Kaplan v. Department of Highways

This claim was originally filed in the name of Allen Kaplan, but when the testimony established that the damaged vehicle, a 1984 BMW 318-1, was titled in the name of Allen Kaplan and his mother, Pauline Kaplan, the Court, on its own motion, amended the style of the claim to reflect that fact.

On March 24, 1984, the claimant was driving his vehicle on 5th Avenue in Huntington, West Virginia, when he struck a pothole. The left front rim was damaged. The claimant testified that he drove the road daily, but had not noticed the pothole. He had no knowledge as to how long the pothole had been in existence.

The State is neither an insurer nor a guarantor of the safety of travellers on its highways. Adkins v. 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 of the defect must be shown. As there was no evidence of notice to respondent, the claim must be denied.

Claim disallowed.