West Virginia Legislative Claims Commission

Volume Number: 29
Category(s): BERMS
Opinion Issued October 26, 2011
     Claimants appeared pro se.
     Michael J. Folio, Attorney at Law, for Respondent.
      Claimants brought this action for vehicle damage which occurred when their 2006 Ford Taurus was struck by a falling tree on US Route 52 near Kimball, McDowell County. Route 52 is a public road maintained by Respondent. The Court is of the opinion to deny this claim for the reasons more fully stated below.
      The incident giving rise to this claim occurred at approximately 5:10 p.m. on May 5, 2010. US Route 52 is a two-lane paved road with a double-yellow center line and white lane lines. At the time of the incident, Claimant Clifford Rotenberry was driving north towards Welch, with his brother as a passenger in the vehicle. Mr. Rotenberry testified that as he rounded a curve a small tree fell from the right cliff bank adjacent to the road onto the front right side of his vehicle. As a result of this incident, Claimants’ vehicle sustained damage to right front fender in the amount of $1,468.53. Since Claimants’ insurance declaration sheet indicates that their collision deductible is $500.00, Claimants’ recovery is limited to that amount.
      It is the Claimants’ position that Respondent knew or should have known about the possibility of tree falls on Route 52 which created a hazardous condition to the traveling public and that Respondent was negligent in failing to properly maintain Route 52 or provide proper warning to the traveling public of a known hazardous condition prior to the incident.
      The position of the Respondent is that it did not have actual or constructive notice of the potential for a falling tree on Route 52 at the time of the incident. Douglas A. Berkel, an investigator for the Respondent’s Legal Division, testified that he is familiar with the location of Claimants’ accident. Berkel testified that Respondent’s right-of-way extends 20 feet from the center line, and that the offending tree’s stump was located 53 feet from the center line, and thus, outside of Respondent’s right-of-way.
      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 Respondent liable for road defects of this type, Claimants must prove that 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 cases involving falling trees or tree limbs, the Court has held that respondent is liable for dangerous trees or tree limbs on its property or rights-of-way. Wiles v. Division of Highways, 22 Ct. Cl.170 (1999). The general rule is that if a tree is dead and poses an apparent risk then the respondent may be held liable. However, where a healthy tree or tree limb falls as a result of a storm and causes damage, the Court has held that there is insufficient evidence upon which to justify an award. Gerritsen v. Dept. of Highways, 16 Ct. Cl. 85 (1986).
      In the instant case, the Court is of the opinion that Respondent did not have actual or constructive notice of the fallen tree on Route 52 on or prior to the day in question. The evidence adduced at hearing indicated that the tree was not located within Respondent’s right-of-way. The Court will not place a burden on Respondent with respect to trees surrounding its highways unless the tree poses an obvious hazard to the traveling public. While the Court is sympathetic to Claimants’ loss, the Court has determined that there is insufficient evidence of negligence upon which to base an award.
      In view of the foregoing, the Court is of the opinion to and does deny this claim.
      Claim disallowed.

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