OPINION ISSUED MARCH 3, 1989
FREAL THOMPSON, JR.
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
On September 18, 1988, claimant was travelling north on U.S. Route
Mercer County. His 1978 Ford Fairmont station wagon struck a tree
was covering the
road. The automobile was a total loss, and claimant seeks
Claimant testified that it was approximately 4:35 a.m., and he was
proceeding at a speed of
thirty-five miles per hour. It was dark and foggy. The road is a
two-lane asphalt highway. His
headlights were in operation on low beam. The tree was a large
tree, and the
diameter of the trunk was approximately thirty-six inches. He could
between thirty and fifty
yards in front of him. He alleges that respondent's crew had
some work in this area
bout a week before the incident. He observed a crew cutting brush,
did not see them
specifically cutting brush in the exact location of his accident.
William R. Bennett, Assistant District Engineer for Maintenance
respondent, testified that
he reviewed Foreman's Reports and learned that respondent was
of the presence of the
tree on the highway on the actual day of claimant's accident. A
sent out to remove it.
He checked for complaints and found no complaints from January, 1988,
through September 26,
Proof of actual or constructive notice is required for a showing
negligence. The evidence in
this record indicates that the dangerous condition appeared
that the respondent
promptly moved to take safety precautions as soon as it became
the problem. Moore
vs. Dept. of Highways, (OPINION ISSUED February 19, 1986); Taylor
Dept. of Highways,
(OPINION ISSUED February 19, 1986) and Ison vs. Dept of Highways,
(OPINION ISSUED August 8,
1988). The State is neither an insurer nor a guarantor of the
the motorists on its
highways. The Court is of the opinion that negligence on the part
respondent has not been
established, and, therefore, the Court denies this claim.