
    
      OPINION ISSUED JUNE 1, 2010
    
    CARROLL D. GARNES JR. V. DIVISION OF HIGHWAYS
    
      (CC-09-0266)
    Claimant appeared pro se.
    
    Andrew F. Tarr, Attorney at Law, for Respondent.
   PER CURIAM:

Claimant brought this action for vehicle damage which occurred when a pine tree fell onto his parked 1998 Ford Escort. Claimant asserts that Respondent was notified that the tree was leaning dangerously over County Route 16, but Respondent failed to remove the tree prior to the Claimant’s incident. The Court is of the opinion to make an award in this claim for the reasons stated more fully below.

The incident giving rise to this claim occurred on May 3,2009. Claimant’s vehicle was parked at his parents’ residence, which is located on Clendenin Creek Road, designated as County Route 16, in Liberty, Putnam County. County Route 16 is a paved road that is approximately one lane and a half wide. A wooded lot, owned by the Claimant’s uncle, is located across the street from his parents’ residence. Two weeks prior to the incident, Claimant’s father, Carroll Games Sr., notified two of Respondent’s employees, who were cutting brash approximately two feet beyond the location of the tree’s trunk, that the tree needed to be cut and removed.

On the date of this incident, Claimant and his family were out of town when they were notified by a neighbor that the tree had fallen onto the Claimant’s vehicle. Claimant testified that the tree damaged the vehicle’s windows and the weather stripping. As a result of this incident, Claimant’s vehicle sustained damage in the amount of $549.19. Claimant had liability insurance only.

Claimant contends that Respondent should have removed the tree shortly after Mr. Games Sr., notified Respondent of the problem two weeks prior to this incident. Claimant asserts that the tree was on Respondent’s right-of-way.

Respondent contends that the tree was not on its right-of-way, and thus, it is not responsible for the damage caused to Claimant’s vehicle. Raine Beller, Crew Supervisor I for Respondent in Putnam County, testified that he could not state with certainty that the tree was on Respondent’s right-of-way. Mr. Beller stated that County Route 16 is a second priority road in terms of its maintenance. He stated that he and one other employee responded to the tree fall on the date of the incident and removed the tree. Mr. Beller testified that he did not have knowledge that Mr. Games Sr., had reported the condition of the tree to Respondent prior to the incident.

In cases involving falling trees or tree limbs, the Court has held that a claimant must establish that respondent knew or had reason to know that the tree in question posed a risk of harm to motorists. Widlan v. Dep’t of Highways, 11 Ct. Cl. 149 (1976). The general rale is that if a dead tree located on respondent’s right-of-way poses an apparent risk, then the respondent may be held liable. Hamby v. Div. of Highways, 24 Ct. Cl. 184 (2002). However, where a healthy tree or tree limb falls as a result of a storm and causes damage, the Court has held that there is insufficient evidence of negligence upon which to justify an award. Gerritsen v. Dep’t of Highways, 16 Ct. Cl. 85 (1986). In May v. Div. of Highways, CC-05-0056 (2008), the Court held, “The Court will not place a burden on respondent with respect to trees surrounding its highways unless the tree poses an obvious hazard to the traveling public.”

In the present claim, the Court finds that Respondent had notice ofthe tree’s condition two weeks prior to the incident in question. Mr. Games Sr., informed Respondent’s employees that the tree needed to be removed because it was close enough to the highway to pose a danger of falling onto County Route 16. Mr. Games Sr., testified that Respondent’s employees were cutting brash approximately two feet beyond the tree’s trunk, which suggests that the tree was on Respondent’s right-of-way. Although Respondent cannot be held liable for eveiy tree that falls near a highway, the Court finds that the Respondent had actual notice that this tree posed a hazard. Thus, the Court finds Respondent negligent, and Claimant may recover $549.19 for the damage to his vehicle.

Accordingly, the Court makes an award to Claimant in the amount of $549.19.

Award of $549.19.  