Ellis v. Division of Highways

PER CURIAM: Claimants Lorenza L. Ellis and Janenne Elaine Ellis seek an award from the Division of Highways for property damage sustained to their 1990 Plymouth Laser in a single-vehicle accident which took place at about 1425 hours on the 14th day of February, 1992, on Maple Drive in Monongalia County, West Virginia, in the town of Morgantown. From the evidence adduced at the hearing on October 15, 1992, it appears that the claimant, Janenne Ellis, was operating claimants’ automobile on Maple Drive when it hit two potholes which caused damage to the automobile. The cost of repair was in the amount of $ 125.00 for damage to the vehicle, which centered on the front passenger side tire. Claimant, Janenne Ellis, testified that she was traveling at a speed of approximately 25 miles per hour on Maple Drive, a public road which she travels on every day, and that as she approached a narrow section of the road, another vehicle had pulled into the road and forced her towards the right side of the road, where her vehicle hit two very large holes in the road surface, and broke the hub cap and clips off the front passenger wheel and also bent the rim on the wheel. She testified that these holes were approximately four to five inches deep and eighteen to twenty-four inches in diameter; that they were visible before the accident; and, that she had noticed them prior to that date. She also stated that three and one-half weeks after she filed this claim the holes were repaired. For the respondent, Aaron Gibson, who has been the Supervisor for Monongalia County Division of Highways for the last three years, testified that he had received no complaints of the holes in the road prior to this accident and that respondent had not repaired the holes after the accident, but that somebody else, possibly a utility company must have made the repairs. The Court finds, as a matter of fact, that the claimant had actual knowledge of the holes in the road surface due to the fact that she frequently traveled on that particular road; that [206] respondent was negligent in its maintenance of the road based upon the size and depth of the holes in the road; but the Court is of the opinion that claimant’s own negligence was equal to or greater than that of the respondent. Therefore, the claim will be denied under the doctrine of comparative negligence. Claim disallowed.