a recovery in the amount of their deductible.

Claimants contend that respondent knew or should have known of such a large hole in the road on Route 114 and that it should have taken adequate measures to repair this hole.

Mrs. Holstein testified that Route 114 at this location is a two-lane, blacktop road with double yellow lines and white lines on the edges. She also testified that she was traveling the speed limit of forty miles-per-hour. According to Mrs. Holstein, there are numerous holes in the road along this portion of Route 114. She described this hole as being between one and a half to two feet from the white edge line within the lane of travel. Although she could not state how deep it was, she did state that it was at least one foot wide. Mrs. Holstein also stated that at this location there is a ditch and a rock cliff on the right side of the road and on the left side there is a steep drop off over a hill.

The law is well established in this State that the respondent is neither an insurer nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 811 (W.Va. 1947). To hold respondent liable, the claimant must establish by a preponderance of the evidence that the respondent had actual or constructive notice of the road defect at issue and a reasonable amount of time to make adequate repairs. Pritt v. Dept. of Highways, 16 Ct.Cl. (1985).

In the present claim, claimants established by a preponderance of the evidence that the respondent had at least constructive, if not actual, notice of this hole. The size of this hole, its location into the travel portion of the road, and the fact that this incident occurred in April leads the Court to conclude that the hole had been in existence for a long enough period of time that adequate repairs should have been made. Thus, the Court finds that respondent was negligent in this claim.

Accordingly, the Court makes an award to claimants in the amount of $250.00

Award of $250.00.  