Light v. Department of Highways

RULEY, JUDGE: In late March, 1977, an .automobile owned and operated by the claimant struck a pothole on Route 19 between Morgan-town and Westover, bending the rim of the right front wheel, causing a flat tire, breaking a shock absorber, and knocking the front end out of alignment, for which the claimant seeks $131.00 in damages. The State is neither an insurer nor a guarantor of the safety of persons travelling on its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). For negligence of the Department of Highways to be shown, proof that the respondent had actual or constructive notice of the defect in the road' is required. Davis Auto Parts v. Department of Highways, 12 Ct. Cl. 31 (1977); Lowe v. Department of Highways, 8 Ct. Cl. 210 (1971); Varner v. Department of Highways, 8 Ct. Cl. 119 (1970). There is no evidence in the record of any notice to the respondent, and the simple existence of a defect in the road does not establish negligence per se. See Bodo v. Department of Highways, 11 Ct. Cl. 179 (1977), and Rice v. Department of Highways, 12 Ct. Cl. 12 (1977). This claim must be denied. Claim disallowed.