Mundy v. Department of Highways

*29This claim was originally titled in the name of J. Douglas Mundy, but when the evidence established that the vehicle, a 1982 Renault LeCar, was titled in the joint names of J. Douglas Mundy and his wife, Karen J. Mundy, the Court, on its own motion, amended the style to reflect Karen J. Mundy as an additional claimant.

On April 22, 1983, claimant was travelling westbound on 1-64 between St. Albans and Winfield, Kanawha County, West Virginia. The right-hand lane was closed due to road repairs, and approximately 115 feet after the barricades stopped, claimant changed from the left to the right-hand lane. As he did, he struck a pothole located in the center of the two lanes. The right front tire was punctured, the rim damaged beyond repair, and the front end required realignment. Damages totaled $191.24. Claimant testified that he travelled the road about once a week and he knew the road was under construction. He stated that he was not aware of the pothole in question, although he may have seen it. He stated that there were numerous potholes on that stretch of road.

The evidence presented indicated that respondent was performing repair work on a stretch of 1-64 just ahead of the site of this incident. The Court concludes that respondent should have had constructive, if not actual, notice of the pothole. However, claimant testified that he was aware of the condition of the road and travelled it on a regular basis. Therefore, the Court concludes that any negligence on the part of the respondent was equalled or exceeded by that of the claimant. Under the doctrine of comparative negligence, the Court denies the claim.

Claim disallowed.