Ore v. Division of Highways

PER CURIAM: Claimant brought this action for vehicle damage which occurred when his 1985 BMW 524td struck a tree in the road on W. Va. Route 4, near Clendenin, Kanawha County. W. Va. Route 4 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 8:10 a.m. on September 25, 2005. W. Va. Route 4 is a two-lane highway at the area of the incident involved in this claim. Claimant testified that he was traveling eastbound on W. Va. Route 4 at approximately fifty-two miles per hour when he noticed a tree falling into the road. Mr. Ore stated that he applied the brakes of his vehicle, but that his vehicle still struck the tree. He testified that the tree was approximately forty feet long and was a dead tree that was rotted. His vehicle struck the tree, damaging a wheel, oil pan, oil pump, body, fog lights, radiator and oil cooler totaling $2,323.56. The position of the respondent is that it did not have actual or constructive notice of the condition on W. Va. Route 4 at the site of the claimant’s accident for the date in question. David Fisher, Highway Administrator for respondent in Kanawha County, testified that he had no prior complaints about the tree that fell onto W. Va. Route 4 prior to the 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. Wiles v. Division of Highways, 22 Ct. Cl. 170 (1998); Gerritsen v. 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. While the tree was dead and had no limbs, respondent had received no prior complaints regarding the condition of the tree and further, the claimant testified that the tree fell into the road as he was traveling on it. Therefore, respondent was not negligent in the maintenance of W. Va. Route 4 on the [22] date of claimant’s incident. Thus, the claimant may not make a recovery for his loss in this claim. In view of the foregoing, the Court is of the opinion to and does deny this claim. Claim disallowed.