
    
      Opinion issued April 1, 1980
    
    NANCY J. THABET vs. DEPARTMENT OF HIGHWAYS
    (CC-79-206)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   RULEY, JUDGE:

The claimant was injured while jogging on the sidewalk between Jefferson Road and Springfield Avenue, adjacent to the Kanawha Turnpike in South Charleston, West Virginia, and filed this claim against the respondent. The Kanawha Turnpike is maintained by the respondent.

On Wednesday, May 9, 1979, at approximately 5:45 a.m., just before daylight, the claimant was jogging along the sidewalk in question. She had never jogged here previously as she had just recently moved into the neighborhood. She came upon a hardened pile of asphalt on the sidewalk about 1-1/2 feet in circumference and about 6 inches high. The claimant testified, “.. .by the time I saw it and tried to avoid it, I tripped on it and fell and tripped myself.”

The record indicates that the respondent had been patching the road the week of the accident. The pile of asphalt, left on the sidewalk by the respondnet without any warning to the public, was removed about a week after the accident.

The claimant sustained a cut on her chin which required six stitches. She broke a tooth which required a crown and will necessitate a root canal. As a result of these injuries, the claimant incurred the following bills: hospital emergency room - $77.00; dentist - $237.00, with an additional $225.00 for a root canal; and lost two days teaching at $63.76 per day or $127.52.

The Court is of the opinion, from the record, that the negligence of the respondent in failing to remove the asphalt was the proximate cause of claimant’s accident, and since the claimant was free of any negligence on her part, the Court makes an award to her in the amount of $666.52.

Award of $666.52.  