OPINION ISSUED DECEMBER 20, 2000
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for damage sustained to his
residence when a tree branch from a tree on respondent's right of
way on W.Va. Route 37 fell onto his residence located in Ranger.
At this location, W.Va. Route 37 is maintained by respondentin
Lincoln 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 August 19,
1999, at approximately 2:00 to 3:00 p.m. At this location,
respondent has a sixty foot right of way. The right of way extends
thirty feet from the center of the road surface. During a severe
storm, a tree branch from a tree on respondent's right of way on
W.Va. Route 37 fell onto claimant's residence. The tree in
question was twenty feet from the center of the road surface. The
impact put a hole in the roof, ripped off some of the overhang,
ripped off some of the siding on the residence and damaged a meter
base. The tree branch also damaged nearby power lines. The tree
was adjacent to his residence about fifty-five to sixty feet from
his residence and six feet from the paved portion of road. Prior
to this incident, claimant's son, Ronald Wiley, had contacted
respondent regarding the tree in question. In the summer of 1997,
Ronald Wiley had contacted respondent's Administrative Assistant
Christopher K. Sowards in Huntington regarding the tree. Mr.
Sowards testified that he contacted County Highway Administrator
II, Larry P. Pauley, to investigate the situation. Mr. Sowards did
not travel to the location in question. The tree was confirmed to
be on respondent's right of way, but it was entangled in the power
lines. Afterwards, Mr. Sowards informed Mr. Wiley that he had to
contact the power company regarding removal of the tree. The
sustained damage was in excess of claimant's $1,000.00 deductible
feature in his homeowner insurance policy. In accordance with the
Court's decision in Summerville et al. vs. Division of Highways,
any recovery would be limited to the amount of the deductible
feature. See Id., 18 Ct. Cl. 110 (1991).
The position of respondent is that it did not have notice of
the hazardous condition of the tree on W.Va. Route 37. According
to Mr. Pauley, when he inspected the tree, it appeared to be alive.
However, the tree was in the power line and he stated that
respondent did not have the expertise to trim the tree. He did not
believe that the tree was a hazard, and he did not contact the
power company. Mr. Pauley further testified that the trees in the power lines should be allowed to fall, then the power company
should be contacted in order to remedy the situation.
The Court has held in prior claims that when the evidence
establishes that respondent has notice of a hazard, such as a tree,
and a reasonable opportunity to remove it, respondent may be held
liable. Jones v. Division of Highways, 21 Ct. Cl. 445 (1995).
In the present claim, the evidence established that respondent
had actual knowledge of the hazardous condition of the tree in
Lincoln County. Respondent should have taken affirmative action
once it received notice of the tree rather than waiting for it to
fall. Consequently, there is negligence on the part of respondent
by which to base an award.
In accordance with the findings of fact and conclusions of law
stated herein above, the Court is of the opinion to and does make
an award in this claim.
Award of $1,000.00.