
    
      OPINION ISSUED JANUARY 21, 1994
    
    EDWARD E. PRESLEY VS. DIVISION OF HIGHWAYS
    (CC-93-210)
    Claimant present in person.
    Nancy K. McCoy, Attorney at Law, for respondent.
   PER CURIAM:

Claimant, Edward E. Presley, seeks an award of $871.32 from respondent, Division of Highways, for property damage sustained while driving his vehicle on July 4,1993, onU.S. 250 in Fairmont, Marion County.

From the evidence adduced at the hearing on October 19, 1993, it appears that between 1:00 and 2:00 p.m., the claimant was driving with his parents as passengers in his vehicle, a 1991 Mercedes Benz 300D, south on U.S. 250, leaving Fairmont, at an estimated speed of 40 miles per hour when an oncoming vehicle began to crowd him out of his lane of traffic. As he drove his vehicle to the right side of the road, the two passenger side tires struck a hole in the surface of the road. Both of the tires were flattened and the rimes were bent. The claimant stated that he does travel this road quite often, but that he had not noticed this hole in the surface of the road before. The hole was located near the berm of the road and the claimant stated that he would not have been required to 'drive near the berm area had an emergency situation not existed.

James Costello, Marion County supervisor for the respondent, testified that the respondent did have notice of the defective condition of the road and that it had been patched on April 29,1993.

This Court finds, after reviewing the evidence, that the claimant has proven negligence on the part of the respondent by a preponderance of the evidence. This Court takes notice of the fact that a prior claim, John P. Grimmett, II vs. Division of Highways, CC-93-1 (1993), was based in an incident occurring at the exact location as the claim herein. It appears that the respondent had actual notice of the defective condition at least as of December 16,1992, and failed to patch the area until April 29, 1993, four months later. The incident herein occurred on July 4, 1993, a mere two months later. Therefore, the respondent failed to alleviate a known hazard in the surface of the road.

Accordingly, this Court is of the opinion to and does make an award to the claimant in the amount of $871.32.

Award of $871.32.  