Bowers v. Division of Highways

The claimant brought this action for damage to his 1980 Ford Fiesta which occurred after encountering a hole in a road maintained by the respondent in Hardy County. The Court is of the opinion that the respondent had reason to know of the poor road conditions and makes an award to the claimant as stated more fully below.

*39The incident giving rise to this action occurred on March 1, 1997, between 10 a.m. and 11 a.m. The claimant was driving on Route 23/10 (Trout Run Road) towards Wardensville, approximately half way between Perry and Wardensville. The weather was dry and clear. Route 23/10 in this area is a rock-based low priority road in terms of maintenance. The evidence adduced at hearing was that the claimant encountered a large depression in the road, which caused his windshield to crack vertically near the middle. Estimated repair costs ranged from $123.00 to $250.00. The claimant had liability insurance only; the vehicle has not been repaired.

The hole was described as being located in the middle of the road, and there were several holes in the vicinity. There were no warning signs. The claimant was driving approximately 30 miles per hour when his vehicle struck the hole. The respondent’s evidence established that flooding in September 1996 had washed out several portions of the road and that the respondent had been engaged in stabilization and shoulder work in the area on January 29, February 20, and February 21, 1997.

It is well established that the State is neither an insurer nor a guarantor of the safety of motorists upon its roads. Adkins vs. Sims, 46 S.E.2d 81 (W.Va. 1947). For the respondent to be held liable for defects of this type, the claimant must prove that the respondent had actual or constructive notice. Pritt vs. Dept. of Highways, 16 Ct. Cl. 127 (1985), Hamon vs. Dept. of Highways, 16 Ct. C. 127 (1986). The evidence established that the respondent was aware that the road was in need of repairs in January and February and failed to make adequate repairs to the road surface. Accordingly, the Court is of the opinion to and does hereby make an award in the amount of $123.00.