OPINION ISSUED JANUARY 17, 1986
HOWARD A. SNYDER
DEPARTMENT OF HIGHWAYS
Russell Jay Guthrie, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
The claimant was injured in a fall which occurred at a roadside
owned and operated by
respondent which is located on Route 55 near Wardensville, Hardy
West Virginia. The
fall occurred on Thursday, October 5, 1978. Claimant stopped at the
roadside park in the early
afternoon and went down a short flight of wooden stairs to a
When he went down the
stairs, he noticed that the handrail was down. As he went back up
stairs, he lost his balance
at about the third step and fell backwards, suffering injuries
a fracture of his left wrist.
He seeks $100,000.00 in damages.
Waldo Heishman, a truck driver employed by respondent, testified
in 1978 his duties
included maintaining the roadside park. He stated that he visited
park on Mondays and
Fridays to clean it and to perform any other maintenance that might
required. Mr. Heishman
said that the handrails were occasionally knocked down by vandals,
that he would fix the
rails when that occurred.
While the Court is sympathetic to the claimant, the law of West
Virginia is well settled that the
State is neither an insurer nor a guarantor of the safety of travellers
on its highways. Adkins v.
Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). This principle has been
extended to pedestrians.
The Court has held on several occasions that where a person has
travelled across an area and
then been injured upon returning, failure to exercise reasonable
and to maintain a proper
lookout was the proximate cause of the injury. See: Moore v. Dept.
Highways, 14 Ct.Cl. 179
(1982); Hall v. Board of Regents, 12 Ct.Cl. 232 (1978). The Court
no negligence on the
part of respondent and accordingly disallows the claim.