Smith v. Department of Highways

Claimant alleges in his Notice of Claim that on May 26, 1984, at ap*251proximately 6:30 p.m., he was travelling on Route 33 in Mason County, West Virginia, when his vehicle struck a pothole. Damage to a wheel, tire, and hubcap amounted to $286.68.

At the hearing, the claimant testified that a truck had overturned about one hundred yards from the pothole, and traffic was flagged around the accident by civilians at the scene. Upon his return to the right-hand lane, the claimant’s 1981 Oldsmobile struck the hole.

The next morning, the claimant and his brother returned to the site and examined the pothole. Claimant estimated the size to be three feet long and three to four inches deep.

In order for liability to exist on the part of the respondent, it must be shown that the respondent had actual or constructive notice of the hazard which caused the damage. Davis v. Dept. of Highways, 11 Ct.Cl. 150 (1976). No evidence of notice was presented in the record of this case; therefore, no negligence can be established, and the claim must be denied.

Claim disallowed.