OPINION ISSUED AUGUST 8, 1988
EDWARD R. ISON AND SHARON G. ISON
DEPARTMENT OF HIGHWAYS
Claimant Edward R. Ison appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
On December 25, 1987, claimant Edward R. Ison was operating his
Ferndale Road, near Kenova, Cabell County. At approximately 300
from Route 52, the
vehicle struck a tree blocking the roadway. The vehicle was
and the claimants seek
Claimant Edward R. Ison testified that it was about 9:00 p.m. at
time of the accident, and it
was raining. He was travelling at approximately 20-30 miles per
had travelled this route
15 minutes to a half hour before this accident, and he had not
the tree then. He
described the tree as a "... Locust tree at least 12 inches in
all the way across the
road." It was up an embankment.
Earnest Tracy Ison, a passenger in the vehicle, confirmed the
of claimant Edward R.
Ison. Samuel C. Workman, who resides near the accident scene,
that he had contacted
respondent in reference to problem trees in this vicinity before
Donald H. Akers, Wayne County Maintenance Superintendent on
testified that he is familiar with this particular section of
He was called on the night in
question, and his crew removed the tree. He had not had any
concerning this tree
prior to claimant's accident.
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), and
vs. Dept. of
Highways, (OPINION ISSUED February 19, 1986). The State is neither
insurer nor a guarantor
of the safety of the motorists on its highways. The Court is of the
opinion that negligence on the
part of the respondent has not been established and, therefore, the
Court denies this claim.