OPINION ISSUED APRIL 30, 1992
DIVISION OF HIGHWAYS
Claimant represents self.
James D. Terry, Attorney at Law, for respondent.
On December 17, 1990, claimant was operating his vehicle traveling south on U.S. Route 250 in
Fairmont, West Virginia, when a tree came off the west side of the bank and fell onto claimant's
vehicle. Claimant's vehicle was a total loss and his young son, a passenger in the vehicle, received
personal injuries. Claimant alleges the value of his vehicle was $1,400.00, for which he brought this
Respondent denied negligence and asserted that the tree which fell from the bank was not on the
The evidence in this claim established that the stump of the tree which had fallen onto the claimant's
vehicle was approximately 57 feet from the centerline of the highway. Respondent's right-of-way is
45 feet from the centerline. It appeared to the Court at the hearing that the tree was not within
The Court informed the claimant at the hearing that he could obtain survey of the area if he was of
the opinion that the tree was actually within the respondent's right-of-way. Thereupon, the Court
granted leave to the claimant to have the area survey and the Court assumes that the claimant desires
that the claim be submitted upon the transcript.
In accordance with evidence in this claim, the Court concludes that the tree which damaged
claimant's vehicle was not within the respondent's right-of-way. Therefore, the claim must be denied.