MARTINSBURG – Attorneys for the City of Martinsburg and its Parks and Recreation board are arguing that a pothole on a walkway is an obvious hazard and could’ve been avoided.

A recent motion to dismiss filed by the two makes the argument against Danielle Hensell’s lawsuit, filed Feb. 25 in Berkeley County Circuit Court. Hensell claims she stepped into a pothole and broke her ankle on July 17, 2011, at War Memorial Park.

“The Board owed no duty to the plaintiff,” says the motion to dismiss, filed April 1 by Jeffrey W. Molenda and Mikaela D. Torbert of Pullin, Fowler, Flanagan, Brown & Poe.

“The only duty (owed) by the Board in regard to its operation and maintenance of the grounds of War Memorial Park is a general duty to the public as a whole.

“The Public Duty Doctrine precludes the Plaintiff’s cause of action.

“The hazard, to the extent one existed at War Memorial Park, was open and obvious.”

The motion to dismiss cited Senkus v. Moore, a state Supreme Court decision from 2000. In that case, plaintiff Jennie Senkus tripped over the corner of a scale situated on the floor in a corner of a hallway at a veterinary hospital.

Senkus testified that she did not remember anything obstructing her view of the scale and that she did not know why she didn’t see it. The Marion County Circuit Court granted the defendants summary judgment.

The Supreme Court, in a 3-2 vote with justices Larry Starcher and Warren McGraw dissenting, affirmed the Marion judgment.

“The fall by Ms. Senkus on the Appellees’ property is insufficient to prove that the Appellees were negligent,” the per curiam opinion says.

“While the Appellants contend that the scale was negligently placed on the premises, the Appellants failed to offer any evidence before the trial court to show that the placement of the scale breached any duty to them or that it was inherently dangerous or unsafe.

“Rather, the uncontradicted evidence is that Ms. Senkus’ negligent failure to watch where she was walking was the sole precipitating cause of the accident.”

Hensell’s complaint was filed by James J. Matzureff of Power, Beck & Matzureff in Martinsburg.

It says Hensell was walking from her vehicle back to McKee Pavilion when she stepped in the pothole, which was located within an asphalt crosswalk leading to a handicap ramp.

The pothole “was not open or obvious to pedestrians,” the complaint says.

Hensell says she sustained serious and permanent physical and mental injuries. She says she has lost future and past earnings and experienced a diminished earning capacity.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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