Fuller v. Department of Highways

13 Ct. Cl. 272

• Court: West Virginia Court of Claims
• Decided: October 23, 1980
• Docket: CC-79-576
• Status: Published

Opinion

GARDEN, JUDGE:

On the morning of September 25, 1979, the claimant was driving her 1977 Camaro automobile on Campbell’s Creek Drive in Malden District, Kanawha County, West Virginia, when she struck a ditch across the roadway which had been dug for the installation of a drain.

The testimony of the claimant indicated that she was driving along Campbell’s Creek Drive when she came to a work area, and a flagman signaled her to drive through the ditch. The undercarriage of the Camaro struck the edge of the ditch, causing damage to the transmission of the vehicle. The claimant incurred $91.08 in repairs.

Fred Hess, the inspector for the Permits Department of the Department of Highways, testified that the project on Campbell’s Creek Drive was being performed for the Malden Public Service District by the Roger Au & Son Construction Company under a contract with the Public Service District. The contractor was not employed by the Department of Highways, and its only connection with the respondent was through a permit which the construction company had to obtain from the Department of Highways in order to perform the work. Due to the general rule that the respondent is not liable for the negligence of an independent contractor, this claim must be denied. See Safeco Insurance Company v. Dept. of Highways, 9 Ct. Cl. 28 (1971); Humphreys v. Dept. of Highways, Claim No. CC-78-199 (February 14, 1980).

Claim disallowed.