OPINION ISSUED OCTOBER 1, 1986
CONSTANCE J. TILLEY
DEPARTMENT OF HIGHWAYS
Paul O. Clay, Jr., Attorney at Law, for claimant.
Andrew Lopez, Attorney at Law, for respondent.
On May 13, 1985, at approximately 4:00 p.m., claimant, her
their two children
were in the Fayetteville area. As the weather was pleasant, they
to take a walk. It was
daylight at the time. The four of them proceeded to the walkway at
Canyon Run Park of the
New River Gorge. Claimant and her family proceeded down the stairs
the boardwalk. As
claimant stepped off the last step to the platform, her foot went
between two boards,
causing injury to her ankle. Claimant alleges that this section of
walkway was improperly
maintained. She seeks damages in the amount of $2,219.17 for
injury and the resultant
Claimant testified that a tree was growing up between the two
the walkway on
which she fell. She stated that there is a sign at this location
advising the public of the number of
steps there are to the bottom of the walkway. Claimant had observed
other sections with
boards which had been cut out to compensate for the growth of
Claimant testified that
none of the boards in the walkway were "flush together."
Claimant's husband, Jack Lee Tilley, testified that the steps of
approximately four feet in width. The tree at the site of this
was at least four feet away
from where claimant was standing. He was right beside claimant as
proceeded down the
The testimony revealed that claimant incurred medical expenses as
result of this accident.
She lost three days and part of a fourth day of work in her
as a part-time worker
for Heck's Department Store in Oak Hill. However, claimant
that she did not seek
emergency room services until the day following the incident.
The Court finds that the claimant was negligent in failing to
an adequate lookout upon
the boardwalk where she was walking. She was aware that due to the
and the distance
between the boards in the boardwalk, in this area, special care was
required. For this reason, the
Court disallows this claim.