Shields v. Division of Highways

Claimant brought this action for vehicle damage sustained when her vehicle struck a hole while she was traveling on Indian Creek Road near its junction with Route 16. Indian Creek Road is a road maintained by respondent in Wyoming County. The Court is of the opinion to make an award in this claim for the reasons more fully set forth below.

The incident giving rise to this claim occurred on November 28, 1997, at approximately 2:00 to 3:00 p.m. On the clear day in question, claimant was proceeding along a curvy two-lane section of Indian Creek Road in her 1997 Cadillac at a speed of twenty-two to twenty-seven miles per hour towards Welch, for a doctor’s office visit.1 Claimant rarely uses this route and was last on the road about five to six months prior to the incident. Suddenly, the vehicle struck a fourteen inch diameter hole in the road surface, three inches deep, and about one foot from the edge of the pavement. The impact burst a tire and bent the wheel rim. The vehicle sustained damage in the amount of $596.48. Within claimant’s motor vehicle insurance policy, there is a deductible feature of $1,000.00.

The well established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman vs. Dept. of Highways, 16 Ct. Cl. 103 (1986).

The evidence adduced at the October 28, 1999, hearing established that the hole on Indian Creek Road was not one that was a recent occurrence. The Court is *157of the opinion that respondent, at the least, had constructive notice that a hole in that condition was a hazard to the traveling public. Consequently, there is sufficient evidence of negligence upon which to base an award.

In view of the foregoing, the Court is of the opinion to and does make an award in this claim in the amount of $596.48.

Award of $596.48.