Kuntz v. Department of Highways

Claimant is the owner of a 1981 Toyota Tercel which was damaged when it struck a pothole on 1-64 near Cross Lanes, Kanawha County, West Virginia, on January 17, 1983. The right front tire and rim were damaged in the amount of $70.00. Claimant testified that he did not see the pothole until he struck it. He stated that he travels the road once or twice a month and that the highway is in need of repair. Claimant had not made any complaints to respondent about the condition of the road prior to this incident.

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 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.