Motorists Mutual Insurance v. Department of Highways

PER CURIAM: [65] This action was filed to recover the cost of repair to a 1980 Chevrolet Fleetside half-ton pickup truck, which occurred as the result of an accident on August 10, 1986. Claimant insurance company paid Noah Thomas and his wife, Dreama Thomas, its insureds, $3,200.00, for which it presently makes this claim. Claimant's insured was travelling on Whiteman Ford Road in the vicinity of Elkview, Kanawha County, at approximately 7:00 p.m. The road was wet at the time of the accident, there had been a heavy rain earlier. The highway has a gravel surface and is wide enough for two vehicles to pass each other in opposite lanes of travel. The claimant's insured stated that there were several big holes in the middle of the road. As the vehicle which he was operating passed through the area, the right side of the road collapsed, and the truck went over the bank and flipped on its side. Claimant was travelling at about 7-10 miles per hour at the time of the accident. The bank is six to seven feet high. Mr. Calvert Mitchell, Supervisor for the Elkview headquarters of respondent, testified that there had been no complaints concerning the imminent collapse of this road. He had been on this highway prior to the accident and had not noticed anything wrong with the road. Mr. Nelson Fowler, Maintenance Assistant to the District Maintenance Engineer for respondent, testified that he is familiar with the road at the accident site. He had received no complaints prior to the accident that the road wa sin imminent danger of collapsing. He further stated that to his knowledge no one employed by respondent had been contacted regarding the possibility that this roadway might collapse. The State is neither an insurer nor a guarantor of the safety of persons travelling on its highways. Adkins vs. Sims, 130 W.Va. 645 (1947). For negligence of the respondent to be shown, proof of notice of the defect in the road is required. Davis Auto Parts vs. Dept. of Highways, 12 Ct.Cl. 31 (1977). In this case, there was no evidence that respondent knew or should have known of the propensity of the road to collapse. The Court must, therefore, disallow the claim. Claim disallowed.