
    
      OPINION ISSUED JULY 29, 1986
    
    LARRY FARLEY AND LINDA FARLEY VS. DEPARTMENT OF HIGHWAYS
    (CC-85-271)
    Claimants appeared in person.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

This claim was originally styled in the name of Larry Farley, but when testimony indicated that the vehicle, a 1985 Datsun Maxima, was titled in the name of Larry Farley and Linda Farley, the Court, on its own motion, amended the style to include Linda Farley as an additional claimant.

Claimant Linda Farley testified that she was travelling north on Route 85, in the vicinity of the Well's plant, when her vehicle hit a pothole. The incident occurred on April 5, 1985, at approximately 6:50 a.m. Claimant Larry Farley testified it occurred approximately 3/10 of a mile north of a railroad crossing, at Wharton, Boone County, West Virginia. The weather conditions that day were good. Another vehicle, travelling south, cut over and crowded claimant's vehicle. For that reason, she went to the right of the pothole to avoid it. The left tire of her vehicle struck the pothole. Claimant Linda Farley testified that she was aware that the pothole was there. She described it as being, " ... about the whole lane of traffic. A tire and aluminum rim were replaced for a total cost of $346.86.

The State is neither an insurer nor a guarantor of the safety of motorists on the highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947) . In order for the respondent to be found liable for the damages incurred, proof of notice, either actual or constructive, of the defect in question must be shown. As there was no such evidence presented, the claim must be denied.

Claim disallowed.  