
    
      OPINION ISSUED JANUARY 15, 1986
    
    BONNIE FAYE JARRELL VS. DEPARTMENT OF HIGHWAYS
    (CC-85-299)
    Claimant's husband, James E. Jarrell, appeared for claimant.
    Andrew Lopez, Attorney at Law, for respondent.
   PER CURIAM:

On July 27, 1985, the claimant's husband was driving the claimant's 1982 Chevrolet Monte Carlo on Cabin Creek Road, Kanawha County, when the vehicle struck a pothole. The vehicle sustained damage to the tire and wheel in the amount of $237.25. The husband of the claimant, James E. Jarrell, originally filed this claim in his own name and that of his wife, Bonnie Faye Jarrell. However, the record reflects that his wife was the sole titled owner of the vehicle. The Court then, upon Mr.' Jarrell's agreement, amended the style of the claim to delete James E. Jarrell as a party claimant. Claimant's husband testified that he estimated the pothole to be seven inches deep, twelve inches wide, and sixteen inches long. Claimant's husband had observed the pothole and believed it had been in existence for two months prior to this accident.

Claimant's husband also testified that he had notified respondent office in Charleston, by telephone, about two or three weeks prior to this incident, concerning this pothole and other potholes beyond it on the same road. He could not identify the person who took his complaint. Although the respondent may have had actual notice of the existence of the pothole in the road, the claimant's husband was operating the vehicle at an estimated speed of 40 miles per hour, an excessive rate of speed for the conditions then and there existing.

It is the opinion of the Court that although the respondent may have been negligent, the negligence of claimant's husband was equal to or greater than that of the respondent. The Court therefore denies the claim.

Claim disallowed.  