
    
      Opinion issued January 28, 1983
    
    ALFRED W. SMITH vs. DEPARTMENT OF HIGHWAYS
    (CC-82-177)
    
      William W. Pepper, Attorney at Law, for claimant.
    
      Nancy J. AMff, Attorney at Law, for respondent.
   PER CURIAM:

Sometime in July 1982, the claimant was driving his 1976 Toyota Corolla on Fisher Ridge in Putnam County, West Virginia, when he encountered a ditch in the road. The chassis of the car broke in two places, and subsequent welding of the frame proved unsuccessful. The car remains undrivable. Claimant seeks $1,500.00 as replacement value of the car.

The claimant testified that when he went to work between 7:30 and 8:00 that morning he saw four or five Department of Highways employees apparently cleaning the ditch along Fisher Ridge. When he returned at 5:00 p.m., the ditch was in the road, which claimant stated was the result of the installation of a 24-inch drainpipe across the road. A 12 to 14-inch drop existed between the road and the ditch. The claimant saw no signs warning of danger. He did not see any equipment capable of digging the ditch, nor could he say who dug the ditch.

From the evidence presented in this claim, the Court cannot find that respondent dug the ditch which caused the damage to claimant’s automobile. The State is neither an insurer nor a guarantor of the safety of persons travelling on its highways. Adkins v. Sims, 130 W.Va. 645 (1947). For the State to be found liable, it must first have had either actual or constructive notice of the defect. Since there was no proof in this case that the State had notice, the claim must be denied.

Claim disallowed.  