OPINION ISSUED AUGUST 8, 1988

ALBERTA D. O'DONNELL AND
JOHN G. O'DONNELL
VS.
DEPARTMENT OF FINANCE
AND ADMINISTRATION

(CC-82-248)

James T. Cooper, Attorney at Law, for claimants.
Robert D. Pollitt, Assistant Attorney General, for respondent.

WALLACE, JUDGE:

Claimant Alberta D. O'Donnell received injuries when she fell on a
sidewalk on the Kanawha
Boulevard side of the State Capitol in Charleston, West Virginia. The
incident occurred on
November 1, 1980. Mrs. O'Donnell was walking on the inside of the
sidewalk. Her husband,
claimant John G. O'Donnell, was walking on the outside of the sidewalk.
Behind the claimants
were Mrs. O'Donnell's mother, Mary Gallagher Doyle, and her aunt. The
group was proceeding
from California Avenue to the front steps of the Capitol to hear a band
concert by the Marshall
University band. Mrs. O'Donnell tripped over a raised portion of the
sidewalk. She sustained a
broken arm in the fall, for which she and her husband seek damages in
the amount of
$100,000.00.

Mrs. O'Donnell testified that the weather was cool, but it was a nice
day. It was approximately
20 minutes before noon. The sidewalk appeared to be in good condition.
She was wearing
low-heeled, sandal-type shoes. She stated that she caught her foot on
the sidewalk and fell face
down. After the fall, she and the others proceeded to the concert, but
left when her right arm
began to swell and became painful. It was necessary for her to have
surgery on her arm several
days later. She was incapacitated for one month after the surgery. She
has experienced pain and
suffering and problems with her left arm since the accident, which she
attributes to the injuries
received in this fall.

Claimant John G. O'Donnell testified that there appeared to be a gap of
approximately one
inch at the seam of the sidewalk where claimant Alberta O'Donnell fell.

The Court, having examined the record in this claim, is constrained to
find that there was no
evidence as to negligence on the part of the respondent which would
justify an award to the
claimants. The sidewalk was not in a state of disrepair. It was uneven
at the place of claimant's
fall, but sidewalks are more often than not uneven at the seams.
Therefore, the Court is of the
opinion to, and does, deny the claim.

Claim disallowed.