Crank v. Department of Highways

Claimant seeks $308.76 as the replacement cost of a tire and rim for his 1982 Ford Mustang which were damaged by a piece of a metal reflector which had broken out of 1-64-77 near the 35th Street Bridge Exit in Charleston, Kanawha County, West Virginia. Claimant testified that the piece of metal became imbedded in the tire and he did not see the metal prior to striking it. The incident occurred on October 31, 1982, between 3:00 and 4:00 a.m.

Ken Kobetsky, director of the traffic engineering division, testified that his division had never received any complaints about the reflectors. There are approximately 90,000 of these reflectors in roads in the State, and about 1% are replaced each year. Mr, Kobetsky did not know of any prior damage being caused by a reflector.

The State is neither an insurer nor a guarantor of the safety of travellers on its highways. Adkins v. Sims, 130 W.Va. 645 (1947). For the State to be found liable, it must first have had either actual or constructive notice of the defect in the roadway. Since there was no proof in this case that the State had notice of the defect, the claim must be denied.

Claim disallowed.