
    
      Opinion issued March 27, 1985
    
    DORIS ROBERTS vs. DEPARTMENT OF HIGHWAYS
    (CC-82-234)
    James T. Steele, Jr., Attorney at Law, for claimant.
    Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

On May 23, 1981, claimant was attending a party near Castleman’s Run Lake in Brooke County, West Virginia. The party was at an outdoor shelter on property adjacent to Local Service Route 32. Claimant arrived at the party around 8:30 p.m. and entered the property by a gravel pathway. As claimant left the party at about 11:00 p.m., she did not leave by the pathway, but cut across the property and fell into the drainage ditch which runs along Route 32. As a result of the fall, claimant’s left ankle was fractured. She was hospitalized from May 24, 1981 until June 16, 1981, and during that time, she underwent four operations on her leg. She re-entered the hospital a year later for further treatment. Claimant seeks an award of $40,000.00, alleging that respondent was negligent in the maintenance of the drainage ditch.

The claimant testified that as she left the party, she was either walking fast or jogging slowly across the property toward the road. She stated that she thought it was just a flat field, and that she could not see the ditch. She said that there were no lights on the road. The only lights in the area were at the shelter, which claimant estimated was between 100 - 200 feet back from the road. There was also a bonfire at the shelter. Claimant said that she did not know why she cut across the field instead of using the path.

James Willis, maintenance foreman in Brooke County, testified that the drainage ditch in question was not unusual in any way. The ditch was cleaned sometime in the spring of 1981, and weeds were cut on the side of the ditch nearest the road. He stated that weeds were not cut on the other side, the direction claimant was approaching, because that was private property.

After careful review of the evidence presented, the Court can find no basis upon which to find respondent negligent. The drainage ditch was maintained as any other in this State and no breach of duty by respondent has been shown. Rather, the evidence indicates that the claimant was negligent in jogging across an unfamiliar, and dimly lit, field. Under the circumstances, the Court is of the opinion to, and does, disallow the claim.

Claim disallowed.  