| Volume Number: 30
Category(s): TREES AND TIMBER |
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| Opinion Issued February 5, 2014 | |
| DONNA L. ROY AND ROBERT J. ROY SR. | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-13-0058) | |
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Claimants appeared pro se. C. Brian Matko, Attorney at Law, for Respondent. |
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| PER CURIAM:
Claimant Donna Roy brought this action to recover damages which occurred when her 2012 Chevrolet Cobalt struck a displaced tree along Route 219 near Parsons, Tucker County. Route 219 is a public road maintained by Respondent. The Court is of the opinion to grant an award in this claim for reasons more fully stated below. The facts giving rise to this claim occurred on January 31, 2013, at approximately 6:30 a.m. Claimant testified that upon reaching the top of a small hill she encountered an area of the roadway that was covered by a fallen tree. Claimant stated that the conditions on the date in question were snowy, and the roadway was completely covered. Claimant could not stop before making contact with the tree. As a result of the incident, Claimants’ vehicle sustained damage to it’s body and frame in the amount of $2,319.00. Claimants carried a $500.00 collision insurance deductible amount on the date of the incident; therefore, Claimants are limited to an award in that amount. Respondent argues that it had neither actual nor constructive notice of the road condition on the date of the incident; therefore, it cannot be held liable for Claimants’ damage. 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). Therefore, 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). “Actual notice” is based on direct evidence known by a person or entity while “constructive notice” is defined as "[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of . . .; notice presumed by law to have been acquired by a person and thus imputed to that person." Mace v. Ford Motor Co., 221 W. Va. 198, 653 S.E.2d 660 (2007) (citing Black’s Law Dictionary at 1090 (8th Ed. 2004)). In the instant case, the Court is of the opinion that Respondent had, at the least, constructive notice of risk posed by the fallen tree. The volume of the testimony together with Respondent’s work records leads the Court to conclude that Respondent was negligent. Thus, Claimants may make a recovery for the damage to their vehicle in the amount of their deductible. It is the opinion of the Court of Claims that the Claimants should be awarded the sum of $500.00. Award of $500.00. |
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| Summary: |
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