
    
      OPINION ISSUED FEBRUARY 7, 2008
    
    RUSSELL R. DEEM VS. DIVISION OF HIGHWAYS
    (CC-06-076)
    Claimant appeared pro se.
    
    Andrew F. Tarr, Attorney at Law, for respondent.
   PER CURIAM:

Claimant brought this action for personal injuries which occurred as a result of a wooden plank falling off Hutchinson Bridge while he was walking on County Route 90/3 near Worthington, Marion County. County Route 90/3 is a road maintained by respondent. The Court is of the opinion to deny the claim for the reasons more fully stated below.

The incident giving rise to this claim occurred between 12:00p.m. and 1:00p.m. on February 13, 2006. Hutchinson Bridge on County Route 90/3 is a one-lane highway with a wooden sidewalk at the area of the incident involved in this claim. Claimant testified that he was walking across Hutchinson Bridge when a wooden board fell out from the bridge after he stepped on it. Mr. Deem stated that he then fell into the road, injuring his right arm and back. Claimant stated that his damages were $5,000.00.

The position of the respondent is that it did not have actual or constructive notice of the condition on Hutchinson Bridge on County Route 90/3 at the site of the claimant’s accident for the date in question. Randy Harris, District Bridge Engineer for the respondent in District 4, which includes Marion County, testified that he had no knowledge of any loose wood planks on Hutchinson Bridge on County Route 90/3. Mr. Harris stated that the bridge is a one lane bridge with a sidewalk made up of two by six wood planks. He testified that there had been no complaints regarding Hutchinson Bridge prior to claimant’s incident. Respondent had received no notice of loose planks in the sidewalk on Hutchinson Bridge on County Route 90/3 on the day of the incident in question.

The well-established principle of law in W est Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. 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 vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).

In the instant case, the evidence established that the respondent did not have actual or constructive notice of loose wooden planks on Hutchinson Bridge on County Route 90/3 prior to the incident in question. Consequently, there is insufficient evidence of negligence upon which to justify an award. Thus, the claimant may not make a recovery for his loss in this claim.

In view of the foregoing, the Court is of the opinion to and does deny this claim.

Claim disallowed.  