
    
      OPINION ISSUED JANUARY 17, 1992
    
    JACK GREGORY AND SHIRLEY GREGORY VS. DIVISION OF HIGHWAYS
    (CC-91-93)
    Jack Gregory appeared on behalf of the claimants.
    Glen A. Murphy, Attorney at Law, for respondent.
   PER CURIAM:

OnJanuary30, 1991, at approximately 6:00 p.m., the claimant was traveling west on Interstate 64 between the Greenbrier and Broad Street exits, in Charleston, Kanawha County. In the described area near Mile Post 98, the claimants’ 1989 Nissan Sentra fell into a hole described by the claimant as being two to four feet wide, two to four feet long, and 12 inches deep. The hole was reportedly full of water, and could not be seen by the claimant. Upon impact with the hole, the front right tire ruptured, and the vehicle was knocked out of alignment. The claimant testified that he was traveling between 45 and 50 miles per hour when the accident occurred, and that he had no warning of this hole in the road. The damaged tire was replaced and balanced, and the vehicle was realigned. Receipts admitted into evidence indicate the cost of the tire was $40.28, inclusive of the balancing and applicable taxes. The alignment was an additional $19.95. These repair costs total $60.23. The claimant testified that insurance did not pay for the repairs. The claimant testified that the damaged tire was a new replacement, and that it had approximately 10,000 miles of wear when the accident occurred.

The respondent’s witness, Herbert C. Boggs, Interstate Maintenance Assistant for the respondent, testified that he was familiar with the hole that the claimant had described. He stated that an accident had occurred earlier on the same evening, and in the same area as the claimant’s accident. Mr. Boggs’ testimony indicates that the first accident was reported around 4:30 P.m. to the respondent, but repairs to the hole may not have been completed before midnight. The claimant’s 6:00 p.m. accident appears to have happened after the respondent had notice of the hazard, but before repairs were undertaken on the evening of January 30, 1991.

Considering the evidence in the light most favorable to the claimants, and holding that the respondent was on notice of the described road hazard, the Court finds the respondent negligent for failing to warn the travelers of the interstate of this hazard. The Court, however, is unwilling to recommend full reimbursement for a tire replacement without adjustment for its prior use. Accordingly, the Cost of the new tire is reduced by 25%. The Court therefore makes an award to the claimants in the amount of $50.13.

Award of $50.13.  