OPINION ISSUED APRIL 30, 1986
DONNIE LEE MCIE
VS.
DEPARTMENT OF HIGHWAYS
(CC-82-159a)
AND
BETTY J. JEFFRIES, ADMINISTRATRIX OF THE ESTATE OF EARL WILLIAM
JEFFRIES, DECEASED
VS.
DEPARTMENT OF HIGHWAYS
(CC-82-159b)
W. Dale Greene and Paul Zakaib, Jr., Attorneys at Law, for
claimants.
Andrew Lopez, Attorney at Law, for respondent.
WALLACE, JUDGE:
Between 12:30 p.m. and 1:00 p.m., on July 5, 1980, Earl Jeffries,
accompanied by Donnie
McIe, was operating his pickup truck in a southerly direction on
Route 4
and 20, Rock Cave,
Upshur County. A large tree fell over on top of the pickup truck,
causing the death of the driver,
Earl Jeffries, and causing claimant Donnie McIe to be paralyzed.
It is the claimants' position that the aforementioned tree was
close
enough to respondent's right
of way to be a hazard. Furthermore, claimants contend that
respondent
had both actual and
constructive notice of this hazard.
According to the testimony of Donnie McIe, he, Earl Jeffries and
Mike
Bond were going to
French Grove to Roscoe Gregory ' s used car lot at about noon on
the day
of the accident.
When they reached the garage, it was sprinkling and cloudy. Roscoe
was
not at the used car lot.
Claimant McIe, Earl Jeffries and Mike Bond left Roscoe Gregory's used
car lot and proceeded
to the Pioneer, a bar. Claimant and Earl Jeffries stayed at the bar
to
have beer. When they left
the Pioneer, Mike Bond did not come with them. McIe stated that it
was
not raining when they
went into the Pioneer, nor was it raining when they came out of the
Pioneer.
McIe testified that it was no more than a mile from the Pioneer to
the
point where the tree fell
on the truck. Route 20 is a two-lane asphalt road. At the point
where
the tree fell on the truck,
McIe said that the road was uphill and in a curve. McIe does not
remember anything about the
weather other than that it was raining. He does not remember
whether it
was windy at the time
that the tree fell on the truck.
There is conflicting evidence concerning the location of the tree
in
reference to respondent's
right of way. Grover Cleve Withers, who had stayed at his mother's
farm
in the area of the
accident on July 5, 1980, testified that the tree was within 10
feet,
possibly a little more, off of
the travel portion of Route 20. Withers also mentioned that there
was
'severe wind' on July 5,
1980.
William C. Gambell, Chief of the Engineering Plans and Maps Unit
of the
Right of Way
Division of respondent researched the 1924 plans for the vicinity
near
French Creek Farm Hill.
Gambell testified that an order of the County Court pertaining to
a road
known as Buckhannon -
Cleveland had been issued stating that there is a right of way so
acquired in the width of 40 feet.
The property was assessed in the name of C. D. Haynes in 1923, although
the plans were in the
name of C. E. Haines. Gambell further testified that absent any
right of
way obtained by a deed
or by order, a statute width of 40 feet would apply to Route 20, a
primary highway or Class A
road. Gambell ascertained that the distance from the center line of
the
roadway to the stump of
the tree is 32.5 feet.
Bernard Morrison, Survey Party Chief for respondent stated that he
did
a survey of Route 20
south of French Creek Game Farm on March 24, 1983. Morrison
explained
that he obtained
the measurements for the tree stump by topographic controls. He set
up a
control point and
turned an angle at a distance to the location of the stump in
relation
to his base line. He
determined that the stump is 42 inches in diameter and is located
12 1/2
feet from the right of
way and 22 1/2 feet from the base line.
Claude C. Blake, claims investigator for respondent, had indicated
in
his interrogatories dated
November 30, 1984 that the tree in question was 5 1/2 feet off the
State
right of way. Blake
testified that his answer was based on the survey of Bernard
Morrison.
At the time, Blake felt
that they were assuming a 30-foot right of way instead of 20 feet.
The testimony was not conclusive in respect to whether or not the
tree
in question was a dead
tree and therefore a hazard. Although claimant introduced some
testimony
that the tree which fell
was a dead tree, respondent introduced evidence showing that the
tree
was a green and healthy
one. Two employees of respondent, including an Operator II and an
equipment operator,
testified that the tree was dead or partly dead. Another man
employed by
respondent until 1977
testified that he had been part of a crew in 1973 or 1974. The crew
had
removed a sugar maple
that was rotten. The tree in question was near the tree which had
been
removed. This individual
felt it was as rotten as the tree that they had cut down. Mr. Oscar
Friend, a longtime resident of
the area stated that the tree was rotten and that he had informed
Gene
Powers, Assistant
Maintenance Supervisor for Upshur County, of that fact. Gene Powers
testified that there were
green leaves on the tree and that he had not received a complaint
about
the tree. Richard Ralph
Walton, respondent's boss of a small garage at Kanawha Head in
1976,
stated that he had not
heard any complaints about this particular tree.
This Court refused recovery in a claim wherein damage occurred to
a
vehicle when the vehicle
struck the limb of a live tree growing on the State right of way
when
respondent lacked
knowledge of the hazardous condition.
This was a live tree and there is nothing in the record to show
that
the respondent had
knowledge of the hazardous condition, or should have known or
foreseen
that it might occur.
Neither was there any notice to the respondent that the limb was
broken
until that information
was furnished by the claimant. While the respondent in such a case
may
not unreasonably delay
the removal of a hazardous obstruction upon a State highway,
neither
will liability arise until the
respondent knows or should know that such a hazard exists. The law
in
West Virginia is well
established that the State is not an insurer of its highways, and
if
there is not preponderant proof
of negligence on the part of the State's employees, the user of the
highway travels at his own
risk. Widlan v. Dept. of Highways, 11 Ct. Cl. 149 (1976). The
evidence
in the instant claim
consists of the testimony of several individuals. This Court cannot
conclusively determine the
condition of the tree. However, the Court is of the opinion that
the
tree was not a completely
dead tree for there was evidence at the time of the incident that
there
were, in fact, leaves on the
limbs of the tree.
There is no dispute between the parties that the tree stump of the
tree
is not located on the
State's right of way. The stump was determined to be approximately
32
feet from the centerline
of Route 20.
In Wolford v. Dept. of Highways, 13 Ct.Cl. 348 (1981), a tree case
in
which recovery was
permitted, the distance of the tree from the middle of the highway
was
either 14 feet, 2 inches or
22 feet, 3 inches. The Court stated that "it is impossible...to
judge
whether the tree was or was
not on the State right of way without resorting to speculation. In
any
case, the tree was close
enough to the road to present a definite hazard." (Emphasis
supplied.)
The estimate of the
distance of the stump from the centerline of the road in the case
a hand
is 32.5 feet. The Court is
of the opinion that the tree which fell on the vehicle was not
close
enough to the respondent's
right of way so as to pose a hazard which should have been apparent
to
the respondent and,
therefore, denies these claims.
Claim disallowed.
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