McDowell v. Department of Highways

PER CURIAM: This claim was filed for damages incurred by claimants’ 1976 Volkswagen Rabbit when it struck a pothole on Route 19 near Fair-mont, Marion County, West Virginia. The pothole was located on the Bellview Bridge. The incident occurred on December 12, 1983. Damages to the vehicle amounted to $252.79. Claimant, Donna R. McDowell, testified that she drove over the bridge twice a day and was aware of a number of potholes there. She stated that potholes had been fixed periodically on the bridge for approximately six months prior to the incident, but that the holes recurred. The State is neither an insurer nor a guarantor of the safety of motorists on its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order for the respondent to be found liable for damages caused by the pothole, proof of actual or constructive notice of the defect must be shown. Davis Auto Parts vs. Dept. of Highways, 12 Ct.Cl. 31 (1977). Although constructive notice of the pothole was present in this case, claimant’s prior knowledge of the condition of the bridge makes her likewise negligent. Under the doctrine of comparative negligence, the Court finds that this negligence was equal to or greater than respondent’s, and disallows the claim. Claim disallowed.