
    
      Opinion issued December 12, 1977
    
    JOHN LAVENDER, JR. vs. DEPARTMENT OF HIGHWAYS
    (No. CC-77-85)
    Claimant appeared in person.
    
      James W. Withrow, Attorney at Law, for respondent.
   WALLACE, JUDGE:

This claim in the .amount of $186.44 was filed by John Lavender, Jr. and his daughter, Tammy Sue Lavender, for damages to a 1976 MG Midget automobile owned by the claimant, John Lavender, Jr. Since the damaged automobile was owned by the claimant, John Lavender, Jr., respondent’s motion to designate him the sole claimant was sustained.

The evidence revealed that in the early part of April, 1977, Tammy Sue Lavender was driving the claimant’s automobile on W.Va. Route 61 in East Bank, West Virginia. It was dark, and the weather was clear. The road was blacktopped. Tammy Sue Lavender testified that she was driving approximately 30-35 miles per hour. She stated that she had driven the road previously going to and from school, but had turned off the road before reaching the point of the accident. She further stated that she proceeded over a hill, and as she entered into a curve, the automobile struck “chug holes” in the pavement. Due to the approach of an oncoming automobile, she was unable to miss them. The claimant, who later went to the scene of the accident to assist his daughter, had no trouble because he was familiar with the highway and was driving a bigger automobile.

To establish negligence on the part of the respondent, there must be proof that the respondent either knew, or, in the exercise of ordinary care, should have known about the defects in the highway. Although apparent defects existed, there is no showing that the respondent had knowledge of the holes, or, if it did, that the holes were of such magnitude as to put respondent on notice of the possibility of an accident.

The law of West Virginia is well established that the State is not a guarantor of the safety of travelers on its roads. Parsons v. State Road Comm’n., 8 Ct. Cl. 35. The case of Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 held:

. . the user of the highways travels at his own risk and that the State does not and cannot assure him a safe journey. . .”

From the record in this case, the Court is of the opinion that the claimant has not proved such negligence on the part of the respondent as to establish liability. Accordingly, the Court is of the opinion to, and does, disallow the claim.

Claim disallowed.  