MacKnight v. Department of Highways

WALLACE, JUDGE: This claim, originally filed against the respondent by Frances J. MacKnight, was amended by the Court substituting James C. MacKnight, husband of Frances J. MacKnight, as claimant. On or about May 1, 1978, Frances J. MacKnight was driving her husband’s 1977 Ford Pinto automobile southerly on W.Va. Route 62 in Mason County, West Virginia-, taking her daughter to band practice at the high school. The weather was clear and the highway was dry. She had stopped at the traffic light located at the Pomeroy Mason County Bridge, and had started again, proceeding at approximately 15-20 miles per hour. Just before she reached the high school, the automobile struck a pothole in the highway, damaging a tire and rim. Mrs. MacKnight testified that she travelled this road five to six times a week and that she knew the hole was there. This Court has held many times that the State is not a guarantor of the safety of its travellers on its roads and that the user of the highways travels at his own risk. Adkins v. Sims, 130 W.Va. 645, 64 S.E. 2d 81 (1947); Parsons v. State Road Comm’n., 8 Ct. Cl. 35 (1969). Further, the record does not establish that the respondent had notice of a defect in the highway. For the State to be found liable, it must have had either actual or constructive notice of the defect in the highway. Keith v. Dept. of Highways, 12 Ct. Cl. 199; Bradshaw v. Dept. of Highways, 12 Ct. Cl. 187. Accordingly, the Court disallows this claim. Claim disallowed.