
    
      OPINION ISSUED OCTOBER 1, 1986
    
    CONSTANCE J. TILLEY VS. DEPARTMENT OF HIGHWAYS
    (CC-85-246)
    Paul 0. Clay, Jr., Attorney at Law, for claimant.
    Andrew Lopez, Attorney at Law, for respondent.
   PER CURIAM:

On May 13, 1985, at approximately 4:00 p.m., claimant, her husband, and their two children were in the Fayetteville area. As the weather was pleasant, they decided to take a walk. It was daylight at the time. The four of them proceeded to the walkway at the Canyon Run Park of the New River Gorge. Claimant and her family proceeded down the stairs of the boardwalk. As claimant stepped off the last step to the platform, her foot went down between two boards, causing injury to her ankle. Claimant alleges that this section of the walkway was improperly maintained. She seeks damages in the amount of $2,219.17 for personal injury and the resultant medical expenses.

Claimant testified that a tree was growing up between the two boards of 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 trees. Claimant testified that none of the boards in the walkway were "flush together."

Claimant's husband, Jack Lee Tilley, testified that the steps of the boardwalk are approximately four feet in width. The tree at the site of this incident was at least four feet away from where claimant was standing. He was right beside claimant as she proceeded down the steps.

The testimony revealed that claimant incurred medical expenses as a result of this accident. She lost three days and part of a fourth day of work-in her employment as a part-time worker for Heck's Department Store in Oak Hill. However, claimant testified 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 maintain an adequate lookout upon the boardwalk where she was walking. She was aware that due to the trees and the distance between the boards in the boardwalk, in this area, special care was required. For this reason, the Court disallows this claim.

Claim disallowed.  