W. Dale Greene and Paul Zakaib, Jr., Attorneys at Law, for claimants.
Andrew Lopez, Attorney at Law, for respondent.


Between 12:30 p.m. and 1:00 p.m., on July 5, 1980, Earl Jeffries,
accompanied by Donnie
McIe, was operating his pickup truck in a southerly direction on Route 4
and 20, Rock Cave,
Upshur County. A large tree fell over on top of the pickup truck,
causing the death of the driver,
Earl Jeffries, and causing claimant Donnie McIe to be paralyzed.

It is the claimants' position that the aforementioned tree was close
enough to respondent's right
of way to be a hazard. Furthermore, claimants contend that respondent
had both actual and
constructive notice of this hazard.

According to the testimony of Donnie McIe, he, Earl Jeffries and Mike
Bond were going to
French Grove to Roscoe Gregory ' s used car lot at about noon on the day
of the accident.
When they reached the garage, it was sprinkling and cloudy. Roscoe was
not at the used car lot.
Claimant McIe, Earl Jeffries and Mike Bond left Roscoe Gregory's used
car lot and proceeded
to the Pioneer, a bar. Claimant and Earl Jeffries stayed at the bar to
have beer. When they left
the Pioneer, Mike Bond did not come with them. McIe stated that it was
not raining when they
went into the Pioneer, nor was it raining when they came out of the

McIe testified that it was no more than a mile from the Pioneer to the
point where the tree fell
on the truck. Route 20 is a two-lane asphalt road. At the point where
the tree fell on the truck,
McIe said that the road was uphill and in a curve. McIe does not
remember anything about the
weather other than that it was raining. He does not remember whether it
was windy at the time
that the tree fell on the truck.

There is conflicting evidence concerning the location of the tree in
reference to respondent's
right of way. Grover Cleve Withers, who had stayed at his mother's farm
in the area of the
accident on July 5, 1980, testified that the tree was within 10 feet,
possibly a little more, off of
the travel portion of Route 20. Withers also mentioned that there was
'severe wind' on July 5,

William C. Gambell, Chief of the Engineering Plans and Maps Unit of the
Right of Way
Division of respondent researched the 1924 plans for the vicinity near
French Creek Farm Hill.
Gambell testified that an order of the County Court pertaining to a road
known as Buckhannon -
Cleveland had been issued stating that there is a right of way so
acquired in the width of 40 feet.
The property was assessed in the name of C. D. Haynes in 1923, although
the plans were in the
name of C. E. Haines. Gambell further testified that absent any right of
way obtained by a deed
or by order, a statute width of 40 feet would apply to Route 20, a
primary highway or Class A
road. Gambell ascertained that the distance from the center line of the
roadway to the stump of
the tree is 32.5 feet.

Bernard Morrison, Survey Party Chief for respondent stated that he did
a survey of Route 20
south of French Creek Game Farm on March 24, 1983. Morrison explained
that he obtained
the measurements for the tree stump by topographic controls. He set up a
control point and
turned an angle at a distance to the location of the stump in relation
to his base line. He
determined that the stump is 42 inches in diameter and is located 12 1/2
feet from the right of
way and 22 1/2 feet from the base line.

Claude C. Blake, claims investigator for respondent, had indicated in
his interrogatories dated
November 30, 1984 that the tree in question was 5 1/2 feet off the State
right of way. Blake
testified that his answer was based on the survey of Bernard Morrison.
At the time, Blake felt
that they were assuming a 30-foot right of way instead of 20 feet.

The testimony was not conclusive in respect to whether or not the tree
in question was a dead
tree and therefore a hazard. Although claimant introduced some testimony
that the tree which fell
was a dead tree, respondent introduced evidence showing that the tree
was a green and healthy
one. Two employees of respondent, including an Operator II and an
equipment operator,
testified that the tree was dead or partly dead. Another man employed by
respondent until 1977
testified that he had been part of a crew in 1973 or 1974. The crew had
removed a sugar maple
that was rotten. The tree in question was near the tree which had been
removed. This individual
felt it was as rotten as the tree that they had cut down. Mr. Oscar
Friend, a longtime resident of
the area stated that the tree was rotten and that he had informed Gene
Powers, Assistant
Maintenance Supervisor for Upshur County, of that fact. Gene Powers
testified that there were
green leaves on the tree and that he had not received a complaint about
the tree. Richard Ralph
Walton, respondent's boss of a small garage at Kanawha Head in 1976,
stated that he had not
heard any complaints about this particular tree.

This Court refused recovery in a claim wherein damage occurred to a
vehicle when the vehicle
struck the limb of a live tree growing on the State right of way when
respondent lacked
knowledge of the hazardous condition.

This was a live tree and there is nothing in the record to show that
the respondent had
knowledge of the hazardous condition, or should have known or foreseen
that it might occur.
Neither was there any notice to the respondent that the limb was broken
until that information
was furnished by the claimant. While the respondent in such a case may
not unreasonably delay
the removal of a hazardous obstruction upon a State highway, neither
will liability arise until the
respondent knows or should know that such a hazard exists. The law in
West Virginia is well
established that the State is not an insurer of its highways, and if
there is not preponderant proof
of negligence on the part of the State's employees, the user of the
highway travels at his own
risk. Widlan v. Dept. of Highways, 11 Ct. Cl. 149 (1976). The evidence
in the instant claim
consists of the testimony of several individuals. This Court cannot
conclusively determine the
condition of the tree. However, the Court is of the opinion that the
tree was not a completely
dead tree for there was evidence at the time of the incident that there
were, in fact, leaves on the
limbs of the tree.

There is no dispute between the parties that the tree stump of the tree
is not located on the
State's right of way. The stump was determined to be approximately 32
feet from the centerline
of Route 20.

In Wolford v. Dept. of Highways, 13 Ct.Cl. 348 (1981), a tree case in
which recovery was
permitted, the distance of the tree from the middle of the highway was
either 14 feet, 2 inches or
22 feet, 3 inches. The Court stated that "it is impossible...to judge
whether the tree was or was
not on the State right of way without resorting to speculation. In any
case, the tree was close
enough to the road to present a definite hazard." (Emphasis supplied.)
The estimate of the
distance of the stump from the centerline of the road in the case a hand
is 32.5 feet. The Court is
of the opinion that the tree which fell on the vehicle was not close
enough to the respondent's
right of way so as to pose a hazard which should have been apparent to
the respondent and,
therefore, denies these claims.

Claim disallowed.