Hamilton v. Division of Highways

Claimants brought this action to recover damages to their 1981 Ford Fairmont automobile which occurred when the automobile struck a tree limb on U.S. Route 60 on January 8, 1994. The windshield was damaged and had to be replaced at a cost of $184.08.

The evidence adduced at the hearing of this claim on May 12,1994, established that claimant, Scott Hamilton, was operating claimants’ automobile on U.S. Route 60 at Shrewsbury, Kanawha County, near the Chelyan Bridge. It was approximately 3:30 or 4:00 p.m. and it was raining. As claimant was driving across the bridge, he steered to the right to avoid a truck which was approximately one foot into claimant’s lane of travel on the approach to the bridge. He was driving at approximately 45 miles per hour and he did not see a tree limb hanging out into the road until it caught his windshield. Claimants’ automobile was on the paved portion of the road when the accident occurred.

Respondent established through James Dingess, Supervisor for the Chelyan area the respondent, that there had been a slip at the edge of the road which caused the tree limb to hand from a tree and extend over U.S. Route 60 at the scene of claimant’s accident. Respondent’s crew attempted to keep the slip area clear, but there were many problems with the roads during this time period and this slip was continuous in nature.

The Court is of the opinion that respondent maintained this slip area as well as could have been anticipated considering all of the snow and ice removal operations which were necessitated by adverse weather conditions during the 1993-94 winter. Respondent had many responsibilities at this time and maintained the slip area to the best of its ability. As respondent was not negligent in its maintenance of the slip area, it is not liable to claimants for the damage to their automobile.

*112Therefore, the Court is of the opinion to and does deny this claim.

Claim disallowed.