OPINION ISSUED OCTOBER 24, 1986
FARMERS & MECHANICS MUTUAL FIRE INSURANCE COMPANY OF W.VA.
MUTUAL PROTECTIVE ASSOCIATION OF W.VA.
DEPARTMENT OF HUMAN SERVICES
DEPARTMENT OF CORRECTIONS
Howard E. Krauskopf, Attorney at Law, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
The claimants insured the Harman Church of the Brethren located in
County, West Virginia. On or about October 26, 1977, two juveniles
were being confined
at the West Virginia Children's Home in Elkins, West Virginia, left
Home to run away. While
travelling to Bluefield, West Virginia, they entered the Harman
of the Brethren and
allegedly started a fire which destroyed the Church. Claimants
this claim for the loss of the
Church in the amount of $30,648.11.
At the hearing, a motion to amend the style of the claim in the
the Department of
Human Services as one of the respondents was sustained by the
claim was submitted
upon the pleadings and two depositions.
The deposition of Robert Byrd, one of the juveniles involved in
incident, revealed that he
and two other juveniles, all of whom were wards of the West
Children's Home in Elkins,
left the Home on the date in question riding bicycles which one of
juveniles had taken from a
yard. They rode the bicycles out of Elkins. One of the juveniles
separated to proceed to
Huttonsville, West Virginia while Robert Byrd and the other
proceeded on another road
with the intentions of travelling to Bluefield, West Virginia. The
boys abandoned the bicycles
and hitchhiked with a trucker who dropped them off on a road about
mile from the Church.
At the time, the boys did not know where they were so they walked
the road. They came
upon the Church and "went in the church for the collection money."
boys lit candles in the
Church as it was dark. At this point, Robert Byrd stated that he
not remember what
happened until he was back on the road, heard fire engines, and
back to see "black and
red smoke all over the place." He could not remember the facts
surrounding the cause of the fire.
The boys were then picked up by a woman from the West Virginia
Children's Home. She took
the boys back to the Home.
Robert Byrd indicated that he had been confined at the Children's
two and one-half weeks prior to the date of the incident. Previous
this confinement, he had
been treated while a patient of Lakin State Hospital during the
or summer, 1977. He
stated that he went freely to and from the Children's Home as did
other children. The
personnel at the Home did not prevent the children from coming and
The testimony of Audrey K. Byrd revealed that her son, Robert
first placed in
Lakin State Hospital by the Mercer County Circuit Court on Arson 1
charges. He was released
to his parents and the Department of Welfare. He was then placed in
Children's Home at Elkins. She had not visited the Home until after
Church was burned.
Claimants allege that the respondents negligently and recklessly
Robert C. Byrd into an
institution which did not have the proper facilities to prevent
and recurrence of past
The record in this claim does not substantiate the allegation of
knowledge on the part of the
personnel in charge of the West Virginia Children's Home of any
propensity on the part of
Robert to set fires or which would alert them to any behavior
from the other children
confined at the Home. There is, in fact, no proof as to how the
burned down or who set
the fire as the testimony of Robert Byrd is that he did not set the
nor did he know how the
This Court has previously denied a claim wherein juveniles burned
barn while wards of Sugar
Creek Children's Center as the record was devoid of any negligence
the part of the
respondent. Stemple vs. Dept. of Welfare, 13 Ct.Cl. 94 (1979). A
complete review of case law
in escape claims wherein property damage resulted from acts of the
escapees is provided in the
opinion of Tyre vs. Dept. of Corrections, 12 Ct.Cl. 263 (1979).
opinion concludes that
each claim must be taken on its own set of facts. The facts herein
not reveal a basis upon
which the Court may find negligence on the part of the respondents.
In view of the above, the Court is of the opinion to and does