
    
      OPINION ISSUED JANUARY 12, 2007
    
    PHILIP S. LAWRENCE VS. DIVISION OF HIGHWAYS
    (CC-05-333)
    Claimant appeared pro se.
    
    Jason C. Workman, Attorney at Law, for respondent.
   PER CURIAM:

Claimant brought this action for vehicle damage which occurred when his 2004 Volkswagen Golf R32 struck a hole while he was traveling eastbound on Route 60 near South Charleston, Kanawha County. Route 60 is a road maintained by respondent. 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 12:00 p.m. on August 4, 2005. Route 60 is a four-lane highway with a right turn lane at the area of the incident involved in this claim. Claimant testified that on the clear and dry day in question, he was driving on Route 60 in the right turn lane when he saw the hole. Mr. Lawrence stated that he was unable to avoid the hole due to the traffic around him. Claimant’s vehicle struck the hole sustaining damage to a tire totaling $138.21.

The position of the respondent is that it did not have actual or constructive notice of the condition on Route 60 at the site of the claimant’s accident for the date in question. Respondent did not present any testimony or evidence at the hearing of this matter.

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 vs. 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 vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).

In the instant case, the Court is of the opinion that respondent had at least constructive notice of the hole which claimant’s vehicle struck and that the hole presented a hazard to the traveling public. Photographs in evidence depict the size of the hole and its location in the road. The size of the hole and the time of year at which this incident occurred leads the Court to conclude that respondent had notice of this hazardous condition and respondent had an adequate amount of time to take corrective action. Thus, the Court finds respondent negligent and claimant may make a recovery for the damage to his 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 claimants in this claim in the amount of $138.21.

Award of $138.21.  