OPINION ISSUED JANUARY 28, 2000
MICHAEL EDWARD QUEEN
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage when a tree
limb that was hanging over the road surface fell onto his vehicle
as he traveled along W. Va. Route 103, in Horsepen, McDowell
County. W. Va. Route 103 is a road maintained by respondent in
McDowell County. The Court is of the opinion to make an award in
this claim for the reasons more fully set forth below.
The incident giving rise to this claim occurred on July 2,
1998, at approximately 1:00 to 1:30 p.m. On the sunny day in
question, claimant and a friend were traveling on W. Va. Route 103
in Horsepen to visit claimant's "homeplace." W. Va. Route 103 is
a first priority feeder road with a road surface of nineteen to
twenty-one feet. On several occasions, claimant has been concerned
about a large tree limb with small branches that had been hanging
over the road surface of W.Va. Route 103 for about three years and
he had personally contacted respondent's Havaco office regarding
the tree limb. On another occasion claimant had tried pull the
branch down, but was unsuccessful. However, while traveling along
the road on the day in question, the tree limb fell onto claimant's
1995 Ford Mustang, impacting the windshield where the West Virginia
State Motor Vehicle Inspection Sticker is normally located. A view
of the vehicle at the October 28, 1999, hearing established that
the impact of the tree limb caused what could be termed as a single
line crack in the vehicle's windshield about four inches above the
bottom of the windshield and proceeding in a transverse manner from
the right driver's side almost to the passenger side. Following
the 4th of July holiday, claimant informed respondent of the
incident. The damage sustained to the vehicle was estimated in the
amount of $213.66. Claimant's motor vehicle insurance policy has
a deductible feature of $250.00 which is the limit of any recovery
The position of respondent was that it did not have notice of
the tree limb hanging over the road surface of W.Va. Route 103 in
Horsepen. According to respondent, a review of its records
indicated no complaints regarding this area. In addition,
respondent was unable to articulate why other trees hanging over
the road surface of W.Va. Route 103 have not been removed.
This Court has previously held that when the evidence
indicates that respondent has notice of a hazard, such as a tree
limb hanging over a road surface, and a reasonable opportunity to remove it, respondent may be held liable. Jones v. Division of
Highways, 21 Ct. Cl. 445 (1995).
The evidence adduced at the October 28, 1999, hearing
established that respondent knew or should have known about the
tree limb hanging over the road surface of W.Va. Route 103.
Claimant had informed respondent of this hazard on two prior
occasions. Moreover, W.Va. Route 103 is a first priority road and
a reasonable inspection of the road would have made this road
hazard known to respondent. The Court is of the opinion that the
actions of respondent constituted negligence for which claimant may
recover the estimated sustained loss. Consequently, there is
sufficient evidence of negligence upon which to base an award.
In view of the foregoing, the Court is of the opinion to and
does make an award in this claim in the amount of $213.66.
Award of $213.66.