Faulkner v. Department of Highways

15 Ct. Cl. 123

Opinion

PER CURIAM:

Claimant lives on Amandaville Road or State Route 17/1 in St. Albans, West Virginia. She seeks $354.50 for various appliances which were damaged when a fallen tree limb struck an electrical line causing a power surge in her house. This occurred on April 14, 1983, at approximately 9:15 a.m. Three televisions, a radio, and a clock were among the damaged items. Claimant stated that limbs had fallen from the tree before and she believed the tree was dead. She had made no complaints to respondent prior to this incident, but believed that a neighbor had. The tree has since been removed by Appalachian Power Company.

Lloyd Myers, a supervisor employed by respondent, testified that he had had no complaints about the tree until May of 1983. He said that any complaints made to his district office would have been referred to him. Mr. Myers said he viewed the tree shortly after receiving the complaint and stated that the tree was alive. He also stated that it was located partly on respondent’s right-of-way and partly on land owned by someone else.

In order for the claimant to prevail in a claim of this kind, it must be shown that respondent knew, or should have known, that the tree in question posed a hazard. The evidence was in conflict as to whether the tree was alive and the testimony concerning prior notice to respondent was unsubstantiated. The Court concludes, therefore, that the claimant has not established, by a preponderance of the evidence, that respondent was negligent, and denies the claim.

Claim disallowed.