
    
      OPINION ISSUED DECEMBER 12, 2002
    JACKIE JEWELL VS. DIVISION OF HIGHWAYS
    (CC-02-135)
    
      Claimant appeared pro se.
    Andrew F. Tarr, Attorney at Law, for respondent.
   PER CURIAM:

Claimant brought this action for damage to her 2001 Pontiac Grand Am which occurred when she was traveling on Chattaroy Hollow Road in Mingo County and her vehicle struck one or two large holes in the road. Respondent was responsible at all times herein for the maintenance of Chattaroy Hollow Road. The Court is of the opinion to make an award in this claim for the reasons set forth below.

According to the claimant, the incident giving rise to this claim occurred sometime in mid-January 2002 in the early evening hours. She could not state with certainty what the date or time of the incident was. Mrs. Jewell had driven to the Mingo County Public Service District to bring her husband home from work. She and her husband, who was the front seat passenger, were traveling to their home in Williamson, Mingo County, on Chattaroy Hollow Road. The weather was clear and the road surface was dry. As she was traveling around a curve at approximately thirty to thirty-five miles per hour, an oncoming vehicle forced her to maneuver her vehicle to the right side of her lane to avoid a collision. Suddenly, she felt a bump and heard a loud noise when her passenger side tires struck one or two large holes in the travel portion of the road. Mrs. Jewell testified that she had no choice but to maneuver the vehicle over the holes due to the oncoming vehicle. She admitted that she knew the holes were present and that these holes had probably been there for a few months prior to this incident. Claimant described the holes as being significantly deep. However, she was unable to measure the holes. The impact damaged both passenger side wheels and rims. Claimant has full coverage on this vehicle with a $500.00 deductible, which would have covered this damage. However, she testified that she did not make a claim against her insurance company because one of its agents informed her that she should pursue a claim against the respondent first. She submitted a repair estimate in the amount of $326.40. which represents the damage to the front wheel and rim. Claimant also seeks $326.40 for damage to her rear wheel and rim. Thus, she seeks a total award of $652.80 in damages. However, the most claimant may recover in this Court is the amount of her insurance deductible feature which is $500.00.

It is claimant’s position that respondent failed properly to maintain the road in a timely fashion and this failure was the proximate cause of her damages.

Respondent did not offer any witnesses or evidence in the trial of this matter.

It is a well established principle that the State is neither an insurer nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Simms, 46 S.E2d 811 (W.Va.1947). To hold respondent liable, claimant must establish by a preponderance of the evidence that respondent had actual or constructive notice of the road defect in question and a reasonable amount of time to take corrective action. Chapman v. Dept of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985).

In the present claim, the Court is of the opinion that respondent had at least constructive notice of the holes at issue in Chattaroy Hollow Road and that the' holes presented a hazard to the traveling public. The testimony at the hearing of this matter establishes that the holes had been present for a significant period of time. Further, the holes were large and within the travel portion of the road. Thus, the Court finds respondent negligent and claimant may make a recovery for the amount of her insurance deductible of $500.00.

Accordingly, the Court makes an award to the claimant in the amount of $500.00.

Award of $500.00.  