OPINION ISSUED SEPTEMBER 8, 1999
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage which occurred
as a result of an encounter with a falling tree while traveling
west on U. S. Route 60 at Cedar Grove, which is a road maintained
by respondent in Kanawha County. The Court is of the opinion to
deny this claim for the reasons more fully stated below.
The incident giving rise to this claim occurred on June 8,
1998, at approximately 6:30 a.m. At daybreak on the morning in
question, claimant was making her routine drive to Charleston for
work. Claimant was traveling westbound in the right-hand lane of
the four-lane section of U. S. Route 60 and proceeding to the
two-lane section of U. S. Route 60. A coal truck was in front of
claimant's vehicle. The coal truck made the trees and greenery
move as it proceeded down U. S. Route 60. As claimant came to the
two-lane portion of U. S. Route 60, a dead tree fell and struck
claimant's vehicle. The impact broke the vehicle's windshield and
luggage rack. Then, the tree bounced on the front end of her
vehicle and broke the headlight. Claimant had only liability
insurance coverage. The estimated damage to claimant's 1989 Dodge
Caravan was in the amount of $1,101.02, but claimant explained that
her actual expenses for repair were $2,000.00.
The position of respondent was that it did not have actual or
constructive notice of the condition of such tree on U. S. Route 60
at Cedar Grove in Kanawha County. According to respondent's daily
reports from the Chelyan office, emergency service was dispatched
to remove the tree from U. S. Route 60. The tree was removed as
soon as the call was received. Respondent had no prior information
regarding condition of the tree or that it may have posed a danger
to the traveling public.
This Court has previously held that when the evidence
indicates that respondent does not have notice of a hazard, such as
a falling tree, and a reasonable opportunity to remove it,
respondent cannot be held liable. Jones v. Division of Highways,
21 Ct. Cl. 45 (1995).
There are several trees in this location of U. S. Route 60 at
Cedar Grove in Kanawha County. No evidence was presented as to
whether the tree was on the State's right of way. Clearly,
respondent can not be responsible for inspection of all the trees
in the area that may or may not be in the State's right of way.
Respondent had no notice of the tree's condition or that the tree's potential for falling posed a hazard to the traveling public.
Consequently, there is insufficient evidence of negligence upon
which to base an award.
In view of the foregoing, the Court hereby denies this claim.