OPINION ISSUED DECEMBER 8, 1987
JERRY R. COOPER
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
Claimant's son, Gary R. Cooper, was operating claimant's 1978 Ford
Fiesta automobile in a
westerly direction on Route 60 in front of the East Hills Mall, on
September 17, 1984, at
approximately 9:00 p.m. when the automobile struck the concrete
at that location. The
impact with the median resulted in the car being totalled. Gary R.
Cooper originally filed the
claim with both himself and his father, Jerry R. Cooper, as
The claimant, Jerry R.
Cooper, is the sole owner of the automobile; therefore, the Court,
its own motion, amended
the style of the claim designating Jerry R. Cooper as claimant.
seeks $1,176.00, which
amount represents the replacement value of the automobile.
Gary R. Cooper testified that, at the time of the incident, it was
dark, clear, and dry. He was
accompanied by Mike Gwinn, a friend. He was proceeding at between
40 mph to
Huntington. He stated that there is a left turn lane into the east
Hills, Mall. The yellow line which
is indicative of the left turn lane had not been removed when a new
concrete median was
erected. The former yellow markings followed into the median.
the left side of the
automobile which Gary R. Cooper was operating struck the median. He
described the concrete
median as being an island. He indicated that the median is
six inches tall and two
to three feet wide.
He further testified that he had driver this route three weeks to
month before this incident. At
the time of this incident, there were no warning signs. He stated
his vehicle was 25 to 30 feet
away from the median when he first noticed the division of the
away from the median, but failed to avoid it. He stated that he
that respondent erected
the new median, although he has no independent knowledge of that
Mr. Barry Warhoftig, a civil engineer with the Traffic Engineering
Division of respondent,
testified that the change in the traffic median was being
the Red Roof Inn, or
Crown American Corporation, under permit with respondent. He stated
he was not familiar
with the specific permit, but there is a bond associated with it.
not prepare the permit.
This Court has held in the past that if the record establishes
independent contractor was
engaged in the construction work, the respondent cannot be held
for the negligence, if any,
of such independent contractor [Paul vs. Dept. of Highways, 14
479 (1983); Harper
vs. Dept. of Highways, 13 Ct.Cl. 274 (1980); Safeco Ins. Co. vs.
of Highways, 9
Ct.Cl. 28 (1971)].