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West Virginia Court of Claims

Volume Number: 30
Category(s): TREES AND TIMBER
Opinion Issued August 27, 2013
ROBERT KELLY
VS.
DIVISION OF HIGHWAYS
(CC-12-0393)
     Claimant appeared pro se.
     Andrew F. Tarr, Attorney at Law, for respondent.
     PER CURIAM:
      Claimant brought this action for clean-up expenses incurred when a tree, alleged to be owned by Respondent, fell onto Claimant’s property near South Charleston, Kanawha County. The Court is of the opinion to make an award in this claim for the reasons stated more fully below.
      The incident giving rise to this claim occurred on May 18, 2012, after a period of substantial rainfall. Claimant testified that a large red oak tree became uprooted and fell from an area that is in the Respondent’s right-of-way onto Claimant’s property where it came to rest across a creek. Claimant stated that he was concerned that the creek may flood due to the obstruction and took immediate action to remove the tree. Claimant produced evidence that indicated that he paid $265.00 for removal of the tree debris and $150.00 for removal of the tree stump and debris disposal. Claimant’s insurance is not at question in this matter.
      Claimant contends that Respondent knew or should have known that this tree was dead and should have taken the proper action to remedy this hazard before the tree fell. Respondent argues that it did not have actual or constructive notice of the situation; therefore, Respondent could not take preventative action.
      It is a well established principle of law that the State is neither an insurer nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 811 (W.Va.1947). To hold respondent liable, Claimant must establish by a preponderance of the evidence that the respondent had actual or constructive notice of the defect in question and a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). With regard to tree fall claims, the general rule this Court has adopted is that if a tree is dead and poses an apparent risk, then the respondent may be held liable. However, when a healthy tree falls and causes property damage as a result of a storm, the Court has held that there is insufficient evidence of negligence upon which to justify an award. Wiles v. Div. of Highways, 22 Ct. Cl. 170 (1999); Gerritsen v. Dept. of Highways, 16 Ct. Cl. 85 (1986). The Court has also held that Respondent may have a duty to remove dangerous trees and tree limbs that are not on the Respondent’s right of way especially where the tree or tree limb is dead. Newkirk v. Div. of Highways 20 Ct. Cl. 18 (1993).
      In the present claim, there was no actual property damage as a result of the tree fall; however, the Claimant incurred expense when he undertook to prevent property damage by removing the tree. Thus, this case is distinguishable from the usual tree fall claims heard by this Court. Still, the Court is of the opinion that whether or not Respondent had actual or constructive notice of the tree’s condition, there remains a duty to remove conditions under the control of Respondent.
      Based on the foregoing, the Court makes an award to Claimant in the amount of $415.00.
      Award of $415.00.
Summary:
     


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