OPINION ISSUED AUGUST 8, 1988

EDWARD R. ISON AND SHARON G. ISON
VS.
DEPARTMENT OF HIGHWAYS

(CC-88-61)

Claimant Edward R. Ison appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.

PER CURIAM:

On December 25, 1987, claimant Edward R. Ison was operating his 1983
Chevette on
Ferndale Road, near Kenova, Cabell County. At approximately 300 yards
from Route 52, the
vehicle struck a tree blocking the roadway. The vehicle was totalled,
and the claimants seek
$1,500.00.

Claimant Edward R. Ison testified that it was about 9:00 p.m. at the
time of the accident, and it
was raining. He was travelling at approximately 20-30 miles per hour. He
had travelled this route
15 minutes to a half hour before this accident, and he had not observed
the tree then. He
described the tree as a "... Locust tree at least 12 inches in diameter
all the way across the
road." It was up an embankment.

Earnest Tracy Ison, a passenger in the vehicle, confirmed the testimony
of claimant Edward R.
Ison. Samuel C. Workman, who resides near the accident scene, testified
that he had contacted
respondent in reference to problem trees in this vicinity before this
incident.

Donald H. Akers, Wayne County Maintenance Superintendent on December
25, 1987,
testified that he is familiar with this particular section of highway.
He was called on the night in
question, and his crew removed the tree. He had not had any complaints
concerning this tree
prior to claimant's accident.

Proof of actual or constructive notice is required for a showing of
negligence. The evidence in
this record indicates that the dangerous condition appeared suddenly and
that the respondent
promptly moved to take safety precautions as soon as it became aware of
the problem. Moore
vs. Dept. of Highways, (OPINION ISSUED February 19, 1986), and Taylor
vs. Dept. of
Highways, (OPINION ISSUED February 19, 1986). The State is neither an
insurer nor a guarantor
of the safety of the motorists on its highways. The Court is of the
opinion that negligence on the
part of the respondent has not been established and, therefore, the
Court denies this claim.

Claim disallowed.