Ashbury v. Division of Highways

Claimant brought this action to recover for damage sustained by her vehicle, a 1988 Mercury Topaz, when it struck a hole in a road in Berwind, West Virginia in October 1989. It was approximately 4:00 p.m., and it was wet and raining. She was operating her vehicle at about 25 miles per hour. The hole was approximately one foot deep. Claimant was familiar with the hole. It was located on the right side of the lane in which claimant was traveling. A vehicle was *135approaching claimant in the opposite lane. Claimant alleged that she was unable to avid driving through the hole. Her vehicle sustained damage in the amount of $200.00 and her deductible for her insurance of $150.00.

The Court, having reviewed the evidence in this claim, is of the opinion that claimant has established constructive notice on the part of the respondent for the existence of the hole. Claimant testified that the hole appeared to be about one foot deep. A hole of this size in the travel portion of a State road constitutes a hazardous condition. However, the Court is also of the opinion that claimant, having knowledge of this hazardous condition, was also negligent in failing to operate her vehicle so as to avoid proceeding through the hole. Under the doctrine of comparative negligence the Court has determined that both parties were equally at fault for this incident. Therefore, the Court must disallow this claim.

Claim disallowed.