
    
      Opinion issued June 3, 1981
    
    FRANKLIN D. MULLINS and SARAH Y. MULLINS vs. DEPARTMENT OF HIGHWAYS
    (CC-78-198)
    
      Robert W. Lawson, Attorney at Law, for the claimants.
    
      Nancy J. Aliff, Attorney at Law, for the respondent.
   RULEY, JUDGE:

On September 8, 1977, at about 5:15 p.m., the claimant, Franklin D. Mullins, his wife and his brother were walking upon a temporary wooden sidewalk along the 36th Street Bridge over the Kanawha River in Charleston. The boardwalk was constructed with wooden slats 2-Vz” wide, %” thick and 36” long. The weather was clear and dry.

As they neared the north end of the boardwalk, they encountered a gap about 12” wide. Mr. Mullins stepped across it, but the slat on which he placed his foot broke and Mr. Mullins fell through the boardwalk, catching himself upon his arms. He was pulled out by his brother, went home and three hours later went to Charleston Area Medical Center, where he was treated for multiple abrasions and contusions. He remained there as a patient for three days. His only subsequent medical treatment was a single office visit on or about September 13, 1977. However, at the hearing on April 23, 1980, the claimant testified that he still suffered from neck pain, numbness in the right leg and general nervousness. The expense of hospitalization and medical treatment was $631.50. In addition, he incurred an indefinite amount of expense for valium.

While there was no evidence that the rexpondent had actual notice of any defect or weakness in the slat which broke under the claimant’s weight and precipitated his fall, it had constructive notice of the same because the temporary boardwalk had been in existence for two years and on two separate occasions before September 8, 1977, the respondent had been obliged to replace other broken slats. From those facts, the Court must conclude that negligence of the respondent proximately caused the accident. And, although the claimant crossed the boardwalk daily to get to and from his place of work, and knew of its general condition, he cannot be required to have forseen or anticipated that this particular slat would break since there was no evidence that it contained a defect which should have been apparent to a pedestrian exercising ordinary care.

In view of the evidence relating to the nature and extent of the claimant’s injuries, the Court is disposed to make an award in the sum of $1,500.00.

Award of $1,500.00.  