Cyrus v. Department of Highways

The claimant’s vehicle, a 1975 Chevrolet Van, was damaged in an accident on Route 3, Boone County, West Virginia, on October 17, 1980. The vehicle was a total loss. The accident occurred when the vehicle went through water on the road. The water extended across the pavement and was three or four inches deep. James Smith, who was driving at the time, lost control of the vehicle and hit an overhanging rock cliff. Claimant seeks an award of $4,500.00, $3,000.00 for the van, $500.00 for injuries received, and $1,000.00 for lost wages.

The claimant testified that he had driven that road on many occasions and knew that the road had flooded before, although never as much as on the night of the accident. He indicated that the water came from a stopped up culvert alongside 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 negligence of the respondent to be shown, proof of notice of the defect in the road is required. Davis Auto Parts v. Dept. of Highways, 12 Ct.Cl. 31 (1977). In this case, there was no evidence that respondent knew or should have known of the condition of the road. The Court must therefore disallow the claim.

Claim disallowed.