
    
      OPINION ISSUED MARCH 3, 1989
    
    
      FREAL THOMPSON, JR. VS. DEPARTMENT OF HIGHWAYS
    (CC-88-283)
    Claimant appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

On September 18, 1988, claimant was travelling north on U.S. Route 19 near Princeton, Mercer County. His 1978 Ford Fairmont station wagon struck a tree which was covering the road. The automobile was a total loss, and claimant seeks $2,704.47.

Claimant testified that it was approximately 4:35 a.m., and he was proceeding at a speed of thirty-five miles per hour. It was dark and foggy. The road is a two-lane asphalt highway. His headlights were in operation on low beam. The tree was a large White Oak tree, and the diameter of the trunk was approximately thirty-six inches. He could see between thirty and fifty yards in front of him. He alleges that respondent's crew had performed some work in this area bout a week before the incident. He observed a crew cutting brush, but did not see them specifically cutting brush in the exact location of his accident.

William R. Bennett, Assistant District Engineer for Maintenance with respondent, testified that he reviewed Foreman's Reports and learned that respondent was notified of the presence of the tree on the highway on the actual day of claimant's accident. A crew was sent out to remove it. He checked for complaints and found no complaints from January, 1988, through September 26, 1988.

Proof of actual or constructive notice is required for a showing of negligence. The evidence in this record indicates that the dangerous condition appeared suddenly and that the respondent promptly moved to take safety precautions as soon as it became aware of the problem. Moore vs. Dept. of Highways, (Opinion issued February 19, 1986); Taylor vs. Dept. of Highways, (Opinion issued February 19, 1986) and Ison vs. Dept of Highways, (Opinion issued August 8, 1988). The State is neither an insurer nor a guarantor of the safety of the motorists on its highways. The Court is of the opinion that negligence on the part of the respondent has not been established, and, therefore, the Court denies this claim.

Claim disallowed.  