
    OPINION ISSUED DECEMBER 12, 1986
    DELTA W. HARRAH AND EVA KAY HARRAH VS. DEPARTMENT OF HIGHWAYS
    (CC-86-85)
    Claimant, Delta W. Harrah, appeared in person.
    Andrew Lopez, Attorney at Law, for respondent.
   PER CURIAM:

On February 18, 1986, at approximately 9:00 a.m., the claimant was operating his 1984 Buick Century in a westerly direction on Route 60 at the Campbells Creek intersection when the vehicle struck a pothole. The claimant originally filed the claim in his own name. The car is titled in both claimants' names, Delta W. Harrah and that of his wife, Eva K. Harrah. The Court then, upon its own motion, amended the style of the claim to include Eva K. Harrah as a party claimant.

The claimant was travelling from his home in Fayetteville to Charleston at a speed of approximately 30-35 miles per hour. The impact of the pothole damaged the left front tire and wheel, and required realignment of the vehicle for a total amount of $144.63. The claimant testified that he travelled this route only occasionally. He observed the hole before his vehicle struck it. However, there were holes in both the lane in which he was proceeding and the other lane of the two-lane road. For that reason, it was impossible to avoid the hole. The claimant estimated that the pothole is "half as big as a bathtub. He stated that he had not given respondent notice prior to this accident as that was the first time he had been "down through there for six months or even longer."

The State is neither an insurer nor a guarantor of the safety of motorists on the highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for the respondent to be found liable for the damages incurred, proof of notice., either actual or constructive, of the defect in question must be shown. As there was no such evidence presented, the claim must be denied.

Claim disallowed.  