
    
      Opinion issued June 24, 1983
    
    CAROLE E. UPDYKE and LIONEL JOE UPDYKE vs. DEPARTMENT OF HIGHWAYS
    (CC-83-122)
    Claimant appeared in person.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

This claim was originally filed in the name of Carole E. Up-dyke, but when the testimony disclosed that the damaged automobile, a 1978 Oldsmobile Custom Cruiser, was titled in the joint names of the claimant and her husband, Lionel Joe Updyke, the Court on its own motion joined Lionel Joe Updyke as an additional claimant.

Mrs. Updyke testified that she was travelling on Route 61, also known as MacCorkle Avenue, Charleston, Kanawha County, West Virginia, on January 7, 1983. At approximately 2:00 p.m., she struck a piece of concrete or tar which was located on the right-hand side of her lane. The right rear tire was punctured, and was replaced at a cost of $86.97. She said that she thought the concrete or tar had broken off a seam in the pavement, but had no knowledge of how long it had been in the road.

The State is neither an insurer nor a guarantor of the safety of persons travelling on its highways. Adkins v. Sims, 130 W.Va. 645 (1947). For the State to be found liable, it must first have had either actual or constructive notice of the defect in the roadway. Since there was no proof in this case that the State had notice of the defect, the claim must be denied.

Claim disallowed.  