| Volume Number: 30
Category(s): TREES AND TIMBER |
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| Opinion Issued May 23, 2014 | |
| ERIC C. CRAWFORD | |
| VS. | |
| DIVISION OF HIGHWAYS | |
| (CC-12-0439) | |
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Claimant appeared pro se. C. Brian Matko, Attorney at Law, for Respondent. |
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| PER CURIAM:
Claimant, Eric Crawford, brought this action to recover damages which occurred when his 2006 Dodge Magnum was struck by a fallen tree limb while traveling along Route 102 near Nemours, Mercer County. Route 102 is a public road maintained by Respondent. The Court is of the opinion to deny an award in this claim for reasons more fully stated below. The facts giving rise to this claim occurred on August 3, 2012, at approximately 6:15 p.m. Claimant testified that on the date in question he pulled out of his driveway and proceeded along Route 102. Just before the Virginia border, Claimant encountered an “S” curve that contains numerous large trees with branches that hang over the roadway. Claimant stated that upon entering the “S” curve a large branch broke and fell onto the embankment before striking his vehicle. Claimant was familiar with the condition of the roadway on the date in question, having driven the roadway numerous times. Claimant asserts that Respondent should have known of the likelihood of tree limb breaking and striking a vehicle. As a result of this incident, Claimant’s vehicle sustained extensive damage to it’s body in the amount of $3,368.12. Claimant carried $500.00 collision insurance deductible amount on the date of the incident. Respondent argues that it had neither actual nor constructive notice of a dangerous condition involving trees situated along the roadway in question. Therefore, Respondent asserts that it cannot be held liable. 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, 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). “Actual notice” is based on direct evidence known by a person or entity. “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)). Thus, a party’s precise knowledge or state of mind concerning a situation often cannot be determined by direct evidence, but instead be shown indirectly by circumstantial evidence. In the instant case, the Court is of the opinion that Respondent did not have actual or constructive notice of a dangerous condition along Route 102. Claimant presented no evidence with respect to Respondent’s knowledge. Therefore, Claimant may not recover for his damages. Based on the foregoing, it is the opinion of the Court of Claims that Claimant’s claim should be, and is hereby, denied. Claim disallowed. |
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| Summary: |
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