Wendt v. Division of Highways

Claimant brought this action for vehicle damage which occurred when his 2003 Buick Century went into a slip in the road while traveling west on County Route 94 in Marshall County. County Route 94 is a road maintained by respondent. The Court is of the opinion to deny the claim for the reasons more fully stated below.

The incident giving rise to this claim occurred at approximately 6:30 p.m. on December 11, 2004, a clear and dry evening. County Route 94 is a two-lane highway at the area of the incident involved in this claim. Claimant testified that he was driving between twenty and twenty-five miles per hour when his vehicle struck a slip in the *57road that he had not seen. Mr. Wendt stated that the slip was in his right lane and was approximately six inches deep, twenty five to thirty feet long, and was about as wide as the lane of traffic. Claimant’s vehicle sustained damage to the radiator totaling $544.84. Claimant’s insurance deductible was $500.00.

The position of the respondent is that it did not have actual or constructive notice of the condition on County Route 94 at the site of the claimant’s accident for the date in question.

Chris Minor, Highway Administrator II for the respondent in Marshall County, testified that his office was first made aware of a slip along County Route 94 sometime on December 11, 2004, the date of claimant’s incident. Mr. Minor stated that the slip occurred as a result of heavy rains that occurred for several months prior to claimant’s incident. Mr. Minor stated that he had no way of knowing when his office was made aware of the slip in County Route 94.

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, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman us. Dept. of Highways, 16 Ct. Cl. 103 (1986).

In the instant case, the evidence established that the respondent did not have actual or constructive notice of a slip in County Route 94 prior to the incident in question. Consequently, there is insufficient evidence of negligence upon which to justify an award. Thus, the claimant may not make a recoveiy for his loss in this claim.

In view of the foregoing, the Court is of the opinion to and does deny this claim.

Claim disallowed.