
    
      OPINION ISSUED AUGUST 26, 1993
    
    THOMAS TREADWAY VS, DIVISION OF HIGHWAYS
    (CC-92-237)
    Claimant present in person.
    Glen A. Murphy, Attorney at Law, for respondent.
   PER CURIAM:

Claimant, Thomas Treadway, seeks an award of $135.00 from the Division of Highways for property damage sustained while driving his vehicle on July 12, 1992, on West Virginia Route 16 in Cotton Hill, Fayette County.

From the evidence adduced at the hearing on May 5,1993, it appears that the claimant was driving his 1985 Caprice at approximately 50 miles per hour around 12:00 noon with his wife as a passenger on Route 16, when he noticed a hole in the road approximately four to five feet long and four to five inches deep. He was approximately ten to twelve feet away from the hole when he noticed it and he slowed down to go over it. He had been aware that there was construction on the road before he drove on it that day. However, he thought that the holes had all been filled with gravel. As a result of his vehicle hitting the hole, he had to replace two tires on his vehicle.

The respondent admits that it did install a culvert pipe on June 26,1992, and that the hole was filled with a gravel substance until settlement occurs. The settled area is then paved with asphalt. Apparently, the area was not paved with asphalt at the time that claimant’s vehicle went into the settled area.

This Court finds, after reviewing the record, that the respondent was aware of the hazardous condition and failed to properly maintain the area. The claimant also was aware of the construction in the area. He was not operating his vehicle with the caution required for the potentially hazardous condition then and there existing at this area. Therefore, based upon the principle of comparative negligence, this Court finds the respondent 60% negligent and the claimant 40% negligent, thereby reducing the award of total damages of $135.00 to the sum of $81.00.

The Court is of the opinion to and does make an award to the claimant in the amount of $81.00.

Award of $81.00.  