Moss v. Department of Highways

Claimant seeks $102.97 for the replacement of two tires on his 1980 Dasher station wagon, which were damaged when claimant struck a pothole on Doc Bailey Road, near Cross Lanes, Kanawha County, West Virginia. The incident occurred on December 12, 1983, at about 9:30 p.m. Claimant testified that Doc Bailey Road is a narrow, two-lane road. He encountered the pothole in a curve, and, as there was on-coming traffic, he could not avoid the hole. He stated he had not driven the road for “a couple months” and was not aware of the pothole.

The State is neither an insurer nor a guarantor of the safety of persons travelling on its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E. 2d 81 (1947). For the respondent to be found liable for damages caused by road defects of this type, the claimant must prove that respondent had actual or constructive notice of the defect. As there was no such evidence presented, the claim must be denied.

Claim disallowed.