
    
      OPINION ISSUED DECEMBER 21, 1995
    
    BETTY MURPHY VS. DIVISION OF HIGHWAYS
    (CC-95-185)
    Claimant represents self.
    Andrew F. Tarr, Attorney at Law, for respondent.
   PER CURIAM:

The facts giving rise to this claim occurred on May 20, 1995, at approximately 9:00 a.m. At this time, the claimant, Betty Murphy, was walking on the stone shoulder along Route 10 near Lacoma, in Wyoming County. During her walk, the stone shoulder collapsed, and her leg fell into a hole. After the incident, Ms. Murphy’s niece came to her assistance. According to Ms. Murphy, the stone shoulder looked as if it had been recently repaired, and the hole was not visible before the stone shoulder collapsed. Photographs of the hole indicate it was located approximately six inches from the edge of the pavement.

As a result of the incident, Ms. Murphy’s leg was severely bruised, and she missed six days of work. Therefore, Ms. Murphy seeks an award of $457.04 from the respondent, Division of Highways, for her unpaid medical bills and lost wages. Claimant’s Exhibits #4 and #5 indicate Ms. Murphy’s medical bills total $92.00. In addition, Ms. Murphy testified that she earned $7.23 per hour and normally worked eight hours per day.

David Cox, the assistant maintenance supervisor for the respondent in Mingo County, testified that the hole was located on the respondent’s property along Route 10. According to Mr. Cox, road crews installed gabion baskets in the vicinity of the hole a few months before Ms. Murphy’s accident. This work was necessary because a portion of the roadway was washed out. However, Mr. Cox was unaware of any problems where Ms. Murphy injured her leg.

In West Virginia, the respondent has a duty to use a reasonable care and diligence in maintaining roadways under all circumstances. Hobbs v. Dept. of Highways, 13 Ct. Cl. 27 (1979).

The evidence in this claim indicates that the respondent was aware of the road problems in the vicinity of the hole, and the respondent had recently repaired a portion of the roadway near the hole. Nevertheless, the respondent failed properly to repair the portion of the shoulder where Ms. Murphy was injured. Therefore, it is the opinion of the Court that the respondent was negligent in its maintenance of the shoulder along Route 10. Accordingly, the Court makes an award to Ms. Murphy in the amount of $439.04 for her medical expenses, and $1,500.00 for pain and suffering, for a total award of $1,939.04.

Award of $1,939.04.  