Riffle v. Department of Highways

11 Ct. Cl. 246

• Court: West Virginia Court of Claims
• Decided: March 22, 1977
• Docket: No. CC-76-111
• Status: Published

Opinion

GARDEN, JUDGE:

The respondent owns and maintains a roadside park on Route 60, east of Barboursville, commonly referred to as Kiwanivista State Park. The park consists of a parking area, and from the parking área visitors ascend a flight to steps to a level area where picnic tables and sanitary facilities are provided and maintained for the enjoyment and use of visitors. The respondent also provided three garbage cans in the picnic area, where visitors may dispose of their trash or garbage.

On Sunday, July 25,1976, the claimant, after purchasing Colonel Sanders Kentucky Fried Chicken, stopped at the Park for a picnic lunch. She was accompanied by her husband and two children. She testified that they arrived at the Park around mid-afternoon, and that the weather conditions were beautiful. After completing their picnic lunch, and departing from the Park, the claimant proceeded to the area where the garbage cans were located, and as she approached one of the garbage cans, she stepped into a hole with her left foot which she claims she had not seen because of the presence of high grass which obscured her vision of the hole. However, on cross-examination she testified that she was carrying her purse in one hand and a bag of garbage or trash in the other, and that she was not looking at the ground as she walked toward the garbage can area. The claimant opined that perhaps a rat had dug the subject hole.

The claimant testified that she suffered immediate pain and had to be assisted to the car by her husband. The following day she went to St. Mary’s Hospital in Huntington where her ankle was examined and x-rayed in the emergency room. She was advised that no bones were fractured, but that she had sustained a sprained ankle. She was advised to stay off of her feet for a few days and to soak her ankle in a solution of Epsom salt and hot water. She did not seek further medical attention, and her total medical expenses at the emergency room amounted to $76.00. She had an uneventful recovery, but she testified that her left ankle still feels weak from time to time.

Russell Wilson testified on behalf of respondent that he was employed by respondent as a foreman in July of 1976 and worked out of the respondent’s headquarters in Barboursville and during the summer months was charged with the responsibility of maintaining roadside parks, including the Kiwanivista State Park. He further testified that he, together with two additional employees, maintained this particular roadside park every Monday and Friday and would mow the grass so that it never exceeded a height of two or three inches. He further indicated that if any holes were discovered that they would fill them with dirt and fertilizer, and that he had never seen a hole as described by the claimant near the garbage cans.

Without passing on the issue of negligence on the part of the claimant, we are of opinion that the record fails to disclose any actionable negligence on the part of the respondent, but on the contrary, we feel that the record amply demonstrates that respondent exercised reasonable care in the maintenance of this roadside park. By reason of the foregoing, we do not feel that the claimant is entitled to an award.

Claim disallowed.