West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued February 14, 2013
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for Respondent.
      Claimant, Amos Bunner, brought this action for vehicle damage which occurred when his 2003 Chevrolet Silverado was struck by a tree while traveling along Cunningham Road in Pennsboro, Ritchie County. Cunningham Road is a public road maintained by Respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 6:15 a.m. on January 27, 2012. Claimant testified that while traveling to work along Cunningham Road he noticed that a tree along the side of the roadway was leaning onto the roadway. Realizing that the tree was going to fall, Claimant stated that he pressed the brakes and came to a stop; however, Claimant was unable to avoid contact with the tree. Claimant stated that two other people had contacted Respondent concerning the tree before the date of the incident. As a result of its contact with the tree, Claimant’s vehicle sustained a total loss in the amount of $9,500.00. Claimant had liability insurance only on the date of the incident.
      The position of Respondent is that it did not have actual or constructive notice of the tree along Cunningham Road on the date of the incident.
      The well-established principle of law in West Virginia is that the State is neither an insurer nor a 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 hold the Respondent liable for road defects of this type, the Claimant must prove that the Respondent had actual or constructive notice of the defect and a reasonable amount of time to take corrective action. Pritt v. Dep’t of Highways, 16 Ct. Cl. 8 (1985); Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986).
      In the instant case, the Court is of the opinion that Respondent had actual notice of the tree which struck Claimant’s vehicle and that the tree presented a hazard to the traveling public. The Court is satisfied with the testimony that other people had previously notified the Respondent, including a bus driver, that the tree was close to falling. Based upon the testimony, the Court finds that the negligence of Respondent was the proximate cause of the damage to Claimant’s vehicle, and Claimant may make a recovery for the damage.
      It is the opinion of the Court of Claims that Claimant should be awarded the sum of $9,500.00.
      Award of $9,500.00.

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