OPINION ISSUED OCTOBER 1, 1992
DIVISION OF HIGHWAYS
Claimant represents self.
James D. Terry, Attorney at Law, for respondent.
On December 13, 1991, the claimant's son, Edward Boice, a resident of Mineral Wells in Wood
County, was driving the claimant's 1986 GMC half ton pick-up truck west along Butcher Bend Road
when he entered a right-hand turn after a knoll in the road and collided with a fallen tree and a
downed unidentified utility line. The claimant estimated his speed of travel to be about 25 miles per
hour, at 5:25 a.m., when this accident occurred. He described the weather as raining and windy. The
fallen tree was partially in his lane of travel according to the claimant and no other traffic was
present on the two lane road when he struck the tree. Although he was able to maneuver his vehicle
so as to avoid the tree, he was unable to drive the vehicle around a protruding limb that caught the
right front fender of the truck and damaged both the fender and the right headlight. The damage to
the truck resulting from the collision with the limb was in the amount of $488.21. The claimant
maintains full vehicle insurance with Nationwide Insurance. His deductible is $200.00. A claim has
been submitted to the insurer for the described damage. The claimant alleges that the fallen tree was
within the respondent's right-of-way and that the respondent should be responsible for the damage
The respondent contends that the damage to claimant's truck was the result of an act of nature, i.e.
a storm, over which it has no control.
Normus Vincent, a Wood County road maintenance foreman, testified that the first notice of the
fallen tree received by respondent was at approximately 5:30 a.m. on the morning of the claimant's
accident. The tree was removed shortly thereafter. This witness had no prior notice of fallen trees
in the accident area during his four years with the respondent. He testified that the State's
right-of-way is 30 feet, extending 15 feet from the center line on each side.
The claimant testified that he understood the right-of-way on this roadway to be 40 feet, extending
20 feet on each side. The claimant measured the fallen tree from the center line to the tree stump. He
concluded that the tree stump was 20 feet from the center line.
The Court is unable to determine whether the tree was or was not on the State's right-of-way based
upon the testimony in this claim. The burden of proof is upon the claimant to show by a
preponderance of the evidence that the tree was within the State's right-of-way, and that the tree was
close enough to present a road hazard. Furthermore, the claimant must show that the respondent was
aware of the hazard and failed to take corrective action. Wolford v. Dept. of Highways, 13 Ct.Cl. 348 (1981).
The Court is of the opinion that the claimant herein has not established negligence on the part of the
respondent. The State is neither an insurer nor a guarantor of the safety of persons traveling on its
highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947).
In accordance with the findings of fact and conclusions of law stated hereinabove, the Court must
deny this claim.