Annese v. Division of Highways

Claimant Mary Virginia Armese brought this action for damage to her 1995 Volkswagen, which occurred when the vehicle struck a piece of blacktop lying in a road maintained by the respondent in Clarksburg, Harrison County. The Court, on its own motion, amended the style of the claim to reflect the proper parties.

The incident giving rise to this claim occurred on April 14, 1998, at approximately 1:00 p.m. Ms. Armese was driving in the right-hand lane on old US Route 50 westbound towards Clarksburg at approximately 55 miles per hour. Route 50 in this area is a paved, four-lane heavily traveled road. The evidence adduced at hearing established that Ms. Armese’ vehicle struck a piece of asphalt that was lying roughly in the center of her lane. The vehicle sustained damage to both wheels and tires on the driver’s side. The claimant submitted into evidence a number of repair bills in the amount of $514.37. The claimants’ insurance deductible was $250.00.

The piece of blacktop was described as approximately three inches by 12 inches and rectangular in shape. Ms. Armese testified that she did not see it in time to avoid it. She testified that she was unable to swerve because of traffic next to her in the left-hand lane. The respondent’s normal practice was to patrol this road once a day. It was the respondent’s position that it had no prior notice of this particular road defect.

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). The general rule is that the respondent will not be held liable for defects of this type unless the claimant can show that the respondent had actual or constructive notice. Accordingly, the Court has held that the *163unexplained presence of debris on a road, without a positive showing of negligence, is insufficient evidence upon which to base an award. The Court is not unsympathetic to the claimant’s position. However, in view of the foregoing, the Court is constrained by the evidence to deny the claim.

Claim disallowed.