
    
      Opinion issued October 24, 1978
    
    RHODA RAYNETT McINTYRE vs. DEPARTMENT OF HIGHWAYS
    (No. D-737)
    
      Frank T. Litton and James M. Sturgeon, Jr., Attorneys at Law, for the claimant.
    
      James W. Withrow, Attorney at Law, for the respondent.
   RULEY, JUDGE:

On the night of Wednesday, May 17, 1972, the claimant, in company with her mother, went into the Cohen Drugstore on Washington Street in Pocatalico to do some shopping. They left the drugstore at about 10:00 P.M., intending to cross Washington Street at a point directly in front of it. While her mother was crossing the street uneventfully, the claimant stepped off the sidewalk into a pothole in the blacktop surface of the pavement adjacent to the curb, which caused her to fall. On cross-examination, she testified that the “oblong” hole was about a foot and a half long, four or five inches deep, and about thirty feet from the intersection of Rebecca Street. She also testified that, while it was not raining at the time of the accident, it had rained earlier in the evening and there was water in the hole. When she fell, the claimant was carrying packages containing various items including a hamster cage. The claimant was unaware of the hole until she stepped down into it. There was no claim that the respondent had actual knowledge of the pothole, but constructive knowledge was established, albeit without great weight, by the undisputed testimony of an expert witness who testified that, in his opinion, it would have taken more than two months for the hole to develop to its size at the time of the accident. Such constructive knowledge, without any remedial measures or warning action, establishes negligence on the part of the respondent. The Court could not conclude that the claimant was guilty of contributory negligence without resorting to speculation, and, accordingly, the issue of liability must be resolved in her favor.

Turning to the matter of damages, it appears that the claimant sustained abrasions of her right knee and a bruise of her right ankle. She has sought medical attention for those injuries on only two occasions, viz., May 22, 1972, and January 6, 1977, when she went to the office of Jean P. Cavender, M.D., incurring expense in the sum of $22.00. On the latter occasion, it was reported that

“She states that the right ankle and right knee ache and sometimes swell after being on them too much. She tried to work in a drug store last year and found that the joints were painful after being on them for 7-8 hours.”

but no objective symptoms were noted, and there was full range of motion in both joints. In view of the evidence, the Court is disposed to make an award in the sum of $500.00.

Award of $500.00.  