OPINION ISSUED AUGUST 24, 1999
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for the respondent.
The claimant brought this action for vehicle damage which
occurred as a result of two separate collisions with fallen trees
on Route 34 and Route 34/8, which are roads maintained by the
respondent in Putnam County. The Court is of the opinion to deny
this claim for the reasons more fully stated below.
The first incident giving rise to this claim occurred on March
7, 1997 sometime in the night. Claimant's wife was traveling on
Route 34 at Red House at a speed of about twenty-five to thirty
miles per hour. When the claimant's wife came around a curve, she
suddenly encountered a tree that had fallen over the guardrail and
the claimant's vehicle collided with the tree. Claimant's wife
alleged that she was not able to see the fallen tree before the
collision. This particular road is frequently traveled by the
claimant and his wife. In fact, claimant and his wife had been on
the same road six hours earlier, but did not see the fallen tree at
that time. Damage to claimant's 1986 Toyota four-wheel drive
pickup as a result of the first incident was a broken antenna and
mirror as well as damage to left quarter panel, left tail light and
four pin stripes. Because no repair work has been done to the
claimant's vehicle as of the June 11, 1999, hearing and the
claimant was only able to produce an estimate for $1,040.92, the
exact amount of damages was unclear. Also, the record is unclear
whether the claimant had full or liability insurance coverage that
would cover this accident.
The second incident giving rise to this claim occurred on July
2, 1997 at about 11:00 p.m. Claimant's wife was traveling on Route
34/8 (Bowles Ridge, off of Route 34) to a friend's house in
Grandview Ridge on the stormy night in question. Claimant's wife
went around a corner and suddenly encountered another fallen tree
and claimant's vehicle collided with that tree. Like the first
incident, claimant wife was unable to see the tree until the
collision. The resulting damage to the claimant's 1986 Toyota
four-wheel drive pickup that was the vehicle's exhaust system was
torn from the vehicle. Claimant's out-of-pocket expense for this
accident was $100.44. As aforementioned, the record is unclear
whether claimant had full or liability insurance coverage that
would cover this accident.
The position of the respondent was that it did not have actual
or constructive notice of the conditions on Route 34 or Route 34/8 at the sites of claimant's accidents for either of the dates in
question. Even though claimant alleges to the contrary, there was
no evidence that there had been any calls or letters describing any
fallen trees or other debris on Route 34 or Route 34/8 at the site
of the claimant's accidents for either of the dates in question.
Moreover, Route 34 is a first priority road. Consequently, the
road is patrolled regularly for road defects, such as fallen trees
and debris. Similarly, Route 34/8 is patrolled regularly for road
defects, such as fallen trees and debris. However, on July 3,
1999, the day after a bad storm and claimant's wife's second
accident, fallen trees and debris were found and removed on
secondary roads in the area by the respondent's employees in Putnam
County, but it is unclear whether any fallen trees or debris were
ever the cause of claimant's accident or were removed from the
locations in question. Thus, there was no notice of any road
defects on Route 34 or Route 34/8 which should have been repaired.
The well established principle of law in West Virginia is that
the State is neither an insurer nor a guarantor of the safety of
motorist upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d
81 (1947). In order to hold the respondent liable for road defects
of this type, the claimant must prove that the respondent had
actual or constructive notice. Pritt vs. Dept. of Highways, 16 Ct.
Cl. 8 (1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
The Court is of the opinion that the respondent did not have actual
or constructive notice of any road hazard on Route 34 or Route
34/8. Respondent did not have ample opportunity to make repairs.
Thus, the claimant is not entitled to an award for his losses.
In the present case, the evidence established that the
respondent regularly sent its employees to inspect the locations in
question. Further, the evidence established that the respondent
was not put on notice about any fallen trees or debris in the
locations in question. The Court is of the opinion that the
respondent did take reasonable steps to ensure the safety of Route
34 and Route 34/8 in Putnam County. The respondent was vigilant.
Consequently, there is insufficient evidence of negligence upon
which to justify an award. In view of the foregoing, the Court
denies this claim.