
    
      Opinion issued April 6, 1984
    
    THOMAS M. JONES & DEBRA L. JONES vs. DEPARTMENT OF HIGHWAYS
    (CC-83-205)
    Claimants appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

This claim was originally filed in the name of Thomas M. Jones, but when the testimony revealed that the damaged automobile, a 1981 Chrysler Reliant K, was titled in the joint names of Thomas M. Jones and his wife, Debra L. Jones, the Court, on its own motion, amended the style of the claim to include Debra L. Jones as an additional claimant.

On April 23, 1983, claimants were travelling on Interstate 64 west of the Nitro Bridge in Kanawha County, when their vehicle struck a pothole. Mrs. Jones, the driver of the vehicle, testified that they had just passed through an area of road construction and one lane of traffic was blocked off. Past the barricades, she changed lanes and struck the pothole which was located in the center of the two lanes. Replacement of the damaged right front tire amounted to $74.93.

The State is neither an insurer nor a guarantor of the safety of persons travelling on its highways. Adkins v. Sims, 130 W. Va. 645, 46 S.E.2d 81 (1947). In order for the State to be held liable for the damage incurred, it must have had either actual or constructive notice of the defect involved. No evidence of actual notice was presented. The presence of road repair construction near the pothole may be sufficient to establish constructive notice; however, respondent must also have sufficient time to repair the defect after notice is given. Here there was no testimony concerning the amount of time the pothole had been in existence. The Court is, therefore, disposed to deny the claim.

Claim disallowed.  