Hackney v. Department of Highways

Claimant’s 1972 Porsche automobile was damaged on February 21, 1981, at about 5:30 p.m., when she struck a pothole on Campbell’s Creek Road, a two-lane, blacktop road in Kanawha County, West Virginia. Her car was repaired by Bert Wolfe Ford for the sum of $298.70, and she is seeking an award in this amount on the theory that the respondent was negligent in failing to properly maintain this road.

Ms. Hackney testified that she was returning to her home in Blount from her place of employment in Charleston. She quite candidly admitted that she was aware of the existence of this hole near the edge of her lane of travel, but had been able to avoid it on prior occasions by steering to her left toward the center line of the road. On the evening of the accident, however, the road was covered by several inches of water, according to the claimant’s testimony. This water prevented her from observing the exact location of the hole. To compound the problem, she could not steer to her left because a vehicle was approaching from the opposite direction. The claimant neither testified as to the dimensions of the hole, nor stated whether she had ever notified the respondent of the existence of the hole prior to the accident.

By reason of the foregoing, the Court is of the opinion that the claimant has failed to establish actionable negligence on the part of the respondent. On the contrary, the evidence establishes that the accident and resultant damages to the claimant’s car was due to her own negligence. For these reasons, this claim is disallowed.

Claim disallowed.