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West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): TREES AND TIMBER
Opinion Issued May 23, 2014
ADAM L. MARTIN AND LISA MARTIN
VS.
DIVISION OF HIGHWAYS
(CC-10-0508)
     Claimants appeared pro se.
     C. Brian Matko, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimants, Adam Martin and Lisa Martin, brought this action to recover damages which occurred when their 1998 Pontiac Sunfire struck a fallen tree while Claimant Adam Martin was traveling along Route 92, Harrell Road, near Nestorville, Barbour County. Harrell Road 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 Juley 12, 2010, at approximately 5:00 a.m. Claimant Adam Martin was the driver and testified on behalf of the Claimants. Mr. Martin stated that on the morning in question he was traveling to work along Route 92. The conditions that morning were dark and clear. The speed limit along Route 92 is 55 miles per hour, and Claimant testified that he was traveling 55 miles per hour at the time of his incident. Claimant stated that while negotiating a curve he quickly encountered a fallen tree that was laying across both lanes of travel. Claimant testified that he could not stop in enough time to avoid contact with the tree. As a result of this contact, Claimant’s vehicle sustained a total loss in the amount of $5,743.88. Claimant carried liability insurance only on the date of the incident.
      Respondent argues that it had neither actual nor constructive notice of the condition present on along Route 92 on the date in question. Therefore, Respondent maintains that it cannot be held liable in this claim.
      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 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)). A party’s precise knowledge or state of mind concerning a situation often cannot be determined by direct evidence, but must instead be shown indirectly by circumstantial evidence.
      In the instant case, the Court heard no evidence that Respondent had actual or constructive notice of the fallen tree along Route 92 on the morning in question. Therefore, pursuant to the above-cited standard, this Court cannot recommend an award.
      It is the opinion of the Court of Claims that the Claimant’s claim should be, and is hereby, denied.
      Claim disallowed.
     
Summary:
     


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