
    
      OPINION ISSUED AUGUST 4, 2008
    
    SHERRY A. MCCUMBERS VS. DIVISION OF HIGHWAYS
    (CC-07-0365)
    Claimant appeared pro se.
    
    Jason C. Workman, Attorney at Law, for respondent.
   PER CURIAM:

Claimant brought this action for vehicle damage which occurred when her 2000 Hyundai Elantra struck a hole while the claimant was driving on Coal River Road in St. Albans, Kanawha County. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.

The incident giving rise to this claim occurred at approximately 2:30 p.m. on November 28, 2007. Coal River Road is a two-lane, paved road with a center line and a white edge line. At the time of the incident, the claimant was traveling from Tornado to St. Albans. As she was driving around a curve on Coal River Road at approximately twenty-five miles per hour, her vehicle struck a hole in the road. The claimant stated that the hole was located approximately five-tenths of a mile from West Main Street. Since the claimant does not usually travel on Coal River Road, she did notice the hole on a prior occasion. As a result of this incident, the claimant’s vehicle had to be re-aligned. The total amount of claimant’s damages amounts to $78.64.

The position of the respondent is that it did not have actual or constructive notice of the condition on Coal River Road. The respondent did not call any witnesses at the hearing.

The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986).

In the instant case, the Court is of the opinion that respondent had, at the least, constructive notice of the hole which claimant’s vehicle struck and that the hole presented a hazard to the traveling public. The location of the hole on the road leads the Court to conclude that respondent had notice of this hazardous condition. Thus, the Court finds respondent negligent, and claimant may make a recovery for the damage to her vehicle.

In accordance with the findings of fact and conclusions of law stated herein above, the Court is of the opinion to and does make an award to the claimant in the amount of $78.64.

Award of $78.64.  