Adams v. Department of Highways

PER CURIAM: At approximately 7:00 a.m. on May 16, 1982, claimant was driving along Route 11/11 in Upshur County, West Virginia, [215] a road owned and maintained by the respondent, when his right front tire struck an object in the road and went flat. Claimant got out to investigate and discovered a small cut in the side of the tire. He then walked back to examine the road and recognized it as having been recently graded. A photograph introduced into evidence shows a jagged metal protrusion in the road, which the claimant described as a part of a culvert yanked up during ditching operations. Testifying on behalf of the respondent was Veril C. Powers, the Upshur County Superintendent for the Department of Highways. Mr. Powers stated that, prior to the date of the claimant’s accident, he had received no phone calls or complaints that a culvert was damaged at that location on Route 11/11. The law of West Virginia is well settled that the State is not a guarantor of the safety of motorists upon its highways; its duty is one of reasonable care and diligence in the maintenance of a highway under all circumstance. Parsons v. State Road Comm’n., 8 Ct.Cl. 35 (1969); Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In the instant case, claimant’s testimony concerning the grading of Route 11/11 was unrefuted. While there was no evidence that the respondent had actual notice of the fact that there was a defect in the road, the Court believes that the respondent failed in its duty to use reasonable care in the maintenance thereof. This failure was the proximate cause of the damages suffered by the claimant. Claimant’s Notice of Claim indicates the sum of $120.00 in damages. Submitted into evidence was an invoice from Alker Tire & Supply of Buckhannon in the amount of $402.91 for the purchase of four new tires, balancing, and the cost of two valves. As the actual damage to claimant’s vehicle resulting from the incident in question was to one tire only, the Court hereby awards the claimant $89.54 for one new tire, $2.89 in excise tax, $3.00 for balancing, and $1.00 for the valve, for a total award of $96.43. Award of $96.43.