OPINION ISSUED DECEMBER 3, 1987
MARGOT D. GROSE AND CHARLES W. GROSE
VS.
DEPARTMENT OF HIGHWAYS
(CC-86-260)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
During the first week in June in 1986 a substance, appearing to be
tar,
was placed on
Woodrums Lane, at the location of the claimants' home. The road has
an
elevation higher than
that of claimant's yard, and the substance seeped into the yard.
Damage
was done to claimants'
carpet, among other items. Claimants seek $1,802.42.
Claimant Margot D. Grose testified that their insurance company
paid
for the replacement of
claimants' carpet at a cost of $1,300.00. They have a $200.00
deductible, which claimants paid.
She stated that the substance was placed on Woodrums Lane one day
and
seeped to the surface
on the next day. She stated that her home is 35 feet from the road.
The
tar-like substance
seeped about one-half of that distance into her yard. Her two
teen-aged
grandchildren walked
through the year and tracked the substance into her home. Damage
was
done to the carpeting,
to the children's clothing, and to the mats in her automobile.
Mr. Nelson Lee Fowler, Assistance to the District Maintenance
Engineer,
Kanawha County,
for respondent, testified that he was familiar with this particular
resurfacing project. The liquid
asphalt that was used has been utilized for numerous years. Two
days
after the finished coat was
placed upon the road, respondent attempted to remedy the situation.
This
was a contract project
by West Virginia Paving Company, Inc. He received complaints
concerning
the work performed
under the contract.
It is the general rule that the employer of an independent
contractor
is not liable for torts
committed by the independent contractor. Safeco Insurance Company
vs.
Dept. of
Highways, 9 Ct.Cl. 28 (1971). As the evidence revealed that the
work was
under contract to
West Virginia Paving Company, Inc., the Court must deny the claim.
Claim disallowed.