Terry v. Department of Highways

This claim was originally styled in the name of Doris A. Terry, but when the testimony indicated that the vehicle, a 1983 Volkswagen Rabbit GTI, was titled in the name of Doris A. Terry and Michael A. *155Terry, the Court, on its own motion, amended the style to include Michael A. Terry as an additional claimant.

The claimant, Doris A. Terry, testified that she struck a pothole on Coal River Road, 1.8 miles from St. Albans, in Kanawha County, West Virginia. The incident occurred on January 24, 1984, at approximately 6:20 p.m. The right front tire was replaced and the wheels aligned for a total cost of $112.46. Claimant testified that she drove the road daily, but had not seen the pothole before.

The State is neither an insurer nor a guarantor of the safety of motorists on the highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for the respondent to be found liable for the damages incurred, proof of notice, either actual or constructive, of the defect in question must be shown. As there was no such evidence presented, the claim must be denied.

Claim disallowed.