Carpenter v. Department of Highways

Claimant seeks $712.86 for damages sustained by his 1978 Jeep CJ5 on September 14, 1983, in an accident on Route 39/14 in Nicholas County, West Virginia. Route 39/14 is a narrow road which is paved at the accident site. Claimant had moved off the road to allow another vehicle to pass in the opposite direction, when he struck a slab of cement which was hidden by grass. There was a pole in the cement, and claimant was unsure whether he struck the pole, pulling the cement slab out of the ground, or whether the slab was already above ground level. Claimant testified that he had driven the road daily for three months prior to the accident, but had never noticed the pole or cement slab.

The State is neither an insurer nor a guarantor of the safety of travellers on its roadways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for the respondent to be liable, actual or constructive notice of the defect must be shown. Although the claimant testified that respondent’s crews had worked on part of Route 39/14 prior to the incident, they had not worked in this particular segment. The sole negligence alleged is that respondent had not cut the grass around the slab. There was no evidence that respondent owned or placed the slab at the site, nor that it was on respondent’s right of way. The Court cannot conclude that respondent had notice of the slab, or was otherwise negligent. The claim is denied.

Claim disallowed.