Cusack v. Division of Highways

PER CURIAM: Claimant brought this action for damage to her 1998 Ford Windstar which occurred when a tree limb fell onto her vehicle while she was traveling on Mill Creek Road in Beckley, Raleigh County. Mill Creek Road is a road maintained by respondent. The Court is of the opinion to deny the claim for the reasons more fully stated below. [16] The incident giving rise to this claim occurred between 6:00 p.m. and 6:30 p.m. on November 28, 2004. Mill Creek Road is a two-lane highway at the area of the incident involved in this claim. Claimant testified that she was traveling on Mill Creek Road when her vehicle struck what she thought was a tree limb. She stated that the tree limb pushed the antenna back into the windshield of the vehicle, damaging the windshield. Claimant’s vehicle sustained damages totaling $259.70. The position of the respondent is that it did not have actual or constructive notice of the condition on Mill Creek Road at the site of the claimant’s accident for the date in question. Joe Donnally, Transportation Crew Chief for respondent in Fayette County, testified that there were no records of any complaints regarding a tree or tree limb 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 vs. 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. Gerritsen v. Dept. of Highways, 16 Ct. Cl. 85 (1986); Wiles v. Division of Highways, 22 Ct. Cl. 170 (1998); In the instant case, the Court is of the opinion that respondent had no notice that a tree limb at issue posed an apparent risk to the public. The evidence adduced at the hearing established that the claimant was not sure what struck and damaged her vehicle. The Court will not speculate as to the nature of the object that claimant’s vehicle struck, and 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.