Shiflet v. Department of Highways

The claimants seek an award of $697.36 to repair damage to their 1980 Plymouth Volare automobile. The damage allegedly occurred driving on Gluck Run in Gilmer County, West Vir*340ginia, which is where the claimants reside. They testified that respondent left large rocks in the road, which is a dirt road, after a scraping operation. The damage occurred sometime in March or April, 1982, and there was no specific incident which caused it.

Ralph Marks, Gilmer County maintenance supervisor, testified that three-inch and one and one-half-inch stone was used to fill holes in the road. He also said that he viewed Gluck Run after receiving a call from claimants and saw no rocks which were large enought to damage a car.

Without a positive showing of negligence on the part of the respondent, this case is governed by the well settled principle of Adkins v. Sims, 130 W.Va. 645 (1947) that the State is not a guarantor of the safety of travelers, and the user of the highway travels at his own risk. The existence of a defect in the roadway does not establish negligence per se. The claimants lived on Gluck Run and were aware of its condition.

The evidence in the record is not sufficient to establish such negligence on the part of the respondent as to create liability for the claimants’ damage. Accordingly, the Court is of the opinion to and does disallow the claim.

Claim disallowed.