Wilcox v. Department of Highways

PER CURIAM: On February 16, 1982, an automobile owned and operated by the claimant struck a pothole on North Kanawha, a street located in Beckley, West Virginia, and maintained by the respondent. As a result of striking the pothole, the automobile sustained damage to the right front tire and was knocked out of alignment. The claimant asserts that the accident was caused by the respondent’s negligence, and seeks damages in the sum of $116.28. The State is neither an insurer nor a guarantor of the safety of motorists travelling on its highways. Adkins v. Sims, 130 [167] W.Va. 645 (1947); Lowe v. Department of Highways, 8 Ct.Cl. 210 (1971). A claimant must prove that the respondent failed to conform to a standard of “reasonable care and diligence in the maintenance of a highway under all the circumstances.” Parsons v. State Road Commission, 8 Ct.Cl. 35 (1969). In the instant case, the pothole was located on the claimant’s right-hand side of the pavement and was filled with water. There is no evidence that the respondent had either actual or constructive notice of the pothole. 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.