
    
      Opinion issued December 22, 1977
    
    JOHN F. CUMMINGS vs. DEPARTMENT OF HIGHWAYS
    (No. CC-76-77)
    
      John F. Cummings, the claimant, in person.
    
      Richard Carlton, Attorney at Law, for the respondent.
   RULEY, JUDGE:

On Thursday evening, June 17, 1976, an automobile owned by the claimant and operated by the claimant’s wife struck a hole in the inside, eastbound lane of Route 1-70 between the Wheeling Tunnel and the Elby off-ramp, sustaining damage for which the claimant seeks $120.90.

This accident involves the same pothole which was involved in the case of Hoskins v. Department of Highways, 12 Ct. Cl 60 (1977). That case is controlling. The evidence clearly indicates that the hole appeared suddenly and without warning. Proof of actual or constructive notice is a prerequisite to establishing negligence on the part of the respondent. Davis v. Department of Highways, 12 Ct. Cl. 31 (1977); Hoskins, supra. Respondent did not have notice of this particular hole in the road in time to take action to prevent this accident. Since negligence is, therefore, not shown, and since the State is neither an insurer nor a guarantor of the safety of motorists on its highways (Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 [1947]), this claim must be denied.

Claim disallowed.  