West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued September 15, 2011
     Claimant appeared pro se.
     Michael J. Folio, Attorney at Law, for Respondent.
      Claimant William Keck brought this action for vehicle damage which occurred when his 2005 Kia Sedona struck a tree on WV Route 61 near Montgomery, Fayette County. WV Route 61 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 2:00 a.m. on July 30, 2010. West Virginia Route 61 is a two-lane paved road with one lane of traffic in each direction and a speed limit of 45 miles per hour. At the time of the incident, Claimant was returning home from Montgomery, where he had gone to buy cigarettes for himself and his wife. According to the Claimant, when he drove to Montgomery less than 15 minutes prior to the incident the road was clear. However, as he drove away from Montgomery, he encountered a tree that had fallen onto the road, across all the lanes, from the left bank. Claimant testified that he crested a hill on the road at 45 miles per hour when he first saw the tree about 15 feet in front of him. Claimant stated that he attempted to stop, but was unable and his vehicle struck the tree, approximately 18 inches in diameter. As a result of this incident, Claimant’s vehicle sustained damage to the front end in the amount of $550.00. Claimant has a $250.00 collision deductible on his motor vehicle insurance.
      It is the Claimant’s position that Respondent knew or should have known about fallen tree on WV Route 61 which created a hazardous condition to the traveling public and that Respondent was negligent in failing to properly maintain the trees along WV Route prior to the incident.
      The position of the Respondent is that it did not have actual or constructive notice of the decaying or fallen trees on or alongside WV Route 61 at the time of the incident. Respondent presented no witnesses.
      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, Claimant 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.
      In the instant case, the Court is of the opinion that Respondent did not have notice of the condition of the tree prior to the incident on WV Route 61. Claimant failed to demonstrate that Respondent should have been aware that the tree potentially posed a danger to the traveling public prior to its falling in the early morning hours on the date of this incident, thus, Respondent cannot be held liable for Claimant’s damages.
      In view of the foregoing, the Court is of the opinion to and does deny this claim.
      Claim disallowed.

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