Who has the duty to remove a tree causing an obstruction on the highway?

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Who has the duty to remove a tree causing an obstruction on the highway?

I was driving through a scenic route and crashed into a fallen tree that was obstructing the road. Does the highway authority owe me a duty of care? However, the problem is that I was not wearing a seat-belt and therefore crashed into my windscreen. In addition, I failed to see the tree as I was on my phone and I had a couple of glasses of wine to drink prior. Do I have a case? Do the owe me a duty?

Asked on March 3, 2012 under Personal Injury, Missouri

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Negligence is the failure to exercise due care (that degree of care in this case that a reasonable state highway authority would have exercised  under the same or similar circumstances to prevent foreseeable harm).  There is also negligence for failure to exercise due care (that degree of care in this case that a reasonable driver would have exercised under the same or similar circumstances to prevent foreseeable harm).

Some states have comparative negligence where both parties are liable.  If the state has comparative negligence, a percentage of fault is determined for each party.  Although the state highway association was negligent for not having removed the fallen tree, you were also negligent for talking on your phone and not seeing the tree, not wearing a seatbelt and having had a couple of drinks before driving.

A percentage of fault would be determined for both you and the highway association. The following figures are only for purposes of an example and are not the actual figures.  If you are held to be 60% negligent and the state highway association is held to be 40% negligent, this means that you could only recover 40% of your damages (property damage and personal injury) from the highway association.  Your property damage claim is separate from your personal injury claim.  You can file a claim with the state.  Don't miss any filing deadlines when filing a claim with a state agency because missing the deadline to file an administrative claim may result in your right to file a lawsuit upon denial of the claim being denied for missing a filing deadline.  It may be possible to settle the case with the state agency's insurance carrier.  Your damages would be the property damage to your car and your separate personal injury claim.  If the state agency is accepting liability, you could get medical treatment and when released by the doctor upon completion of your medical treatment, file your personal injury claim which would consist of your medical bills, medical reports and documentation of any wage loss.  Compensation for the medical bills is straight reimbursement.  Compensation for wage loss is straight reimbursement.  The medical reports will document the nature and extent of your injury and will be used to determine compensation for pain and suffering which is an amount in addition to the medical bills.  If you are dissatisfied with settlement offers from the highway authority's insurance carrier, reject the settlement offers and file your lawsuit for negligence against the highway authority.  You should also name the state as a defendant in your lawsuit.  If the case is settled with the insurance carrier, NO lawsuit is filed.  If the case is NOT settled with the insurance carrier, you will need to file your lawsuit prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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