Gibson v. Division of Highways

PER CURIAM: Claimant brought this action for vehicle damage which occurred when her 1991 Chevrolet Beretta struck a tree that had fallen onto Route 25, in Glen Jean, [132] Fayette County. Route 25 is a road maintained by respondent. The Court is of the opinion to deny the claim for the reasons more fully stated below. The incident giving rise to this claim occurred at approximately 3:00 a.m. on June 11, 2004. Route 25 is a two-lane highway at the area of the incident involved in tins claim. Tina L. Gibson testified that she was traveling at approximately thirty miles per hour due to foggy conditions when she noticed a tree in the road. She stated that the tree appeared to be alive and covered the entire road. Ms. Gibson testified that she applied her breaks but her vehicle still struck the tree, sustaining damages totaling $366.87. The position of the respondent is that it did not have actual or constructive notice of tlie condition on Route 25 at the site of the claimant’s accident for the date in question. Joe Donnally, Maintenance Crew Leader for respondent in Fayette County, testified that he had no information about the tree that fell onto Route 25 prior to claimant’s incident. 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). The general rule of this Court with regard to tree fall claims is that if a tree is dead and poses an apparent risk, then the respondent may be held liable. However, when an apparently 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 vs. Division of Highways, 22 Ct. Cl. 170 (1998); Gerritsen vs. Dept. of Highways, 16 Ct. Cl. 85 (1986). In the instant case, the Court is of the opinion that respondent had no notice that the tree at issue posed an apparent risk to the public. The evidence adduced at the hearing established that the tree appeared to be a healthy tree. Neither claimant nor respondent had reason to believe that the tree was in danger of falling. Thus, the claimant may not make a recovery for her loss in this claim. In view of the foregoing, the Court is of the opinion to and does deny this claim. Claim disallowed.