Fidler v. Department of Highways

On February 15, 1982, an automobile owned and driven by the claimant struck a pothole on Oakwood Road in Charleston, West Virginia, necessitating a realignment of the vehicle. The claimant asserts that the accident was caused by the respondent’s negligence, and seeks damages in the sum of $24.25.

The State is neither an insurer nor a guarantor of the safety of motorists travelling on its highways. Adkins v. Sims, 130 W.Va. 645 (1947); Lowe v. Department of Highways, 8 Ct.Cl. 210 (1971). A claimant must prove that the respondent failed to conform to a standard of “reasonable care and diligence. . . under all the circumstances.” Parsons v. State Road Commis*163sion, 8 Ct.Cl. 35 (1969). In the instant case, the pothole was located on the claimant’s right-hand side of the pavement, and was filled with water. There is no evidence that the respondent had either actual or constructive notice of the pothole. See Davis v. Department of Highways, 12 Ct.Cl. 31 (1977); Swift v. Department of Highways, 10 Ct.Cl. 56 (1974). Accordingly, the evidence is not sufficient to establish negligence on the part of the respondent, and this claim must be denied.

Claim disallowed.