OPINION ISSUED DECEMBER 6, 1999
CLYDE W. BOYLES
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Andrew F. Tarr, Attorney at Law, for respondent.
Claimant brought this action for vehicle damage which occurred
when his vehicle struck a hole on Interstate 64, westbound, near
the Huntington airport. The westbound lane of Interstate 64 is
maintained by the respondent in Wayne County. The Court is of the
opinion to make an award for reasons more fully stated below.
The incident giving rise to this claim occurred on April 18,
1998, at approximately 10:30 p.m. The weather was wet, rainy and
dark. Claimant, who is domiciled in Greenup County, Kentucky, was
traveling west on Interstate 64 in Wayne County. Construction work
had commenced on Interstate 64, so traffic was merged into the
left-hand lane and claimant had reduced his vehicle speed to
approximately fifty-five miles per hour. Claimant did not know
that there was a hole on Interstate 64. Without warning,
claimant's 1997 Jeep Cherokee hit the hole on the interstate. The
hole was deep. Immediately, both of the tires on the driver's side
burst. As claimant made his way to the other side of the road, he
noticed four other vehicles that also had damaged tires. Because
two tires had burst, claimant had to have his vehicle towed.
Subsequently, claimant's vehicle was towed to the BP station on U.
S. Route 23, in Greenup County, Kentucky. Claimant had a
deductible of $500.00 on his collision insurance coverage. The
resulting damage to claimant's vehicle was $295.56, for two tires
and a tow bill.
Respondent denied liability for the accident in question.
Respondent acknowledges that claimant collided with the hole in the
westbound lane of I-64. However, respondent introduced evidence
that a contractor was doing repair work on this portion of I-64 on
the day in question pursuant to a contract between respondent and
the contractor. The contract between the respondent and contractor
included a "save harmless" provision and the respondent takes the
position that the "save harmless" provision constitutes a defense
to the claim against it. We disagree. We hold that the respondent
cannot avail itself of the protection of a "save harmless"
provision in a contract between the respondent and the respondent's
contractor as against an injured third party, the claimant, who is
not privy to said contract.
A review of the facts in this claim reveals that respondent's
employees who had a duty to inspect the site conditions of the
project failed to protect the traveling public from a hazardous condition and we hold that this failure constitutes negligence. In
a previous decision, Bailey v. Div. of Highways, (CC-98-146,
OPINION ISSUED September 8, 1999). The Court held that respondent
had a duty to inspect the construction site and to act upon its
inspection in a proper manner. Failure to do so was held to be
Accordingly, the Court is of the opinion to and does make an
award in the amount of $295.56 to claimant.
Award of $295.56