|Volume Number: 30
Category(s): TREES AND TIMBER
|Opinion Issued September 13, 2013|
|SHIRLEY M. ADKINS|
|DIVISION OF HIGHWAYS|
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for Respondent.
| PER CURIAM:
Claimant, Shirley Adkins, brought this action to recover damages which occurred when her 1998 Mercury Villager was struck by a tree while she was parked along Route 60 near White Sulphur Springs, Greenbrier County. Route 60 is a public road maintained by Respondent. The Court is of the opinion to deny this claim for reasons more fully stated below.
The facts giving rise to this claim occurred in August 2010, at approximately 11:00 a.m. Claimant testified that a strong wind and rain storm, which lasted approximately fifteen minutes, caused a tree to split and fall onto Claimant’s vehicle. Claimant maintains that the tree was already dead and was located along the Respondent’s right-of-way. As a result of the incident, Claimant’s vehicle sustained damage in the amount of $2,000.00. Claimant carried only liability insurance on the date of the incident.
Respondent argues that it did not have actual or constructive notice of the condition of the tree before the storm caused the tree to fall. Claimant asserts that Respondent is negligent because it should have known that the tree’s rotten condition was likely to cause damage.
The well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). Therefore, in order to hold Respondent liable for road defects of this type, Claimant must prove that Respondent had actual or constructive notice of the defect and a reasonable amount of time to take corrective action. Pritt v. Dep’t of Highways, 16 Ct. Cl. 8 (1985); Chapman v. Dep’t of Highways, 16 Ct. Cl. 103 (1986). “Actual notice” is based on direct evidence known by a person or entity while “constructive notice” is defined as "[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of . . .; notice presumed by law to have been acquired by a person and thus imputed to that person." Mace v. Ford Motor Co., 221 W. Va. 198, 653 S.E.2d 660 (2007) (citing Black’s Law Dictionary at 1090 (8th Ed. 2004)).
In the instant case, the Court is of the opinion that Respondent did not have actual or constructive notice of the condition of the tree. When the Respondent does not have adequate notice of a condition for corrective action, the Court finds no duty upon the Respondent to correct unknown defects.
Based on the foregoing, the Court finds Claimant’s claim should be, and is hereby, denied.