OPINION ISSUED AUGUST 8, 1988
ALBERTA D. O'DONNELL AND
JOHN G. O'DONNELL
DEPARTMENT OF FINANCE
James T. Cooper, Attorney at Law, for claimants.
Robert D. Pollitt, Assistant Attorney General, for respondent.
Claimant Alberta D. O'Donnell received injuries when she fell on
sidewalk on the Kanawha
Boulevard side of the State Capitol in Charleston, West Virginia.
incident occurred on
November 1, 1980. Mrs. O'Donnell was walking on the inside of the
sidewalk. Her husband,
claimant John G. O'Donnell, was walking on the outside of the
Behind the claimants
were Mrs. O'Donnell's mother, Mary Gallagher Doyle, and her aunt.
group was proceeding
from California Avenue to the front steps of the Capitol to hear a
concert by the Marshall
University band. Mrs. O'Donnell tripped over a raised portion of
sidewalk. She sustained a
broken arm in the fall, for which she and her husband seek damages
the amount of
Mrs. O'Donnell testified that the weather was cool, but it was a
day. It was approximately
20 minutes before noon. The sidewalk appeared to be in good
She was wearing
low-heeled, sandal-type shoes. She stated that she caught her foot
the sidewalk and fell face
down. After the fall, she and the others proceeded to the concert, but
left when her right arm
began to swell and became painful. It was necessary for her to have
surgery on her arm several
days later. She was incapacitated for one month after the surgery.
has experienced pain and
suffering and problems with her left arm since the accident, which
attributes to the injuries
received in this fall.
Claimant John G. O'Donnell testified that there appeared to be a
inch at the seam of the sidewalk where claimant Alberta O'Donnell
The Court, having examined the record in this claim, is
find that there was no
evidence as to negligence on the part of the respondent which would
justify an award to the
claimants. The sidewalk was not in a state of disrepair. It was
at the place of claimant's
fall, but sidewalks are more often than not uneven at the seams.
Therefore, the Court is of the
opinion to, and does, deny the claim.