OPINION ISSUED JUNE 8, 2000
DEBRA ANN ELSEA
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage sustained when
her vehicle struck a tree while traveling on Route 45/8, locally
known as Boyd Orchard Road, in Martinsburg. Route 45/8 is a road
maintained by respondent in Berkeley 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 27,
1999, at approximately 5:10 a.m. At dawn on the morning in
question, claimant was traveling on Route 45/8 in her 1997 Ford
Aerostar van, which had a rack on the top. She was driving at a
speed of about fifteen to twenty miles per hour with the aid of the
vehicle's headlights. At this location, Route 45/8 is a secondary
gravel road. As Ms. Elsea took her usual route on this road
delivering newspapers, she approached an area with trees on the
side of the road. Suddenly, her vehicle was struck by a limb
hanging above the roadway from a tree on the side of the road,
cracking the windshield and breaking the rack on top of the
vehicle. While claimant sustained a loss in the amount of
$1,060.80, she has a deductible feature of $200.00 in her motor
vehicle insurance policy and any recovery would be limited to that
amount. Summerville, et al. vs. Division of Highways, 18 Ct. Cl.
The position of respondent was that it did not have notice of
the condition of this particular tree on Route 45/8 in Berkeley
County. However, according to respondent's daily records,
respondent's employees were at the location in question on two
occasions prior to claimant's incident. On July 24, 1999,
respondent's employees were on Route 45/8 regarding tree problems
and later on July 26, 1999, respondent's employees were mowing
brush along the road.
The Court has held in prior claims that when the evidence
establishes that respondent does not have notice of a hazard, such
as a leaning tree, and a reasonable opportunity to remove it,
respondent will not be held liable. Jones v. Division of Highways,
21 Ct. Cl. 445 (1995).
In this present claim, the evidence adduced at the April 20,
2000, hearing established that respondent had at least constructive
notice of the that this tree posed a hazard to the traveling
public. The photographic evidence adduced by claimant established that the tree in question was in fact dead. Respondent's employees
were at the location on two prior occasions and should have been
aware of the hazard posed by the tree. Consequently, there is
sufficient evidence of negligence upon which to base an award.
In accordance with the findings of facts and conclusions of
law stated herein above, the Court is of the opinion to make an
award in this claim.
Award of $200.00.