Burgess v. Department of Highways

PER CURIAM: On February 28, 1982, an automobile owned by the claimants and driven by Arlene Burgess struck potholes in Route 119 near Marmet, West Virginia, damaging two tires and their [161] rims. The claimants assert that the accident was caused by respondent’s negligence, and seek damages in the sum of $169.22. The State is neither an insurer nor a guarantor of the safety of motorists travelling on its highways. Adkins v. Sims, 130 W.Va. 645 (1947); Lowe v. Department of Highways, 8 Ct.Cl. 210 (1971). Therefore, a claimant must prove that the respondent failed to conform to a standard of “reasonable care and diligence. . .under all the circumstances.” Parsons v. State Road Commission, 8 Ct.Cl. 35 (1969). In the instant case, the potholes were located on the right-hand edge of the pavement, and they were filled with water. There is no evidence that the respondent had either actual or constructive notice of those potholes. See Davis v. Department of Highways, 12 Ct.Cl. 31 (1977); Swift v. Department of Highways, 10 Ct.Cl. 56 (1974). Accordingly, the evidence is not sufficient to establish negligence on the part of the respondent, and this claim must be denied. Claim disallowed.