
    
      OPINION ISSUED JANUARY 27, 1999
    
    GARY WILES AND SANDY WILES VS. DIVISION OF HIGHWAYS
    (CC-98-275)
    Claimant represents self.
    Andrew F. Tarr, Attorney at Law, for the respondent.
   PER CURIAM:

The claimants brought this action for damage to their property which they alleged occurred when a tree fell from a right of way maintained by the respondent in Monongalia County.

The claimants own a mobile home and an outbuilding on WV Route 7 (Rogers Avenue) in Morgantown, West Virginia. The area in question is heavily wooded. A steep bank runs along one side of the claimant’s property near the road. On or about June 16, 1998, a heavy windstorm occurred throughout Monongalia County. The evidence adduced at hearing established that a large tree fell on the claimants’ outbuilding, damaging the roof as well as the back porch of the claimant’s trailer. The claimants’ homeowners insurance covered the cost for repairs. The claimants now seek an award in the amount of $250.00, representing their insurance deductible.

The evidence adduced at hearing established that the area around the claimants’ home was heavily wooded. The tree appears to have fallen from an embankment on or near the respondent’s right of way. The tree in question was large and healthy. The respondent’s evidence established that the wind damage from this storm was widespread throughout Monongalia County. A small tornado occurred in the southern part of the county, which uprooted a number of trees.

The general rule of this Court is that in order to hold the respondent liable for property damage caused by negligent maintenance of its roads and right of ways, the claimant must prove that the respondent had actual or constructive notice. With regard to tree fall claims, the general rule this Court has adopted is that if a tree is dead and poses an apparent risk, then the respondent may be held liable. However, when a 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 vs. Dept. of Highways, 16 Ct. Cl. 85 (1986).

The evidence indicates that the tree in question was healthy and that the damage was the result of unusually severe winds. Therefore, in accordance with the foregoing, the Court is constrained by the evidence to deny the claim.

Claim disallowed.  