
    
      OPINION ISSUED AUGUST 8, 1988
    
    EDWARD R. ISON AND SHARON G. ISON VS. DEPARTMENT OF HIGHWAYS
    (CC-88-61)
    Claimant Edward R. Ison appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

On December 25, 1987, claimant Edward R. Ison was operating his 1983 Chevette on Ferndale Road, near Kenova, Cabell County. At approximately 300 yards from Route 52, the vehicle struck a tree blocking the roadway. The vehicle was totalled, and the claimants seek $1,500.00.

Claimant Edward R. Ison testified that it was about 9:00 p.m. at the time of the accident, and it was raining. He was travelling at approximately 20-30 miles per hour. He had travelled this route 15 minutes to a half hour before this accident, and he had not observed the tree then. He described the tree as a ”... Locust tree at least'12 inches in diameter all the way across the road." It was up an embankment.

Earnest Tracy Ison, a passenger in the vehicle, confirmed the testimony of claimant Edward R. Ison. Samuel C. Workman, who resides near the accident scene, testified that he had contacted respondent in reference to problem trees in this vicinity before this incident.

Donald H. Akers, Wayne County Maintenance Superintendent on December 25, 1987, testified that he is familiar with this particular section of highway. He was called on the night in question, and his crew removed the tree. He had not had any complaints concerning this tree prior to claimant's accident.

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), and Taylor vs. Dept. of Highways, (Opinion issued February 19, 1986). 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.  