
    
      OPINION ISSUED FEBRUARY 11, 2009
    
    NORVELL RAY ATKINS SR. VS. DIVISION OF HIGHWAYS
    (CC-08-0062)
    Claimant appeared pro se.
    
    Jason C. Workman, Attorney at Law, for respondent.
   PER CURIAM:

Claimant brought this action for vehicle damage which occurred when his 2007 Chevrolet Impala struck a hole on Kanawha Boulevard in Charleston, Kanawha County. Kanawha Boulevard is a road maintained by respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.

The incident giving rise to this claim occurred at approximately 8:30 p.m. on January 30,2008. At the time of the incident, claimant and his wife, who was a passenger in the vehicle, were traveling from Riverview Gospel Tabernacle to their home in Belle. Claimant was driving between Wertz Avenue and the Charleston Moose Club at approximately twenty to twenty-five miles per hour when his vehicle struck a hole in the road. The hole was located in the far right lane and was approximately one and one-half feet long, one foot wide, and eight inches deep. Claimant does not travel on this road frequently, and he had not encountered the hole prior to this incident. As a result, claimant’s vehicle sustained damage to its wheel in the amount of $315.23 and its alignment in the amount of $103.35. Thus, claimant’s damages total $418.58. Claimant’s insurance deductible was $500.00 at the time of the incident.

The position of the respondent is that it did not have actual or constructive notice of the condition on Kanawha Boulevard. Respondent did not present a witness at the hearing.

The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986).

In the instant case, the Court is of the opinion that respondent had, at the least, constructive notice of the hole which claimant’s vehicle struck and that the hole presented a hazard to the traveling public. The size of the hole and its location on the road lead the Court to conclude that respondent had notice of this condition. Thus, the Court finds respondent negligent and claimant may make a recovery for the damage to his vehicle.

In accordance with the findings of fact and conclusions of law stated herein above, the Court is of the opinion to and does make an award to the claimant in the amount of $418.58.

Award of $418.58.  