IN THE LEGISLATIVE CLAIMS COMMISSION OF THE STATE OF WEST VIRGINIA

SANDRA J. BURDETTE

v.

WEST VIRGINIA DEPARTMENT OF TRANSPORTATION,

DIVISION OF HIGHWAYS

(CC-19-1265)

Claimant appeared pro se.

Chad M. Cardinal, Attorney at Law, for the Respondent.

PER CURIAM:

The Claimant brought this action to recover for damages to her vehicle. A hearing was held before the Legislative Claims Commission on January 24, 2020.

At the hearing, the Claimant testified that on August 27, 2019, she was driving her 2015 Toyota Prius on Interstate 64 West in Charleston, Kanawha County. As she was driving, she encountered a large chunk of what appeared to be blacktop in her lane of travel. The Claimant testified that she was unable to change lanes because of heavy traffic and was forced to hit it with her vehicle. She heard a large noise and continued driving. As she approached her final destination, she began to smell gas fumes; she noticed gas leaking from her vehicle once she arrived at her destination. The claimant testified that her gas tank was damaged extensively and a new tank was installed in her vehicle. She drove a rental car while her vehicle was repaired. The Claimant claimed damages in the amount of $396.92, which represented the amount of her collision insurance deductible, an amount for the gasoline that leaked out of her vehicle as a result of this incident and the portion of the rental car costs for which she was responsible. Her collision insurance required a deductible of $250.00. The Claimant testified that she notified the Respondent of the large chunk of blacktop in the road following her incident but did not know whether anyone else had notified the Respondent before her incident occurred.

The Respondent denied the validity of the claim in its pleadings and at the hearing. The Respondent further asserted that it had no notice of any objects, including large chunks of rock or blacktop, in the traveling portion of the road on this date in this location. Accordingly, the Respondent argued that it should not be held liable to the Claimant in this claim.

The well-established principle of law in West Virginia is that the State is neither an insurer nor guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to find the Respondent liable in this matter, the Claimant must prove that the Respondent had either actual or constructive notice of the road defect and a reasonable amount of time to correct the defect. Pritt v. Dep’t of Highways, 16 Ct. Cl. 8 (1985); Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986).

In accordance with the prior decisions of the Legislative Claims Commission, “actual notice” is based on direct evidence known by a person or entity while “constructive notice” is defined as “[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of . . .; notice presumed by law to have been acquired by a person and thus imputed to that person.” Mace v. Ford Motor Co., 221 W. Va. 198, 653 S.E.2d 660 (2007) (citing Black’s Law Dictionary at 1090 (8th Ed. 2004)). A party’s precise knowledge or state of mind concerning a situation often cannot be determined by direct evidence but must instead be shown indirectly by circumstantial evidence.

The Legislative Claims Commission hereby finds that, based on the evidence presented, including the Claimant’s testimony, the Respondent, Division of Highways, did not have actual or constructive notice of the large chunk of blacktop situated on Interstate 64 West in Charleston, Kanawha County, on the date of the Claimant’s incident. The case law is clear that where the Respondent, Division of Highways, has no prior notice of a road defect, including rocks or other chunks of road material, in the roadway, liability cannot be assessed against it. The Claimant did not provide sufficient evidence to the Claims Commission to establish that the Respondent knew or should have known about the rocks that were in the traveling portion of the roadway.

Based on the foregoing, the Legislative Claims Commission is of the opinion to, and does hereby, deny the Claimant’s claim.

Claim disallowed.