
    
      Opinion issued January 26, 1983
    
    ANDREW S. YOUNG vs. DEPARTMENT OF HIGHWAYS
    (CC-81-75)
    Claimant appeared in person.
    
      Nancy J. AUff, Attorney at Law, for respondent.
   PER CURIAM:

On February 11, 1981, claimant was driving his 1972 Datsun 240-Z on U.S. Route 52 about three-tenths of a mile south of the junction of U.S. Route 52 and West Virginia Route 44 in Logan County, West Virginia. Claimant was traveling north at about dawn, and entered the southbound lane in order to pass a truck. His automobile struck a rock in the road, sustaining damages of $3,995.55.

The claimant testified that when he first saw the object, he was about 100 to 150 yards away and that he was parallel to the truck when he hit the rock. There was nowhere for him to go to avoid the rock. Claude Blake, a claims investigator, stated that at the scene of the accident the berms are exceptionally wide, from 10 to 17 feet, and that the area is not prone to rock falls. The claimant stated that he had travelled that road the day before the accident and the rock was not present.

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 in the roadway. Since there was no proof in this case that the State had notice of the defect, the claim must be denied.

Claim disallowed.  