OPINION ISSUED AUGUST 8, 1988
KENNETH DALE BROWNING
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
This claim was originally styled with respondent party as the
West Virginia. The
Court, upon its own motion, amended the style of the claim to
the Department of
Highways as the proper party respondent.
On November 11, 1987, the claimant was operating his 1980 Ford
Thunderbird on Route 10
in Harts, West Virginia. He was travelling north from Chapmanville
Harts. A tree limb struck
his vehicle. He seeks $2,400.00 for damage to his vehicle.
Claimant testified that on the day of the incident it was about
p.m. It was raining, and
there was a slight wind. He was travelling at approximately 50
hour. The tree was
located adjacent to the road. The tree limb hit the windshield of
automobile and impaired his
vision, whereupon he lost control of the car and drove into the
hillside. He had seen the tree on
prior occasions and it was his opinion that it was a dead tree. He
travels the route every day,
but had not submitted a complaint to respondent concerning the
Larry P. Pauley, the county supervisor of Lincoln County for
respondent, testified that he is
familiar with the tree in question. The reason the tree was not cut
respondent was that there
was uncertainly about its location on respondent's right of way. He had
not received any
complaints prior to November 11, 1987.
Billy Dale Topping, respondent's maintenance crew head for the
Creek area, stated that
the top of the tree was handing over the highway. He stated that
neighbor on the adjacent
property had requested that respondent's crew cut the tree. When
request was made, he did
not consider the tree to be a hazard. It is the policy of
cut trees only if they are
hazards and there is permission from the landowner.
There has been no concrete evidence that the tree is on
right of way. In addition,
there are contradictory views about whether the tree was alive or
After careful review of
the evidence, the Court is unable to find negligence on the part of
respondent. For that
reason, the Court if of the opinion to, and does, deny the claim.