OPINION ISSUED DECEMBER 3, 1987
HARDEN D. ALFSTAD AND
PHYLLIS L. ALFSTAD
DEPARTMENT OF HIGHWAYS
Claimant Phyllis L. Alfstad appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
Claimants seek $381.09 for damage sustained to their automobile,
when it struck a hole in the surface of the highway. The claim was
originally filed solely in the
name of Phyllis L. Alfstad. The evidence revealed that the vehicle
titled jointly in the names
of both Harden D. and Phyllis L. Alfstad. The Court, then, upon its
motion, amended the
style of the claim to include the proper parties.
The accident occurred August 1986. Claimant Phyllis Alfstad was
operating her vehicle in an
easterly direction on Route 50 in Parkersburg, Wood County, West
Virginia. Her husband
accompanied her in the automobile. It was approximately 3:00 p.m.
raining at the time of
the accident. Claimant was unable to avoid the hole as there were
automobiles in front of her
automobile, behind her automobile, and to the left of her
She was travelling at
approximately 30-35 miles per hour. She estimated the hole to be
feet by three feet. She
testified that she distinguished the hole which her vehicle struck
a pothole. She alleges that
the hole is a "cut out hole," or one cut for the purpose of
construction. she travelled this route
two to three times weekly. She was unaware of the presence of the
at the time she struck
it, and Phyllis Alfstad did not observe construction at the site of
Thomas Franklin Badgett, Wood County Road Supervisor for
testified that he is
aware of the section of roadway which is the subject to this
Respondent was not
performing construction work in that area in August 1986. He
that respondent had
requested permission for resurfacing this road, and a number of
companies were cutting
out pavement and working on sidewalks during this time.
The testimony reveals that independent contractors were
the hole cut in the
pavement. This Court has held in the past that respondent cannot be
found liable for torts
committed by an independent contractor. Safeco Insurance Co. vs.
of Highways, 9
Ct.Cl 28 (1971). For that reason, the Court is of the opinion to,
must, deny this claim.