Newkirk v. Division of Highways

PER CURIAM: Claimant, Twanda Newkirk, seeks an award from the Division of Highways for property damage sustained at 6:45 a.m. on July 6,1992, when her vehicle struck abranch from a tree which was hanging over the travel portion of Route 60 in Shrewsbury, Fayette County. A hearing was held on November 20,1993. From the evidence adduced the hearing, it appears that the claimant was driving her vehicle west on Route 60 and as she proceeded around a blind curve in the road, she came upon a tree limb which was hanging over the road. She swerved to the left, attempting to avoid hitting the limb, but because of oncoming traffic, she was unable to do so. The limb struck the vehicle’s front passenger window shattered it. The cost of replacing the window was $340.00. During the hearing, it was determined that the tree which the claimant testified about and the tree which the respondent’s witness testified about, were two different trees. The Court was unable to determine whether or not the tree from which the limb was hanging and which was struck by claimant’s vehicle was on the State’s right of way. At a second hearing held on May 26,1993, the parties produced testimony concerning the location of the tree from which the limb was hanging and measurements from the center line of Route 60 to the trunk of the tree. This Court has determined that the tree in question was not on the respondent’s right of way, as it was approximately thirty-five feet from the center line. This Court calculated this distance based upon measurements provided by witnesses at the second hearing. This Court is not unmindful of the fact that respondent may have a duty to remove a dangerous limb from a tree not upon its right of way, but in this claim there is also a lack of evidence as to whether the tree was dead or alive. It appears to this Court that respondent had no notice that this particular limb posed a potential hazard to the traveling public; therefore, negligence on the part of the respondent has not been substantiated by the evidence. Accordingly, this Court is of the opinion to and does deny this claim. Claim disallowed.