Beard v. Department of Highways

On November 21, 1980, at about 7:30 p.m., the claimants were proceeding in an easterly direction on Seventh Avenue near 35th Street in Charleston, West Virginia. It was dark, but the weather conditions were normal. Mr. Beard was operating their 1977 Oldsmobile at a speed of about 30 miles per hour, and Mrs. Beard was seated in the front passenger seat. Seventh Avenue near 35th Street is a four-lane highway, the two lanes for eastbound traffic separated from the two westbound lanes by a median strip. *390Apparently, some construction work was taking place in the area, for both inner lanes were blocked off, and east and westbound motorists were limited to one lane of traffic, which was the outer, or right, lane.

Although there was traffic immediately in front of claimants, obscuring Mr. Beard’s vision, the left front wheel of their car struck a pothole located in the left portion of their lane of travel. After the accident, the claimants examined the hole, and Mrs. Beard testified that it was about 2 1/2 feet wide and 4 to 6 inches deep. According to Mrs. Beard, the wire mesh reinforcing material was visible in the bottom of the hole. As a result of striking this hole, the claimants incurred a total expense of $48.98. Mrs. Beard also testified that her husband drove Seventh Avenue on a daily basis to and from his place of employment in Charleston; however, Mr. Beard neither testified nor appeared at the hearing, and, consequently, there is no evidence in the record which would indicate his prior knowledge, or lack thereof, of the existence of this particular hole. Claimants further failed to establish that the respondent knew or should have known of the existence of this pothole prior to the subject accident.

The Court is of the opinion that the claimants have failed to carry the burden of proof necessary to establish a prima facie case of liability against the respondent. Therefore, the claim must be denied.

Claim disallowed.