
    
      OPINION ISSUED AUGUST 8, 1988
    
    ALBERTA D. O'DONNELL AND JOHN G. O'DONNELL VS. DEPARTMENT OF FINANCE AND ADMINISTRATION
    (CC-82-248)
    James T. Cooper, Attorney at Law, for claimants.
    Robert D. Pollitt, Assistant Attorney General, for respondent.
   WALLACE, JUDGE:

Claimant Alberta D. O'Donnell received injuries when she fell on a sidewalk on the Kanawha Boulevard side of the State Capitol in Charleston, West Virginia. The 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 sidewalk. Behind the claimants were Mrs. O'Donnell's mother, Mary Gallagher Doyle, and her aunt. The group was proceeding from California Avenue to the front steps of the Capitol to hear a band concert by the Marshall University band. Mrs. O'Donnell tripped over a raised portion of the sidewalk. She sustained a broken arm in the fall, for which she and her husband seek damages in the amount of $100,000.00.

Mrs. O'Donnell testified that the weather was cool, but it was a nice day. It was approximately 20 minutes before noon. The sidewalk appeared to be in good condition. She was wearing low-heeled, sandal-type shoes. She stated that she caught her foot on 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. She has experienced pain and suffering and problems with her left arm since the accident, which she attributes to the injuries received in this fall.

Claimant John G. O'Donnell testified that there appeared to be a gap of approximately one inch at the seam of the sidewalk where claimant Alberta O'Donnell fell.

The Court, having examined the record in this claim, is constrained to 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 uneven 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.

Claim disallowed.  