Russell v. Department of Highways

PER CURIAM: On February 17, 1982, claimant Eldean Russell was operating her 1976 Ford Torino automobile on State Route 3 in Comfort, West Virginia, when the right front and right rear tires struck a pothole causing damage to the right rear tire. The claimant testified that the damage was in the amount of $98.00. The law of West Virginia is well established that the State is neither an insurer nor a guarantor of the safety of travellers on [166] its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947), Parsons v. State Road Commission, 8 Ct.Cl. 35 (1969). There is no evidence in the record of any prior notice to the respondent. The existence of road defects without notice to the respondent is not sufficient to establish negligence. Proof that the respondent had notice of the defect in the road is necessary. Lowe v. Department of Highways, 8 Ct.Cl. 210 (1971). As the claimant lived near the area where the pothole was located and was familiar with the pothole, the claimant herself was guilty of negligence which equalled or surpassed that of the respondent. Accordingly, the Court must disallow this claim. Claim disallowed.