Mullins v. Department of Highways

The claimant herein alleges damages to his 1974 Chevrolet *165Impala which resulted when the vehicle struck a pothole on West Virginia Route 41 on January 2, 1982, while the claimant was proceeding from Beckley, West Virginia, to his home at Terry, West Virginia.

The pothole struck by claimant’s vehicle was located on the right-hand side of the road, partly in the berm and partly in the paved portion of the highway. Claimant’s vehicle sustained damages in the amount of $155.78 as a result.

No evidence was introduced to prove knowledge, either actual or constructive, of the existence of the pothole on the part of the respondent. The law is well established in West Virginia that 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, 46 S.E.2d 81 (1947). Before the respondent can be held liable, there must be some showing that the respondent knew or should have known of the defect in the highway. Accordingly, the Court disallows the claim.

Claim disallowed.