Britt v. Department of Highways

The claimant’s 1973 Ford Mustang was damaged when the *379vehicle struck a tree which had fallen across Pemberton Road in Raleigh County, West Virginia. The incident occurred on September 5, 1982, at about 10:30 p.m. Estimates of the damage to the vehicle ranged from $258.30 to $474.55. The claimant testified that the tree was live, and that the road had been clear at 10:15 p.m.

The State is neither an insurer nor a guarantor of the safety of persons traveling on its highways. Adkins v. Sims, 130 W.Va. 645 (1947). To be liable, the State must have had either actual or constructive notice of the particular hazard which caused the accident. Davis v. Dept. of Highways, 11 Ct.Cl. 150 (1976). There was no evidence of notice to the respondent or of the prolonged existence of the hazard. The claimant’s testimony leads to the conclusion that the tree had fallen only a short time before the accident. Without notice of the hazard and a reasonable opportunity to remove it, the respondent cannot be held liable. The claim must therefore be denied.

Claim disallowed.