
    
      OPINION ISSUED OCTOBER 1, 1986
    
    TRUDY PROTZMAN VS. DEPARTMENT OF HIGHWAYS
    (CC-85-376)
    Claimant appeared in person.
    Andrew Lopez, Attorney at Law, for respondent.
   PER CURIAM:

The claimant was travelling south on West Virginia Route 52 between Prichard and Hubbards Town when her 1983 Pontiac Trans Am struck a pothole. The incident occurred on September 28, 1985, at approximately 8:00 p.m. Claimant, accompanied by her sister, Penny Combs, and her brother-in-law, Roy Combs, was proceeding at approximately 55 miles per hour in a southerly direction on the two-lane concrete highway to Fort Gay, Wayne County. She seeks $250.00 for the replacement of two tires.

Claimant testified that she had her vehicle's headlights on low beam. The weather was clear and dry. Claimant was coming out of a 120 degree curve when the vehicle struck the pothole. She did not observe the pothole until her vehicle was right upon it. She estimated that the vehicle travelled 100 yards before it stopped. She and her sister exited the vehicle to examine the pothole. She stated that the hole was about two feet long and approximately four inches deep. She had travelled the same route about two weeks prior to this incident, but had not run through the pothole at that time.

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.  